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Hints: Indian Polity [1]

Section A

1. Explain what is parliamentary privileges. Also, bring out the dispute between thefundamental rights of citizens and privilege of the legislature.

Hints:

Article 105 and 194 of the constitution of India deals with the power, privileges and immunities ofparliament and its members and of their state legislature and their members respectively.

Privileges can be classified in two parts

• Individual privileges

– Freedom of Speech No member is liable to any proceedings in any court for anything saidor any vote given by him in Parliament.

– Freedom from arrest He can’t be arrested during the session of Parliament and 40 daysbefore the beginning and 40 days after the end of a session.

– Exemption from jury service.

• Collective privileges-

– Right to publish reports, debates and proceedings and also the right to prohibit others fromdoing it.

– Right to exclude strangers from its proceedings and hold secret sittings.

– The right to punish members and outsiders for breach of its privileges

– The right to regulate the internal affairs of the House

Thus, the legislators are granted with some special rights as compared to normal citizens. This is toensure the independence and effectiveness of their actions. Without these, the Houses can neithermaintain their authority, dignity and honor nor can protect their members from any obstruction inthe discharge of their parliamentary responsibilities.

However, of late civil rights activists have raised voice against such privileges and the major argumentis, why shouldn’t our legislators’ freedom of speech, like the freedom of speech of citizens, be subjectto the sovereignty and integrity of the nation, public order, friendly relations with foreign states,incitement of an offence or defamation as mentioned in Article 19(2). The ‘sovereign people ofIndia’ have a restricted right to free speech but ‘their servants or representatives’ have an absolutefreedom of speech in the Houses. There can be some rationalization regarding these, particularlyregarding some protections like, freedom from arrest.

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[ 2 ] Hints: Indian Polity

Associated Concepts

Judicial Review of Parliamentary Privileges

Parliamentary privileges are the special right, advantage or benefit conferred on a particular person.It is a peculiar advantage or favour granted to one person as against another to do certain acts”.

Parliamentary privileges can be classified into two broad categories:

• Those that are enjoyed by each House of Parliament collectively, and

• Those that are enjoyed by the members individually.

Article 105 of the Constitution relating to the “Powers, privileges and immunities of Parliamentand its members” and Article 194 relating to the State Legislatures and their members containcertain enumerated privileges and powers while leaving room for a large number of uncodified andunenumerated privileges to continue.

So, the privileges are discussed below:

Privileges of Parliamentarians

• Freedom of Speech: According to the Indian Constitution, the members of Parliament enjoyfreedom of speech and expression.

No member can be taken to task anywhere outside the four walls of the House (e.g. court of law) orcannot be discriminated against for expressing his/her views in the House and its Committees.

• Freedom from Arrest: It is understood that no member shall be arrested in a civil case 40days before and after the adjournment of the House (Lok Sabha or Rajya Sabha) and alsowhen the House is in session. It also means that no member can be arrested within theprecincts of the Parliament without the permission of the House to which he/she belongs.

• Exemption from attendance as witnesses: The members of Parliament also enjoy freedomfrom attendance as witnesses.

Privileges of Parliament (both the houses)

• Right to publish debates and proceedings: Though by convention, the Parliament does notprohibit the press to publish its proceedings, yet technically the House has every such rightto forbid such publication.

Again, while a member has the privilege of freedom of speech in Parliament, he has no right topublish it outside Parliament.

Anyone violating this rule can be held responsible for any libelous matter it may contain under thecommon law rules.

• Right to exclude strangers: Each house of Parliament enjoys the right to exclude strangers(nomembers or visitors) from the galleries at any time and to resolve to debate with closeddoors.

• Right to punish members and outsiders for breach of its privileges: In India, the Parliamenthas been given punitive powers to punish those who are adjudged guilty of contempt of theHouse. Such contempt can be committed by the members of any House or any outsider.When a member of the House is involved for parliamentary misbehavior or commits contempthe can be expelled from the House.

• Right to regulate the internal affairs of the House: The House has the right to regulate itsinternal affairs. A member of the House is free to say whatever he likes subject only to theinternal discipline of the House or the Committee concerned.




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Judicial review of Parliamentary Privileges:

The issue of Parliamentary privileges places judiciary and legislature at the loggerhead. On onehand Parliament claims absolute sovereignty in the matters of its privileges, while on the otherhand, the Judiciary as a custodian of Indian Constitution do not admit any restraint on its power ofjudicial review.

The Judiciary shoulders the primary responsibility of protecting the fundamental rights of the citizensin India, and if any citizen comes to it claiming violation of the same, the Judiciary has to entertainhis petition, even though it might be related to Parliamentary privileges.

The question of ParliamentCourt relationship often arises in privilege matters.

This involves several postulates:

• Who; whether the court or the Legislature, decides, whether a particular privilege claimedby a House exists or not?

• When a privilege is held to exist, Is House the final judge of how, in practice that privilegehas to be exercised?

• Can the Courts go into the question of validity or propriety of committal by a House for itscontempt or breach of privilege?

• Can the Courts interfere with the working of the Committee of privileges?

Case of West Bengal: The Speaker of the Assembly granted temporary permission to two communistM.L.As to remain on the Assembly premises in order to avoid arrest under the Preventive DetentionAct. The court observed that general immunity cannot be conferred upon Members from arrest.The only immunity permitted by established practice in Britain is that the arrest cannot be effectedwithin the precincts of the chamber when the House is actually sitting.

In practice the legislature claims an absolute power to commit a person for its contempts and ageneral warrant, if issued by it, has a nature of conclusive and free from judicial scrutiny. Thequestion however raised whether such a claim can be accepted in India which has writtenConstitution with fundament rights and doctrine of judicial review of legislative action as basicstructure of the constitution.

The Judiciary admits the fact that the Parliament is immune from its jurisdiction with regard to itsinternal matters, which itself is one of the necessary privilege of the Parliament. Though the Courthas accepted this position in theory, in practice on various occasions judiciary has extended itsadjudicators powers on the privileges of Parliament and State Legislatures.

The Courts being the custodian of the Constitution and the fundamental rights of the citizens, wereforced to decide the issues though, they were related to powers, privileges and immunities of theParliament and concerned to internal proceedings of the Parliament.

2. Section 123 of the Representation of People’s Act, 1951 (Act) impose restrictions onspeech thus discuss the limits of those restrictions and the purpose of the law.

Hints:

Section 123 specifically lists the corrupt practices used by the representatives to gain votes. Thesignificance of the act is that it:

• Prevents widespread use of identity politics to gain votes.

• By terming any activity which uses religion for electoral purposes as corrupt practice, the actmakes sure that religion is separated from the elections. SC later recognized the same valuein Bommai case.




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• The Act is intended to ensure free and fair elections in a democracy where universal adultfranchise is guaranteed by Articles 325 and 326 of the Indian Constitution.

Restrictions in this section on freedom of speech:

Certain practices were categorized as “corrupt practices” under Section 123 of the Act, one of thembeing appeal by candidates for votes on the grounds of religion, race, caste, community or languageor the use of, or appeal to religious symbols. A corrupt practice, if proved, would entail to adeclaration of the election of such candidate to be void under Section 100 of the Act.

However, it does not restrict freedom of speech and gives greater choice to people because:

• Supreme court judgment nowhere suggested that all references in electoral speeches toreligion or caste, etc., would amount to a “corrupt practice”. In fact, during the argumentsit was specifically suggested that if the appeal was intended to correct a historical orconstitutional wrong or was intended to preserve and protect fundamental entitlementsunder the Indian Constitution, it would not be a corrupt practice. This is what the precedentsof the Supreme Court itself have indicated.

• Strives to make socioeconomic development as the main agenda of elections as againstgarnering votes in the name of religion, caste, community etc. which will eventually help inraising social parameters such as education, health, women empowerment, equality forvulnerable etc.

• Seeks to promote peace and harmony between people who were earlier being divided oncommunal lines by vested interests.

• Giving teeth to the Election Commission by empowering it to disqualify candidature asrecommended by the 2nd ARC, and hence to conduct fair elections.

Associated Concepts

Section 123(3) of the Representation of the People Act, defines a corrupt electoral practice as follows:

• “The appeal by a candidate or his agent or by any other person with the consent of acandidate or his election agent to vote or refrain from voting for any person on the groundof his religion, race, caste, community.”

• The section does not specify whether “his” refers to the speaker seeking votes, or the audiencefrom whom votes are being sought.

• Section 123(3) of the Representation of Peoples Act states that the promotion of, or attemptto promote, feelings hatred between different classes of the citizens of India on grounds ofreligion, caste, community, by a candidate is legally banned.

3. Free and fair elections are necessary, but not a sufficient condition for efficient workingof a democracy. Examine.

Hints:

Elections form the bedrock of the any democracy in the world. They provide people the chance toparticipate in the leadership selection process and ensure the following:

• Choice of leadership

• Change of leadership

• Political participation; not just voting, but also to get elected




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• Selfcorrective system

The most common form of election in most democracies is Firstpastthepost System, which despiteits defects, is least complex and least time taking election for a large population.

Defects in First-past-the-post System:

Even free and fair elections might not produce elected officials that are fully representative of thevoters. In firstpastthepost systems, it takes only a 1 vote plurality to win the seat. In theory, anelectorate split down the middle could produce a legislature heavily weighted toward one party orthe other depending on the distribution of voters. For example, in the last American congressionalelections, there were more votes for democrats nationwide, but republicans won more seats.

Imperfect Election:

Elections are the best and perhaps only way of maintaining a democracy. Nondemocratic countriesthat have sham elections ensure that they are not free and fair by various means:

• Choosing who can run (for example, Hong Kong)

• Fraudulent vote counting

• Use of government resources to promote favored candidates

• Suppression of the opposition’s message, e.g., no airtime, or unrelenting criticism of oppositioncandidates on government owned/controlled/influenced media

Are elections enough:

The recentlyreleased World Development Report (WDR) 2017 focusing on governance has a fewinteresting points, or counterpoints, on this complex issue. The report broadly analyses what makesgovernment policies work for the benefit of people in the “real” world?

The number of electoral democracies has more than doubled in the last three decades—from 40 in1980 to 94 in 2012. But, at the same time, there is a sharp decline of faith in electoral democracies.Similarly, it is also understood, that civil society has not only increased its presence and influence,but also has become a strong pressure group, which ensures reforms and good governance, inmany countries. Thus, a concept of participatory democracy, where a citizen participates in thepolitical process continuously, and not just a 45 years interval, is necessary for proper functioningof democracy.

Associated Concepts

The stability and strength of a democracy depends not on the question “how many people arechoosing the rulers?” (democracy), but rather with the question “how should political power berestrained in order to be compatible with individual freedom?” (liberty).

The institutions below are not democratic in themselves, yet they serve to uphold the democraticsystem, by ensuring dispersion of power. These are unelected organizations that can temper andtame public passions, educate citizens and preserve liberty.

These institutions should be protected in a constitution before elections begin, together with the ruleof law, separation of powers, and the protection of basic human rights, including freedom of speech,assembly, religion, and property rights.

• Free and private press. If the state controls all media, they would probably strongly supportthe regime and critique would be suppressed. This allows the rulers to move away fromdemocracy without the populace being aware.




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• Autonomous and private universities. A private university is a gathering of intellectualsfree to pursue the scientific endeavor of their choosing. It is an important intellectual counterweight to the government elites’ version of the truth, and often a real counterweight inpower.

• Independent supreme court. A truly independent supreme court is a nobrainer. It guaranteesthat the people in power will be held accountable for their actions, and that the constitutionis upheld.

• Independent central bank. Extensive evidence shows that governments without independentcentral banks use their moneyprinting ability to “buy” elections. Meaning that they printmoney in the runup to the elections, giving the impression that everything is going swell.An independent central bank assures more stable money supply, and removes this crucialtool for aspiring autocrats.

These safeguards are not themselves democratic, as in responsive to majority rule. They areconstitutional limitations on democracy, what you may call regulations on democracy. Historyshows that a system without these safeguards can quickly move to become an illiberal democracy,or worse. Illiberal democracy is a governing system in which, although elections take place, citizensare cut off from knowledge about the activities of those who exercise real power because of the lackof civil liberties.

4. The absence of planning of Parliament’s calendar and business directly impacts the

quality of debate in Parli ament. Do you agree? Compare the working of Indian

Parliament with respect to Britain in the above case.

Hints:

Every session of Parliament is crucial for the governance of the country. Therefore, it is important

that its dates and schedule are decided in advance and it is made sure that all the planned business

is carried out, but frequent disruptions, walkouts, indiscipline and sometimes, lowattendance,

shows that, situation is far from ideal in India.

The absence of planning of Parliament’s calendar and business directly impacts the quality of debate

in Parliament.

• Political parties cannot choose in advance which of their MPs will participate in a particulardiscussion.

• This then reduces the time available to MPs to prepare for a nuanced debate on a legislativeor policy issue. Many times, MPs only get a few hours to perfect their arguments on lawsthat will impact the entire country.

• These debates hold the key to interpreting the intent of Parliament while making a law.When the judiciary has to adjudicate on laws at a later date it relies on these debates inParliament to get a sense of the legislatures’ intent on an issue.

• Successive governments have been guilty of springing legislative proposals before the twohouses at the last minute. These have resulted in reducing Parliament from a deliberativeinstitution that scrutinizes laws to a body that merely rubber stamps government bills.

• The lack of planning of the business of Parliament also creates uncertainty about policy rollouts in the country.

– For example, it was unclear as to when the Goods and Services Tax Bills would finally getpassed by Parliament.




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– Similarly, the bill which increases maternity benefits for women was stuck in Parliament forsome time before both houses passed it.

Working of Indian parliament Vs British:

• In UK, the calendar of sitting days of Parliament is fixed at the beginning of the year.Parliament meets throughout the year with identified dates for holidays.

– Indian system is completely the opposite. Parliament meets only on specified dates and is inrecess for the rest of the year.

• In UK, there is clarity about the number of days that the legislature will meet.

– This helps in the scheduling of legislative and other business. Government Bills are slottedinto the schedule of the year.

– It gives interested stakeholders adequate time to prepare and advocate for their positions.

– This is not done in India

• Speaker chart out the entire calendar year as soon as new government is formed, markingperiods of recess, hours of meeting every day of the week, on which opposition gets preferenceto raise issues.

– This is not done in India

Associated Concepts

Parliament planning:

• For any session of Parliament, there are two important things that need to be planned.

– The first is the sitting days of the two houses

– The second is the list of legislative business to be undertaken during those days.

• Both of these are the responsibility of the government. The Constitution specifies that thegovernment decides when to summon Parliament and that there should not be a gap ofmore than six months between two parliament sessions.

• Usually, the exact dates of parliamentary sittings are declared less than a month before thebeginning of a session of Parliament. The government’s legislative agenda, on the otherhand, is known less than a week before the start of a session.

• For this session MPs received the information about the dates of the session and thegovernment’s legislative agenda very late.

• The Parliament performance over the years has been decline. For example, last Lok Sabhahas lost 79% of its scheduled time.

What needs to be done or parliamentary reforms needed are:

• Parliament should meet around the year instead of three sessions.

• MP’s get sufficient time to raise issues they think important. For example,

• The most fundamental of these reforms is planning of our parliamentary calendar. In itsabsence, India will continue to witness legislative processes being circumvented and thequality of debate further deteriorating in both houses of Parliament.

• Reserve days for Opposition to set agenda for Parliament:




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– This will ensure that Government cannot shy away from discussing issues are inconvenientto it and in other days parliamentary work won’t suffer and gets adequate time for discussion.

– This practice is being followed in Canada which allots 22 days every calendar year foropposition.

Committee on Ethics can be given more authority, Code of ethics be promulgated, Work conductedin Parliament be linked to the pay of MPs, name of disruptors of session be put up on Parliamentwebsite.

5. The DPSPs are an unofficial manifesto for good governance, if a political party canonly adhere to them properly, when in power, there is no need for any other manifesto.Examine.

Hints:

DPSP enshrined in PartIV (A 36 to 51) of the constitution are borrowed from Ireland constitution.It guarantees social and economic democracy and tries to establish welfare state.

The Directive Principles are nonjusticiable in nature, the Constitution under Article 37 make itclear that these principles are fundamental in the governance of the country and it shall be the dutyof the state to apply these principles in making laws. They impose an ethical responsibility on thestate authorities for their application, but the real force behind them is political, that is, publicopinion.

Though the directiveprinciples are nonjusticiable, they have been enforced through variousdecisions of the successive governments.

Dr B. R. Ambedkar also pointed out that a government which rests on popular vote can hardlyignore the Directive Principles while shaping its policy. If any government ignores them, it willcertainly have to answer for that before the electorate at the election time.

The framers of the Indian Constitution made the Directive Principles nonjusticiable and legallynonenforceable due to the following reasons as listed below:

• The country did not possess sufficient financial resources to implement them.

• The presence of vast diversity and backwardness in the country would stand in the way oftheir implementation.

• The newly born independent Indian State with its many preoccupations might be crushedunder the burden unless it was free to decide the order, the time, the place and the modeof fulfilling them.

Henceforth, taking a pragmatic view, the framers of our constitution refrained from giving teeth tothe directive principles. They believed more in an awakened public opinion rather than in courtprocedures as the decisive sanction for the execution of these principles. Also, an idea was to providea common political manifesto. ‘A ruling party, irrespective of its political ideology, has to recognizethe fact that these principles are intended to be its guide, philosopher and friend in its legislativeand executive acts’.

How DPSP serve as governance manifesto:

• They serve as a crucial test for the performance of the government. The people can examinethe policies and programmes of the government in the light of these constitutional declarations.

• Their implementation makes a favorable atmosphere for the full and proper enjoyment ofthe fundamental rights by the citizens. Political democracy, without economic democracy,has no meaning.




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• They are supplementary to the fundamental rights of the citizens. They are intended to fillin the vacuum in Part III by providing for social and economic rights.

• They enable the opposition to exercise influence and control over the operations of thegovernment. The Opposition can blame the ruling party on the ground that its activities areopposed to the Directives.

Associated Concepts

Criticism of the Directive Principles

Many constitutional and political experts as well as members of the constituent assembly criticizedthe Directive Principles on the following grounds:

No Legal Force

The criticism of the Directive principles was mainly the consequence of their nonjusticiable nature.While K T Shah dubbed them as ‘pious superfluities’ and compared them with ‘a cheque on a bank,payable only when the resources of the bank permit’, Nasiruddin contended that these principlesare ‘no better than the new year’s resolutions, which are broken on the second of January’.

T.T. Krishnamachari described the Directives as a veritable dustbin of sentiments, while K C Whearecalled them as a manifesto of aims and aspirations and suggested that they serve simply as moralhomily, and Sir Ivor Jennings observed them only as pious aspirations.

Illogically Arranged

According to the critics, the Directive Principles are not arranged in a sensible manner on the basisof a consistent philosophy. The declaration blends with the relatively insignificant issues with themost important economic and social questions. It combines rather inappropriately the modern withthe old and provisions suggested by the reason and science with provisions based purely on sentimentand prejudice.

Conservative

Sir Ivor Jennings observed the Directives to be on the basis of the political philosophy of the 19thcentury England. He remarked: ‘The ghosts of Sydney Webb and Beatrice Webb stalk through thepages of the text. Part IV of the Constitution expresses Fabian Socialism without the socialism’. Hesuggested that the Directives are deemed to be suitable in India in the middle of the twentiethcentury.

Constitutional Conflict

K Santhanam has stated that the Directive principles arise a constitutional conflict between

• The Centre and the states,

• The President and the Prime Minister, and

• The governor and the chief minister.

According to him, the Centre can give directions to the states with respect to the implementation ofthese principles, and in case of noncompliance, can dismiss the state government.

For instance, when the Prime Minister gets a bill which is violating the Directive Principles and ispassed by the Parliament, the president may reject the bill on the ground that these principles arefundamental to the governance of the country and hence, the ministry has no right to ignore them.The same constitutional conflict may arise at the state level between the governor and the chiefminister.




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[ 1 0 ] Hints: Indian Polity

6. Post-legislative scrutiny improves the quality of the laws. Do you think this kind ofsystem is needed in India? Analyse it taking into account the experience of othercountries.

Hints:

Although India has one of the highest numbers of laws on its statute books over 2,500 Acts just atthe central level its implementation record is distressingly poor.

The purpose of the review is to discover whether a law is working out in practice as it was intendedand if not, to understand the reason and address it quickly and costeffectively. A key benefitwould be the systematic collection of data that would be a prerequisite of any evaluation of thiskind.

Similarly, given the very high transfer of responsibility towards parliamentary and departmentalcommittees, from the legislature, it is no longer a choice, but an utmost necessity. It will not onlyuphold the public trust and confidence, but will also bring parliamentary disruptions under somewhatcontrol.

How can it be done?

1. Lessons from other countries:

• Among European countries, the UK required laws to be reviewed within three to five yearsof enactment. These reviews are conducted by existing Departmental Select Committees

• Germany, expost evaluation is systematic and based on a standardized methodology set outin guidelines for public administrators.

• France requires mandatory periodic evaluation of legislation, which is enshrined within thelaw itself.

2. The present government’s promise of delivering “good governance” could get a boost if itadopted postlegislative evaluation as a policy tool.

3. The Law Commission or an expert committee could first decide, with inputs from governmentand nongovernment stakeholders, the scope of postlegislative scrutiny by defining itsboundaries, the types of legislation that require scrutiny, benchmarks of a successful legislation,the procedure for scrutiny, the body that should undertake the scrutiny and the timeperiodof the scrutiny. India could then incorporate within its legislation, a provision for systematicreview of the law.

7. Elaborate the structure of bicameral legislature in Indian states? Also examine the needfor such an institution?

Hints:

Structure of bicameral legislature:

• A bicameral legislature comprises a lower house and an upper house. While the former isknown as the Legislative Assembly (Vidhan Sabha), the latter is called the Legislative Council(Vidhan Parishad).

• The Constitution of India had the provision of establishing bicameral legislatures in morepopulous states of the country. Initially states such as Tamil Nadu, West Bengal, MadhyaPradesh, Punjab etc. were slated to have two houses. However, some of the states felt thatLegislative Council would be an “unnecessary adjunct. “




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• The Constitution grants every state the right to create or abolish Legislative Council, whichdecides whether it will have a unicameral or bicameral legislature.

• According to Article 169 of the Indian Constitution, the state legislative assembly has to passa resolution demanding creation or abolition of the council. The Parliament can then makeit a law by passing it like any ordinary bill. It doesn’t require any amendment to theConstitution

• The lower house wields greater legislative power as compared to the upper house. In abicameral set up, a motion of no confidence against the state government can only beintroduced in the Vidhan Sabha.

• Once passed by the majority, the Chief Minister and his Council of Ministers are bound toresign. Similarly, a money bill can only be introduced in Vidhan Sabha. Like Rajya Sabha,the upper house in the state can’t sit on any legislation passed by the lower house. It hasto approve the bill after 14 days.

Why is it needed?

• To act as a check on hasty actions by the popularly elected House

• To ensure that individuals who might not be cut out for the roughandtumble of directelections too are able to contribute to the legislative process.

• It was also suggested that having a second chamber would allow for more debate andsharing of work between the Houses.

Why it is not needed?

• They can be used to park leaders who have not been able to win an election.

• They can be used to delay progressive legislation.

• They would strain state finances.

• The constitution gives Councils limited legislative powers.

– Unlike Rajya Sabha which has substantial powers to shape nonfinancial legislation, LegislativeCouncils lack the constitutional mandate to do so.

– Legislative Assemblies have the power to override suggestions/amendments made to alegislation by the Council.

– Also, while Rajya Sabha MPs can vote in the election of the President and VicePresident,members of Legislative Councils can’t. MLCs also can’t vote in the elections of Rajya Sabhamembers.

8. Fast track courts were created with an objective of reducing the pendency in judiciary,however, it was not successful in its objective. Evaluate the statement and examine theperformance of fast track courts, so far?

Hints:

To expedite justice delivery, in cases of heinous crimes and those against women, children and theelderly, the government has earmarked over Rs 4,100 crore to set up 1,800 fasttrack courts to helpbring down pendency of cases, one of the largest allocation of funds so far to set up such specialcourts. These funds will be available to states till 2020.




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Fasttrack courts have also been set up on the orders of various High Courts to accelerate disposalof cases on matters ranging from sexual offences, anticorruption, riots, and cheque bouncing.

Performance:

• According to latest information from high courts and state governments, over 32 lakh caseswere disposed of by fasttrack courts, out of the 39lakh transferred to them during the firsttwo phases.

• Experts conclude that fast track courts have been quite successful in reducing the backlogof cases.

However, given the total backlog, this number is too small. We need fast track courts to managemore cases. In reality, rather than increasing the number of such courts, states are reducing them,out of 1500 fast track courts, working at one point of time, only about 800 are functional. This ishappening due to lack of funds transfer from state governments.

Criticism:

• In the process of trying to speed up the case, the procedural safeguards like the presumptionof innocence, the right to sufficient time and facilities to prepare the defence, and the rightto examine witnesses and have their own witnesses examined which an accused is entitledto goes away.

• Makes the people working on the case take shortcuts, which is unfair to both the victim andthe accused.

• They also do not have more sophisticated administrative or infrastructural support thanregular courts. When fasttrack courts for rape cases were first propositioned, they weresupposed to be accompanied by additional judges and infrastructure, like courtrooms. Thisnever happened,

• Central funding to states for FTCs established under the 11th Finance Commission awardhas been discontinued with effect from April 2011

• The quality of judgments issued by fast track courts is questionable as these courts are givenunrealistic targets of cases to finish. They are told not to get involved in too much technicality.

• Notably large fraction of the decisions of fast track courts have been overturned by highercourts on appeal.

• Many of the judges are retirees who are on contracts and not really accountable to the highcourt for any miscarriage of justice.

Way forward:

• Government needs to work towards rationalisation of judicial structures. In other jurisdictionssuch as the United Kingdom and Canada, one agency is responsible for the administrationof various judicial bodies, including tribunals.

– This ensures that different judicial authorities can be monitored centrally, that resources canbe distributed among them proportionately, and that reforms can be implemented in acoordinated fashion.

Associated Concepts

Fast track courts:

• Fasttrack courts were constituted for the first time in 2000 for a period of five years withan allocation of Rs 500 crore.




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• The scheme was extended by another five years, and again till 2011, with an additionalallocation of Rs 509 crore.

• According to the law ministry, at least 1,700 fasttrack courts were set up by states duringthe first two phases.

• FTCs were to be established by the state governments in consultation with the respectiveHigh Courts. An average of five FTCs were to be established in each district of the country.

• The judges for these FTCs were appointed on an adhoc basis. The judges were selected bythe High Courts of the respective states.

• There are primarily three sources of recruitment. First, by promoting members from amongstthe eligible judicial officers; second, by appointing retired High Court judges and third, fromamongst members of the Bar of the respective state.

• Setting up of fast track courts is the responsibility of the state governments, unless there isa special scheme launched by the Centre providing grants for the same.

9. National Human Right Commission (NHRC) is termed as toothless tiger by the SupremeCourt of India. In this regard, examine the functioning and effectiveness of the institution.Also suggest the measures required to enhance the legitimacy and credibility of theinstitution?

Hints:

NHRC is a statutory body, constituted under the Protection of Human Rights Act, 1993, to protectand promote human rights related to life, liberty, equality and dignity of individuals. Though NHRCushered the era of awareness of human rights and their promotion, registered number of cases ofhuman right violations has significantly increased but readdressed of these cases is not as per expectedlines due to weak structuring and ineffective functioning of the institution.

The Global Alliance for National Human Rights Institutions (GANHRI), affiliated to the UN HighCommissioner for Human Rights, has also deferred National Human Rights Commission (NHRC)reaccreditation.

Criticism of NHRC:

• NHRC’s recommendations do not percolate to the ground level as the NHRC does not have

the backing of the Protection of Human Rights Act to penalize authorities which do not

implement its orders.

• Flaws in Selection process: not sufficiently broad and transparent, lack of uniform andprecise criteria for appointing members, no advertisement for vacancies in top posts is given

out.

• Nonfilling of vacancies: Most human rights commissions are functioning with less than the

prescribed Members. This limits the capacity of commissions to deal promptly with complaints.

• As nonjudicial member positions are increasingly being filled by exbureaucrats.

• The NHRC is not empowered to act when human rights violations through private partiestake place.

• Scarcity of resources – or rather, resources not being used for human rights related functions

– is another big problem.




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• Bureaucratic style of functioning: As human rights commissions primarily draw their stafffrom government departments – either on deputation or reemployment after retirement – theinternal atmosphere is usually just like any other government office.

• The Act does not extend to Jammu and Kashmir and hence the commission has to keep itseyes closed to human rights violations there.

Steps to be taken to enhance effectiveness, legitimacy and credibility of the institution:

• The effectiveness of commissions will be greatly enhanced if their decisions are immediatelymade enforceable by the government. This will save considerable time and energy.

• Not allowing NHRC to independently investigate complaints against the military and securityforces only compounds the problems and furthers cultures of impunity.

• If it is to play a meaningful role in society, it must include civil society human rights activistsas members in nonjudicial position, rather than ex bureaucrats.

• NHRC needs to develop an independent cadre of staff with appropriate experience. Thisproblem can be rectified by employing specially recruited and qualified staff to help clear theheavy inflow of complaints.

• A culture of human rights ought to be promoted through education. Human rights educationin India is extremely important, given the fact that society is witness to numerous violationsand abuse of powers and that the ability of the people to fight these injustices is limited. Thestrategy for inculcating human rights culture among the people needs to be based on anumber of factors: social, legal, political, judicial, and institutional.

It is important that Human Rights Commissions (HRCs) succeed in their efforts to promote andprotect human rights. The legitimacy and credibility of these commissions rest on their ability toaddress the problems relating to human rights in a society. It is for Parliament to decide whether toconfer NHRC with some kind of contempt powers to make authorities implement itsrecommendations and establish them as an institution of eminence and credibility.

Associated Concepts

NHRC:

India’s National Human Rights Commission (NHRC) was created in 1993, as a response to increasinginternational awareness of human rights, after India entered the global economic arena. The UnitedNations Human Rights Commission adopted the “Paris Principles”, a guiding light for resolvinginternational human rights issues. For India, it was critical to secure international trade partnershipand show compliance with global labour standards, including a refusal to support unethical practiceslike child labour. While human rights were enshrined in the Indian Constitution, it was the lack ofa system to protect and safeguard against exploitation that made it necessary to support charitiesfighting for children’s rights in India.

Therefore, the Human Rights Commission in India, armed with a defining intent of protectinghuman rights, provided a definitive framework to NGOs in India, and other initiatives working inthe fields of indigenous human rights.

The National Human Rights Commission in India derives its power from The Protection of HumanRights Act (TPHRA). Its composition enjoys a robust legal fortitude, with a panel that featuresformer judges of the Supreme Court, High Court, and people experienced in human rights policyand execution. It is presided by a retired Chief Justice of India, and Chairpersons of nationalcommissions of key human rights concerns Minorities, India’s Scheduled Classes and Tribes, andWomen.




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The Functions of the National Human Rights Commission

NHRC today enjoys a very wide mandate, receiving over 70,000 complaints every year. Through

recommendations and requests for inquiries, the Commission seeks to resolve human rights violations

across India.

Legal proceedings

It also can intervene in human rights proceedings, which may be pending before the court. NHRC

officials visit jails to inspect living conditions for inmates incarcerated for treatment, reformation or

protection.

Instrument of policy

As a body to oversee policy, the NHRC can review and make recommendations in Constitutional

and legal safeguards. It can also review international treaties and events that may compromise

human rights.

Human rights literacy

The NHRC also serves as the basis of human rights literacy in India, initiating awareness of rights

through publications, media channels, seminars etc. Common themes in India’s contemporary

human rights violation history include labour law, extrajudicial killing, sexual violence and LGBT

rights, violence and discrimination against women, children and minorities.

10. Reviving and strengthening the Departmentally Related Standing Committees (DRSCs)

can significantly improve the legislative process and effectiveness of parliament as an

institution. Examine, the role played by DRSCs and issues they are suffering from.

Hints:

Parliament plays a central role in our democracy, both Lok Sabha and the Rajya Sabha scrutinize

the work of the Government through several procedures. Beyond the visible work in the two Houses,

a substantial part of the work is carried out by committees. They evolved as parliamentary innovation

in 1993 to tackle the ‘guillotine’ of key legislature due to paucity of time. It has evolved as a ‘mini

parliament’ with proportional representation of all parties. There are 24 DRSCs. Each DRSC has 31

members, with 21 from Lok Sabha and 10 from Rajya Sabha. Seats on each Committee are allocated

to parties in proportion to their strength in the House.

Role played by DRSCs:

• It helps Parliament manage its business better. It is easier to examine a topic in depth by a

committee of 30 than by an assembly of 700. They scrutinizing Demand for Grant, bills of

concerned ministries, Consideration of annual reports and present a report.

• It enables input from experts and those who may be directly affected by a policy or legislation.

For example, the DRSCs often invite comments from the public and call people to testify.

• It ensures executive and financial accountability of the government. Several complex nature

and technical legislature and policy issues are referred to DRSC

• Being outside direct public glare allows members to discuss issues and reach consensus

without worrying about constituency pressures.

• An advantage in the Indian context is that the antidefection law does not apply to committees

— therefore, decisions are not usually made on party lines.




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• These committees allow members to focus on some specific areas and build their expertise,which helps them scrutinize issues more thoroughly.

Issues with DRSCs:

• All Bills are not referred to committees. Whereas during the period of the last two parliaments,

60 percent and 71 percent of all Bills were referred to committees, just 27 percent of Billsintroduced in the current Parliament have been so referred.

• Though rules mention that the Speaker of Lok Sabha or Chairman of Rajya Sabha refers theBill, this is usually done on the recommendation of the relevant minister.

• The recommendation of committees is not binding. It is for the Government or any othermember to move the relevant amendments, which may then be voted upon by the House.

• One major weakness of these committees is the lack of standing research support. They arebacked by the general support staff of Parliament and do not have a dedicated set ofresearchers associated with them. While they can (and often do) reach out to outside experts,there is no internal expertise.

• Low attendance of MPs at meetings; too many ministries under a committee; norms notfollowed by most political parties while nominating MPs to committees; and the constitutionof DRSCs for a year leaves very little time for specializations.

• Issue of transparency of the work of committees. All committees meet behind closed doorsand only the final report is published, with summary minutes. There have been argumentsthat the meetings should be televised or at least the full transcripts be published.

To improve the functioning of DRSCs, the recommendation of National Commission to Review theWorking of the Constitution (NCRWC) should be implemented. These include, DRSCs should beperiodically reviewed. All Bills should be referred to DRSCs. The DRSCs may finalize the secondreading stage in the Committee. Major reports of all Committees should be discussed in Parliamentespecially in cases where there is disagreement between a Committee and the government, creatingresearch teams, and improving the transparency of input from advocacy groups. Their performancewill improve the overall effectiveness of Parliament as an institution that makes laws, holds theGovernment accountable, and gives sanction for public spending.

Associated Concepts

Working of DRSC

The DRSC usually invites experts while scrutinizing Bills. However, this is not always the case,even for Bills with wide ramifications. For example, the DRSC that examined the Right to EducationBill, 2008 did not invite any expert witness; this Bill guarantees free education to all children agessix to 14.

Second, all Bills are not referred to committees. Whereas during the period of the last two parliaments,60 percent and 71 percent of all Bills were referred to committees, just 27 percent of Bills introducedin the current Parliament have been so referred.

Though rules mention that the Speaker of Lok Sabha or Chairman of Rajya Sabha refers the Bill,this is usually done on the recommendation of the relevant minister. The composition of RajyaSabha has helped improve scrutiny in some cases. The current government is in a minority in thatHouse, and Rajya Sabha has, in a number of instances, formed a select committee to examine a Billthat has been passed by Lok Sabha. Even a Bill as important as the Constitution Amendment toenable the GST was passed by Lok Sabha without reference to the DRSC; Rajya Sabha formed a




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Select Committee and several of its recommendations were incorporated into the Bill that waspassed.

Third, the recommendation of committees is not binding. It is for the Government or any othermember to move the relevant amendments, which may then be voted upon by the House. The ideais, committees are a small part of Parliament which make recommendations, and the full House hasthe authority and responsibility to make the final decision.

It may be relevant to highlight a new trend. Several Bills piloted by the Finance Ministry have beenreferred to speciallyformed joint committees of the two Houses rather than the DRSCs. Thoughone does not know the actual reason for this, one cannot but fail to notice that the DRSC is chairedby a member from the Congress while the joint committees were chaired by a BJP member.

As explained earlier, the DRSCs also examine other subjects and demand for grants. The Governmentreports back on the recommendations and the committees publish an action taken report. In thefiveyear period of the last Parliament, the Government accepted 54 per cent of the recommendations,the DRSC was satisfied by its response in 13 percent cases; it rejected 21 per cent of the responses,and did not get responses for 12 per cent of the recommendations.

One major weakness of these committees is the lack of standing research support. They are backedby the general support staff of Parliament and do not have a dedicated set of researchers associatedwith them. While they can (and often do) reach out to outside experts, there is no internal expertisethat can finesse such opinion. A related issue is the high churn in parliamentary membership. Ineach of the last three Lok Sabhas, over 50 per cent of the members elected were first time MPs. Asseveral of the experienced members become ministers, only a small pool of MPs gain subjectknowledge by being in a committee for long.

A final issue relates to the transparency of the work of committees. All committees meet behindclosed doors and only the final report is published, with summary minutes. There have beenarguments that the meetings should be televised or at least the full transcripts be published. Thecounterargument is committees work as discussion forums and often reach consensus, as there isno pressure on members to posture for their support base.

This would be lost if detailed proceedings were made public. A middle path would be to publish thesubmissions and evidence given by various experts and members of the public so that any advocacyis made more transparent while keeping the members free from constituency pressures.

In sum, The DRSC system has been a fairly successful experiment. It is important to furtherstrengthen its ability for detailed scrutiny of issues so that it helps parliament work better in itslawmaking and accountability roles. These would include mandatory examination of all Bills, creatingresearch teams, and improving the transparency of input from advocacy groups.

Many MPs call these committees “miniparliaments” and strengthening their working will improveParliament’s overall effectiveness.

Section B

11. What is the nature of Fundamental Duties? Why aren’t they given legal backing likeFundamental Rights? Can they be enforced under special circumstances? Debate, thecase for conscription in India, like many developed countries?

Hints:

Nature of fundamental duties:

Fundamental duties are obligatory in nature. But there is no provision in the constitution for directenforcement of these duties. There is no sanction either to prevent their violation.




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• As rights and duties are two sides of the same coin it is expected that one should observeone’s duties in order to seek the enforcement of the fundamental rights.

• Some of the Fundamental Duties belong to the class of moral duties and others and belongto the class of civic duties. For example, cherishing noble ideals of freedom struggle is amoral duty and respecting the constitution, National Flag and National Anthem is a civilduty.

Enforcement under special circumstances:

• There is neither specific provision for enforceability nor any specific prohibition. However,Fundamental Duties have an inherent element of compulsion regarding compliance.

• It is said that by their nature, it is not practicable to enforce the Fundamental Duties but canbe enforced by suitable legislation and departmental rules of conduct.

• The Supreme court reminded the administrators of the Government that they too are primarilythe citizens and therefore, their vision should be national interest. The primary responsibilityof an administrator is to perform his functions in the services of the nation as an enlightenedcitizen to strengthen a new democratic state. The public administrator should get rid of allmental reservations on narrow considerations of caste, religion or regional. He should havea wider concern for society as a whole. Otherwise he is not worthy to be an administrator.In short, the court held that the Fundamental Duties oblige the administrators of theGovernment to be good administrators.

• The duties as such are not legally enforceable in the Courts of law, but if a law has beenmade to prohibit any act or conduct in violation of the duties, it would be reasonablerestriction on the relevant Fundamental Rights.

Why they were not made necessary:

• Constitutional fathers felt that fundamental duties constituted an implied and inseparablepart of the chapter on fundamental rights and there was no need for a separate chapter onFundamental Duties.

• Some critics observed that more than 99% of the people were lawabiding. There was noneed to tell them to obey laws and abide by their duties.

• The main sweep of the freedom struggle, therefore, was towards assertion of the people’sright to national freedom. All these explain why the founding fathers of the Constitutiontook pains to ensure basic human rights in Part III of the Constitution.

• It seems that the people in the country had been concentrating much on rights that theytended to forget the importance of their duties and obligations towards the society and thenation which enabled them to claim; and exercise their rights.

Conscription:

• Conscription is the compulsory enlistment of people in a national service, most often amilitary service. It dates back to antiquity and continues in some countries to the present dayunder various names.

Reasons why India needs it are:

• It is a way of instilling maturity in young adults. Compulsory military service can giveperson a sense of discipline and patriotism.

• It is a great leveler.




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– You can come from a rich or poor background, any ethnic or religious community (and inthe case of India, any linguistic background) and you’re treated the same way. The time inthe armed forces helps mold young people and makes them more tolerant and accommodative.

• In all fairness, India has insecurities with neighbours. If the situation ever deteriorated to thepoint of war, then having a large pool of trained young men and women would work toIndia’s advantage.

• It may not be only preparing for war, but would also empower people for dealing with anyuntoward incident in their own locality.

• Besides being a means of remaining active and fit, it can also be useful for selfdefense.Military training can also help in effectively channelizing the energy of the youth.

Not needed because:

• Conscription is controversial for a range of reasons, including conscientious objection tomilitary engagements on religious or philosophical grounds; political objection, for exampleto service for a disliked government or unpopular war; and ideological objection, for example,to a perceived violation of individual rights. Those conscripted may evade service, sometimesby leaving the country.

• While women, almost always exempt from conscription, are free to pursue work, study andother activities, men’s early career and life prospects can be impeded by conscription.

• Close to 30 crore males and 24 crore females between the ages of 1649 are fit for militaryservice in India. Annually, 1.2 crore males and 1 crore females attain militarily significantage. This is a huge number and even if a section of them have to be trained, it would requireastronomical resources in terms of manpower, infrastructure and equipment.

• Also, with high levels of crime and unemployment and a host of serious internal securitychallenges, teaching a large number of youngsters to handle weapons and battlefield tacticscould have dangerous ramifications.

• Conscription is a useful tool only in thinly populated countries, usually facing an existentialcrisis, like Israel.

Conclusion

• A similar model already exists in schools and colleges in the form of the National CadetCorps (NCC). The largest youth volunteer organization of its kind in the world with astrength of about 15 lakh cadets, its mandate is personality development and inculcatingdiscipline.

• Once India improves its education system and inculcate moral values, people will understandwhat is required of them and the situation will improve. Imparting military training is notthe way to solve the ills of the society.

Associated Concepts

Fundamental duties:

• India inserted the fundamental duties through the enactment of 42nd ConstitutionalAmendment Act in 1976 with the recommendations of Swaran Singh Committee.

• This amendment incorporated a new part – Part IV A to the Constitution that comprises ofonly one Article, namely Article 51 A, which specifies a code of ten fundamental duties ofthe citizens. One more fundamental duty was added in 2002.




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List of Fundamental duties:

• To abide by the Constitution and respect its ideals and institutions, the National Flag and

the National Anthem;

• To cherish and follow the noble ideals which inspired our national struggle for freedom;

• To uphold and protect the sovereignty, unity and integrity of India;

• To defend the country and render national service when called upon to do so;

• To promote harmony and the spirit of common brotherhood amongst all the people of Indiatranscending religious, linguistic and regional or sectional diversities; to renounce practices

derogatory to the dignity of women;

• To value and preserve the rich heritage of our composite culture;

• To protect and improve the natural environment including forests, lakes, rivers and wild life,and to have compassion for living creatures;

• To develop the scientific temper, humanism and the spirit of inquiry and reform;

• To safeguard public property and to abjure violence;

• To strive towards excellence in all spheres of individual and collective activity so that thenation constantly rises to higher levels of endeavor and achievement;

• Who is a parent or guardian to provide opportunities for education to his child or, as the

case may be, ward between the age of six and fourteen years.

Purpose:

• Fundamental Duties are about such values that have been a part of Indian tradition, religions,mythologies and practices. In fact, the duties are integral to the Indian way of life. Hence

it is actually a codification of the Indian way of life.

• Fundamental Duties act as a reminder to the citizens that while enjoying their fundamentalrights, they must not forget the duties they owe to their country and their society.

• These duties function as a warning against the antisocial and antinational activities such

as burning the national flag and so on.

• For most of the citizens these duties are not only a source of inspiration but also promote

discipline and commitment among them.

• The duties instigate a feeling that the citizens are not spectators only but active participantstoo in the process of fulfillment of national goals.

• Fundamental Rights applies to both citizens & foreigners but fundamental duties apply onlyto citizens.

• They are nonjusticiable in nature i.e. they can’t be taken to court of law if they are notfollowed. They lack legal sanction & direct enforcement. But Parliament can enforce it if it

wants via proper legislation.

• These duties are in the nature of a code of conduct. Since they are unjustifiable, there is nolegal sanction behind them.




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Relevance in modern time:

• Appropriate sanctions can be provided for lapse in respect of each Fundamental Duties andit is quite practicable to enforce the sanction against every citizen holding a public office

– For instance, departmental promotions can be deferred, increments can be withheld etc.,

– If an officer takes part in a strike or stalls the proceedings of the institution he can be madeto forgo the salary for that day.

– Likewise, sanctions can be provided for professional bodies such as the Bar Council of India,the Medical Council of India, the Institute of Chartered Accountants & the Institute ofEngineers etc.,

– It is no longer corrected to say that Fundamental Duties enshrined in Article 51A are notenforceable to ensure their implementation and are a mere reminder.

Protection of environmental Duty:

• In view of the duty to protect and improve the natural environment including forests, lakes,rivers and wildlife and to have compassion for living creatures imposed on the citizensunder Article 51A (g) of the Constitution, the Supreme Court has held that it is a duty ofthe Central Government to take a number of steps in order to make this provision effective,and issued the following directions to the Central Government:

– To direct all educational institutions throughout India to give weekly lessons in the first tenclasses, relating to the protection and improvement of the natural environment includingforest, lake, rivers and wild life.

– To get text books written for the said purpose and to distribute them free of cost.

– To introduce short term courses for training of teachers who teach this subject.

– Not only the Central Government but also the State Government and local authorities areto introduce cleanliness weeks when all citizens including member of Executive, the Legislatureand the judiciary should render free personal service to keep their local areas free frompollution of land, water and air.

• Respect to National Flag and the National Anthem: (Prevention of improper use) Act 1950prohibits the use of National Symbols for commercial use in India. If a person cannot havegiven respect to National Flag and the National Anthem, the person should be punishableby the law or enforceable by court.

• If a person does not defend the country that meant involving any other activities to threateningIndia he/she will punishable by the law

• The duty as such is not legally enforceable in the Courts; but if the State makes a law toprohibit any act or conduct in violation of any of the duties, the courts would uphold thatas a reasonable restriction on the relevant fundamental right.

• Though nonjusticiable in nature, it still helps the court in examining the constitutionalvalidity of the law. If the court finds that a law in question seeks to give effect to a fundamentalduty, it may consider such law to be reasonable in relation to Article 14(equality before law)or Article 19 (six freedoms) and thus save such law from unconstitutionality.

• However, the Supreme Court, in Surya vs Union of India (1992) case, ruled that fundamentalduties are not enforceable through judicial remedies by court.




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• The Parliament can not only make the Fundamental Duties enforceable but also supportpenalties in case of their noncompliance (through a law).

12. Recently LG of Puducherry has nominated three members in the State assembly. Elaborateon the procedure and law regarding the nomination of members to the Assembly of aUnion Territory? What is the contentious issue related to it?

Hints:

Procedure and laws regarding nomination of members to the assembly of a union territory:

• Article 239(A), first introduced in the Constitution by the Fourteenth Amendment in 1962,allows Parliament to enact a law for the creation of “a body, whether elected or partlynominated and partly elected, to function as a Legislature” for Puducherry.

• Under the Government of Union Territories Act, 1963, “the Central Government maynominate not more than three persons, not being persons in the service of Government, tobe members of the Legislative Assembly of the Union Territory.”

• In the case of Puducherry, however, nominated members in the Assembly cannot vote in anoconfidence motion nor can they vote on financial matters.

• Since the nominated members cannot vote in a noconfidence motion, they cannot disturbthe existing majority of the ruling party. Similarly, in the election for the President of India,no category of nominated member is eligible to vote.

Issues:

• At the time of the debate in Rajya Sabha on the Constitution Amendment Bill, the purposeof the nomination appeared to be to allow members from a community, not adequatelyrepresented to be part of the legislature. However, in the enacted law, there was no mentionof representation from weaker or inadequately represented sections as a purpose of thenominations.

• Political parties have been arguing that only the Speaker has the power to induct a memberin the House. However, the law for Puducherry, specifies that the central government hasthe power to nominate; the process to be followed is unclear as there is no rule or notification.

• In this case, Lieutenant governor being representative of the central government administeredthe oath in the absence of any government representative leading to the tussle between theoffice of the Lieutenant governor and government of Puducherry

• It is usually the Union Territory government that suggests the names of nominated members,which is forwarded to the Centre through the Lt. Governor. In this case the UT governmentdid not suggest the names.

Way forward:

• There is a need to revisit the whole issue and go back to the core idea behind the nominationif at all will be for the marginalized, not of petty political gains.

• If possible, it can be considered to dismantle the system of having nominal members, as evenin parliament, most of them have been proved to mostly absent and hardly participating inparliamentary debates and raising issues.

Associated Concepts

Position of Lt. Governor

• Like Governor, Lt. Governor acts as the titular head of the UT whereas the real power isexercised by the chief minister (CM) and his council of ministers




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• In the Articles 239 and 239AA of the Constitution of India, the functions, powers and dutiesof the Lt. Governor are defined clearly. He is a representative of the President and acts onthe aid and recommendation of the council of ministers.

• The provisions of Article 239B apply in relation to the National Capital Territory of Delhi,as they apply in relation to the UTs of Andaman and Nicobar Islands and Puducherry.

• Discretionary Powers of Lt. Governor

– The Lt. Governor uses his discretionary powers in certain situations. In the legislative assemblyelections if no party secures a majority, the Lt. Governor has the authority to act on his ownand ask the leader of the single largest party or the chosen leader of two or more parties toform the government.

– In that case, Lt. Governor appoints that leader as the Chief Minister. If due to improperadministration, the state machinery breaks down, the Lt. Governor can send a report to thePresident, recommending imposition of President’s Rule in the state.

– Under President’s Rule, the Lt. Governor becomes fullfledged executive head of thegovernment and has the power to appoint a group of advisors who act as council ofministers. The duration of President’s rule is also subject to discretion of the Lt. Governor.

13. Elaborate the Doctrine of Separation of Powers in context of Indian constitution? Doyou think the SC’s denial to form National Judicial Appointment Commission is againstthis doctrine? Give reasons in support of your answer?

Hints:

Doctrine of separation of powers:

• Doctrine of separation of powers claim that state power is not a single entity, but rather acomposite different governmental function (i.e., legislative, executive and judicial) carriedout by state bodies independently of each other.

• The legislature enacts laws; the executive enforces laws, and the judiciary interprets laws.

• Essentially there is no strict separation of powers under Indian constitution, both in principleand practice. Each organ while performing its activities tends to interfere in the sphere ofworking of another functionary, because a strict demarcation of functions is not possible intheir dealings with the general public. Thus, even when acting in their own power overlappingfunctions tend to appear amongst these organs.

• According to the interpretation of the courts regarding the separation of powers in Indiathere is broad separation of powers where the core function is one which is exclusivelyconferred on that particular organ of the state though there may be some overlap in regardto the fringe areas of the topics so entrusted.

NJAC:

NJAC was constituted by legislature but Supreme court struck that down. But, questions wereraised, whether this is against doctrine of separation of powers.

• The socalled “basic structure of the constitution”, whose primacy has been upheld byseveral SC judgements, because it safeguards the separation of powers and the independenceof the judiciary from the executive, remains intact under the NJAC, as the NJAC’s chairpersonis the CJI, who has an important role to play.

• Furthermore, the NJAC is good for democracy (which is also a basic feature of the Constitution)and requires that no organ of the state, including the judiciary, enjoys absolute freedom.




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• Parliament has been given “legislative supremacy” under the Constitution, which is why itcould pass the 99th Amendment that created the NJAC in the first place.

The counterargument is that Parliament made an unconstitutional amendment by introducingArticle 124(A). In the second judges case a ninejudge bench laid down the primacy of the CJI aspart of the basic structure of the Constitution and the 99th Amendment Act cannot simply violatethis now.

• Article 124(C) empowers the legislature to freely change the powers governing the NJACthrough the ordinary lawmaking process. This obviously violates the theory of the separationof powers. However, this is a limited criticism, because judiciary always have judicial reviewat its disposal.

• So, even if the Supreme Court held that the NJAC is valid, Parliament should not be ableto change the laws related to the Constitution or governance of the NJAC so easily.

The Supreme Court has said in the past that striking out a law is a “grave step” and a “measure oflast resort” and its most common response is not to strike down the unconstitutional law, but tointerpret it in a way that it is consistent with the Constitution

Associated Concepts

The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the99th Constitutional Amendment which sought to give politicians and civil society a final say in theappointment of judges to the highest courts. Here is what you need to know about the row:

What is the NJAC?

National Judicial Appointments Commission (NJAC) was a proposed body which would havebeen responsible for the appointment and transfer of judges to the higher judiciary in India.

What is the Collegium system?

The Collegium system is one where the Chief Justice of India and a forum of four seniormostjudges of the Supreme Court recommend appointments and transfers of judges. However, it has noplace in the Indian Constitution. The system was evolved through Supreme Court judgments in theThree Judges Cases (October 28, 1998)

Why is Collegium system being criticised?

The Central government has criticised it saying it has created an imperium in imperio (empirewithin an empire) within the Supreme Court.

The Supreme Court Bar Association has blamed it for creating a “giveandtake” culture, creatinga rift between the haves and havenots. “While politicians and actors get instant relief from courts,the common man struggles for years for justice.”

How and when was the NJAC established?

The NJAC was established by amending the Constitution [Constitution (NinetyNinth Amendment)Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014,to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and thePresident gave his assent on December 31, 2014. The NJAC Act and the Constitutional AmendmentAct came into force from April 13, 2015.

Who will be in the NJAC?

It will consist of six people — the Chief Justice of India, the two most senior judges of the SupremeCourt, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated




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for a threeyear term by a committee consisting of the Chief Justice, the Prime Minister, and theLeader of the Opposition in the Lok Sabha, and are not eligible for renomination.

If politicians are involved, what about judicial independence?

The judiciary representatives in the NJAC the Chief Justice and two seniormost judges can vetoany name proposed for appointment to a judicial post, if they do not approve of it. Once a proposalis vetoed, it cannot be revived. At the same time, the judges require the support of other members ofthe commission to get a name through.

14. What are your views on the importance of decentralization of the administration ofjustice? Do you think, that the Supreme Court has strayed from its original characteras a Constitutional Court and gradually converted itself into a mere court of appeal?

Hints:

Importance of decentralisation of the administration of justice:

• Décentralisation by providing specialist tribunal would reduce delay, cost and technoformalapproach.

• Achieve the desired goal of reducing the inow of work in the High Courts

• Courts should be where the litigants are in large numbers, where their access is best facilitated.

• Economic democracy in the administration of justice commands a system where courts andtribunals are easy to reach, inexpensive to tap and facilitate finality of verdict. Thesefundamental features compel a democratic system of justice to be successful by means ofdecentralisation.

• If the court has too many tiers and the highest court is too distant from the regions wherethe proletariat live and struggle for its existence, the right to justice which is the quintessenceof democracy loses its spiritual value and trivializes the other fundamental rights.

How, SC is becoming a Court of appeal:

• It often tasks itself with ruling on runofthemill civil and criminal appeals. The court’sdocket, in fact, tends to burst with seemingly mundane disputes like rent control quarrelsbetween landlords and tenants, factual squabbles over tax assessments etc. As a result thecourt’s focus has wavered from questions of pure constitutional significance.

• It was believed the lower judiciary and the various high courts would be sufficiently equippedto dispense justice in these kinds of cases but that failed.

– National Judicial Data Grid (NJDG) data shows that there is only one judge for every 73,000people in India, a figure that is seven times worse than the United States.

• The use of exceptional Special leave petition (SLPs) under A 136 even for mundane matters.

• Entertaining Public Interest Litigation (PILs) on petty matters, which are meant only forpublic cause and not individual reasons

• Judicial Activism: court judgements in jurisdiction of executive and legislature leading todiversion of Supreme Court’s resources

• The number of cases decided by constitution benches comprising five or more judges hassteadily declined right from the Supreme Court’s inception. Between 1950 and 1954, almost15 per cent of the total cases decided by the Supreme Court were decisions of constitutionbenches. By the time the 1970s came around, this figure had dipped below one per cent.




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The Supreme Court is still left with mostly those cases which would fall within the jurisdictionvested in it by the framers of the Constitution and covering essentially the following matters:

• All matters involving substantial questions of law relating to the interpretation of theConstitution of India or matters of national or public importance;

• Settling differences of opinion on important issues of law between High Courts or betweenCourts of Appeal;

• Validity of laws, Central and State;

• After the Kesavananda Bharati case, (1973) 4 SCC 217, the judicial review of ConstitutionalAmendments;

• Resolving conflicts between States and the Centre or between two States, as well as theoriginal jurisdiction to dispose of suits in this regard; and

• Presidential References under Article 143 of the Constitution.

The court acts as the ultimate arbiter on disputes concerning any interpretation of the Constitution.

Associated Concepts

Way Forward

• Cases which do not raise questions of national or public significance should be finallydecided by intermediate courts which are to be created by an amendment to the Constitution.

• Establishment of a National Court of Appeal (NCA) that would act as an intermediateforum between the Supreme Court and the various high courts of India.

• There needs to be greater rigour involved in choosing judges. If socially conscious andmeritorious women and men, who subscribe to the best constitutional values, are elevatedas judges to our subordinate judiciary and the high courts, the idea of viewing the SupremeCourt as a routine court of appeal can be renounced altogether.

• More robust subordinate judiciary is needed then it would not only negate any requirementon the part of most litigants to approach the Supreme Court.

• Alternative Justice Systems like Lokadalats need to be regularly held to lessen burden onlower judiciary.

• Broadly, the Constitution prescribes to the Supreme Court two types of jurisdiction: anoriginal jurisdiction i.e. the power to entertain cases at the first instance where fundamentalrights have been violated, or where a State is involved in a dispute with another State orwith the Centre; and an appellate jurisdiction, where a case involving a substantial questionof law requires adjudication, on appeal.

15. Various parliamentary committees are working as de-facto legislature, particularly in

times of frequent disruptions, walk-outs and closures? Elaborate how it affects

functioning of legislature and suggest if there is any solution to address this problem?

Hints:

The volume and complexity of legislation, the demands on the time of parliamentarians and

Parliament’s preoccupation with the politics of the moment make it difficult to give legislative business

the attention it requires this is leading to raise of role for parliamentary committees




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• The quality time of the Parliament is wasted on trivial political controversies, rowdiness,disorder and theatrics.

• The parliamentary perversion could also be seen not only in the falling standard of theparliamentarians but also in their marriage with crime, money, scams and demagoguery.

• The Houses typically meet for about 70 days a year to conduct their business. Beyond thevisible work in the two Houses, a substantial part of the work is carried out by committees.Parliament has recently reconstituted the departmentally related standing committees (DRSCs).

How this affects legislature?

• Participation in crucial Parliamentary discussion has decreased at an alarming rate. In 2009,participation in Lok Sabha for passing of bills was very poor.

• Decline in terms of the quality of debates in the House. This is because the intellectualquotient and political potential of contemporary parliamentarians are also decliningsignificantly.

• Important matters are relegated to the committees, while matters of public importance havebeen ignored and not discussed while matters requiring least attention are discussed for longdurations

• Irrespective of the complicity of some MPs in illegal practices outside Parliament, their

general conduct and demeanour inside Parliament is increasingly distorting legislativeproceedings and inspiring less public confidence.

• The average time taken by adjournments and adjournment motions is roughly 10 per centof the proceedings of a typical parliamentary session. So legislative proceedings are frequentlydisrupted to the point where there is no option but to adjourn.

Solutions:

• Example from UK model:

– Due to the falling standards of the parliamentarians in public life U.K. Government constitutedNolan Committee on Public Standards in 1994. Members shall at all times conduct themselves

in a manner which will tend to maintain and strengthen the public’s trust and confidencein the integrity of Parliament and never undertake any action which would bring the Houseof Commons, or its Members generally into disrepute.

• There is a need of high interface of parliamentarians with people not only of their constituenciesbut also in general on different issues of policy and legislative importance.

• Codification of Parliamentary Ethics and Privileges are the need of hour to ensure check ontheir violations.

• Electoral reforms on the eligibility criteria for becoming a MP should be made stricter likeincluding conditions such as minimum educational qualification, no criminal record etc.

• Political parties shall be within the purview of Right to Information Act to increase

transparency so far as the case of fund raising, agenda setting, distribution of tickets, partyelections and their nexus with corporate world is concerned.

• Right to recall those parliamentarians who are not performing well shall be with people.Compulsory Referendum is to be introduced on legislative matters of high national importance.




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• The annual report card of each parliamentarian is to be prepared on their attendance duringparliamentary sessions, participation in debates and discussion, number of questions he hasraised etc and then distributed amongst the people of their constituencies.

• There is also a need of institutional machinery to annually audit the growth in their incomeand wealth and performance in their respective constituencies.

• Post Legislative scrutiny is needed.

16. ‘The MPLAD scheme has been criticized a lot, for lack of spending and ineffectivespending, however, in recent years it been linked with certain measurable outcomeslike, Contribution to Swachh Bharat mission and village adoption policy under SansadAdarsh gram Yojana. Analyze impact of such measures and discuss what should bedone to make such spending more effective?

Hints:

The MPLADS scheme was initiated to enable and empower MPs to develop their constituenciesbased on perceived local needs. Every year, MPs are allotted Rs. 5 crores under the MPLAD primarilyto take up development projects in their respective constituencies. The scheme has been criticized alot for less amount allocated, underutilization and ineffective spending.

As per the data provided by MoSPI, only 5.4% of the total fund has been utilized for the FinancialYear 201415. The data shows that not a single rupee was spent in 278 constituencies (51 per cent)in 201415. Of these, 223 MPs did not recommend any amount. Considering that MPs have arecommendatory role in the scheme, it is surprising to see that 41 per cent of them haven’t evenrecommended any amount for their constituency.

• One reason for this might be development projects cost much more than allotted fund forentire constituency.

However, linking it with certain measurable outcomes like, Contribution to Swachh Bharat missionand village adoption policy under Sansad Adarsh gram Yojana has potential to change the situation.

• Impact of such linkage include increased utilization of funds, utilization of MPLAD fund forSwachh Bharat mission will bridge gap of funding. Maintenance work and continued useof community toilet can be ensured through this fund. Effective use would result in betterheath parameters and improved socioeconomic indicators.

• Sansad Adarsh gram Yojana do not has separate funding so MPLAD can provide muchneeded resources. Villages which are usually neglected in development work will be incentral. It would reduce intra constituency inequalities.

• There have been suggestions to scrape the MPLAD scheme because of its inefficiency andineffectiveness. However, it should not be scrapped as this provides feasible means forground level development. Instead, factors that result in its inefficient utilization and thosewhich can improve its effectiveness should be identified and addressed.

• A primary reason for underutilization is that MPs have no real knowledge of actual needsof their constituents or of the development landscape of the constituency. This can beaddressed by structured research to support constituency development and planning. Thiswill not only enable the MPs to understand the ground level reality of his/her constituencybut also aid in better and planned utilization of funds that can also ensure maintenance ofassets created.

• The “Kottayam experience” shows that participatory planning has mixed well with theMPLADS. PRIs, as an implementing agency, have acquired skills of implementation,considerably improving their role.




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• There needs to be a greater focus on regular monitoring by the District Authorities. Thepractice of random inspections by the District Authority, both before the release of thesecond instalment and after the completion of the work, is a good practice followed inVaranasi. Implementing agencies could involve the local community in the voluntarysupervision of works.

• Since maintenance of public assets is where the system breaks down, arrangements can bemade for the maintenance of assets or maintenance can be outsourced.

• In order to better assess the needs of the constituents, surveys can be conducted across theconstituency. For this purpose, NGOs and local community can be involved. Once the needsof the constituency are determined, implementation can be linked to what’s needed.

• For the scheme to be more effective, an impact assessment study should be undertaken at

the constituency level, on a yearly basis, to assess the benefits of the works implemented tothe community at large.

• To tackle the issue of large unspent balances which have accumulated and are rising over

the years, fund can be made lapsable. This way funds lying unused can be put to other usesBuilding accountable and transparent mechanism for its implementation.

• Funding under MPLAD should be increased to take some viable development projects.

New MPs are using grievance redressal mechanisms for prioritizing their constituency developmentagenda. However, this approach is merely targeted towards problemsolving with no development

impact. Therefore, a planned approach towards development based on detailed primary survey,data analysis and empirical research that also takes into account central and state welfare schemes

would yield better results. It is time to locate MPLADS in the broader context of districtlevel planneddevelopment, which requires a more systematic approach.

Associated Concepts

How does the MPLADS work?

There are three major stakeholders in the entire process: the MP, district authority and theGovernment of India. MPs recommend works to be undertaken under the MPLADS, based onlocally felt needs; with preference to certain sectors, including drinking water facility, education,health, sanitation, irrigation, roads etc. Following the recommendation, the district authority is

responsible for sanctioning the eligible works, and implementation of the sanctioned ones. As perofficial guidelines, the district authority shall make the selection of an implementing agency forexecution of the recommended works by an MP. The Government of India releases the annualentitlement of Rs. 5 crore in two equal instalments of Rs 2.5 crore each, directly to the districtauthority.

Among states, MPs of Kerala have the best numbers on the recommendation front, with projectsworth Rs. 7.3 crore recommended on average. (The amount might exceed Rs. 5 crores as FinancialYear 201516 has begun.) However, the actual amount spent in these Kerala MPs’ constituencies isjust Rs. 47 lakh, which is below the national average.

Overall, Tamil Nadu and West Bengal are the best performing States. Both have averagerecommendations worth Rs. 3.5 crore, and are the only two big States having spent more than Rs.1 crore per constituency on projects. On the other hand, Jharkhand, Uttarakhand, Jammu &

Kashmir, Rajasthan and Assam, on average, don’t even cross the Rs. 1 croremark for projectrecommendations, let aside the execution.




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17. The post of Parliamentary Secretary has been debated over issue of Office of Profit.While explaining the term, parliamentary secretaries and office of profit, discuss theissue involved. Also discuss the 2nd ARC recommendations to determine whichappointments constitute for office of profit.

Hints:

Many states in the Indian Union have instituted the post of Parliamentary Secretary. A ParliamentSecretary often holds the rank of Minister of State and has the same entitlements and is assigned toa government department. Manipur, HP, Mizoram, Assam, Rajasthan, Punjab, Goa are some ofthe states where MLAs have been appointed Parliament Secretaries by the Government. However,various petitions in the High Court have challenged the appointment of Parliament Secretary onissue of office of profit.

Office of profit: The idea behind the concept of office of profit – which evolved in England – is topreserve the independence of the legislature by keeping the members away from any temptationsfrom the executive that can come in the way of independent discharge of their duties. It also seeksto enforce the principle of separation of power between the legislative, the judiciary and the executive– a basic feature of the Constitution

Issue involved:

• It raises two issues. First, the Constitution specifies conditions which disqualify MPs, MLAsfrom membership of their respective institutions. The first is holding an “Office of Profit”under the state or central government Under Article 102(1)(a) and Article 191(1)(a) of theConstitution. The essence of this disqualification is that there should be no conflict betweenthe duties and interests of an elected member. MPs and MLAs hold the governmentaccountable for its work, and if they held an “Office of Profit” under the government, theymight be susceptible to government influence and might not discharge their constitutionalmandate fully.

• Second, the Constitution caps the number of members in the union and state cabinet. Article164(1A) specifies that the number of ministers including the Chief Minister has to be within15% of the total number of members of the Assembly. (10% in the case of Delhi, which isnot a ‘full’ state) Over the last few years, courts across the country have struck down theappointment of Parliamentary Secretaries for violating the Constitution.

2nd ARC recommendations in this regard: The Law should be amended to define office of profitbased on the following principles:

• All offices in purely advisory bodies where the experience, insights and expertise of a legislatorwould be inputs in governmental policy shall not be treated as offices of profit.

• All offices involving executive decision making and control of public funds, directly decidingpolicy or authorizing or approving expenditure shall be treated as offices of profit.

• If a serving Minister is a member or head of certain organizations, where close coordinationbetween the Council of Ministers and the organization is vital for the functioning ofgovernment, it shall not be treated as office of profit.

While in theory, the legislature holds the government to account, in reality it is often noticed thatthe government controls the legislature as long it has a majority in the House. Thus, posts likeChairmanships of Corporations, Parliamentary Secretary of various ministries, and other offices ofprofit are used as to appease and leverage legislators as way of buying peace for the government.

Therefore, it is imperative that their independence is protected. Actions that impinge on suchindependence, such as excessive appointments to executive positions should be reversed.




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18. Since the institution of the first Finance Commission, stark changes in the macroeconomicsituation of the Indian economy have led to major changes in the Finance Commission’s‘Term of Reference’ over the years. In this context, discuss the major changes brought-in by the finance commission to incorporate these considerations? Highlight the majordefects in working of Indian fiscal federalism?

Hints:

The Finance Commission was established by the President of India in 1951 under Article 280 of theIndian Constitution. It was formed to define the financial relations between the central governmentof India and the individual state governments. Over the years, stark changes in the macroeconomicsituation of the Indian economy have led to major changes in the Finance Commission’srecommendations. Recommendations of Finance Commission ushered major changes in fiscalfederalism in India.

• The scale of distribution of tax proceeds has changed dramatically since the 1950s. States’share has increased from 10% of the total tax receipts of the Centre in 1950, it has now risento a record 42% after the recommendations of the Fourteenth Finance Commission, a sharethat makes previous awards look conservative, and sits well with the spirit of cooperativefederalism

• The equation between the central and state governments has changed as a result of therecommendations of the Twelfth Finance Commission, which reshaped lending by theinternational agencies to states. Since then, the debt obligation of states to the Centre hascome down significantly, giving rise to questions over whether states that have repaid allborrowings from the Centre need to take Delhi’s approval at all for their future borrowings.

• For horizontal distribution among state, many parameters have been adopted and dropped,for example the recently dropped fiscal discipline criterion.

• Grants given to Panchayats, Municipalities by way of Basic grant, Incentive grant hassignificantly increased. This will alter the way Local bodies perform. They are at the mercyof States to implement schemes. So, this measure will give them major thrust to implementschemes in area specific approach.

• The Fourteenth Commission recommended the creation of a Fiscal Council; the Thirteenthhad set out detailed measures on implementing GST with a grand bargain for states.

Despite efforts of finance commission to reduce inequalities, Indian fiscal federalism is sufferingfrom both horizontal and vertical imbalances. The major defects in working of Indian fiscal federalism:

• Division of functions and resource asymmetry, mounting Vertical Imbalance: there is mismatchbetween the functions allocated to the centre and to the states, powers of taxation and thatthe more buoyant tax areas have been assigned to the centre. The Vertical imbalance emergesbecause of disproportionate alignment of revenue sources in relation to increasing expenditureobligations by level of government.

• Horizontal Imbalance: Various regions and states in India differ in resources endowment,level of development and per capital income. Therefore, horizontal imbalance occurs betweendifferent units of government at the same level of government in Indian federation. Theresources transfer affected through Finance Commission has miserably failed in correctingthe horizontal imbalance. As a result, disparities in percapita income are increasing.

• Very often the discretionary grants provided by the centre to the states are influenced bypolitical considerations rather than resource requirement. As a result states are not able tobridge their resource expenditure gap in fiscal operations effectively.




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• Continued dependence on centre: Our federal financial system has developed a situation inwhich the states cannot survive without the central assistance. The use of loans and grantsby the state has resulted in financial dependency and indiscipline on the part of the states.This also led to a situation of inevitable debt burden on the part of states.

• Constitutionally local bodies (Panchayat Raj Institutions and Municipal Bodies set up recentlyunder and the 73rd and 74th amendment of the constitutions) are not autonomous. Theyderive their powers and resources from state governments.

There is need to correct these imbalances by some measures like all current transfers should beaffected through a permanent Finance Commission, devolving more share to states withoutpreconditions, devolution of fiscal power to local bodies, focus on building financial capabilities ofbackward states through incentives and special grants. The central pillars of federal finance areefficiency, uniformity, economy, autonomy, sufficiency. Thus, these principles need to be takencare of.

Associated Concepts

Special Category Status:

The Constitution does not include any provision for categorization of any State in India as a SpecialCategory Status (SCS) State. But, recognizing that some regions in the country were historicallydisadvantaged in contrast to others, Central plan assistance to SCS States has been granted in thepast by the erstwhile Planning Commission body, National Development Council (NDC). The NDCgranted this status based on a number of features of the States which included: hilly and difficultterrain, low population density or the presence of sizeable tribal population, strategic location alonginternational borders, economic and infrastructural backwardness and nonviable nature of Statefinances.

However, 14th Finance Commission has removed the concept of SCS.

What kind of assistance do SCS States use to receive?

The SCS States used to receive block grants based on the GadgilMukherjee formula, which effectivelyallowed for nearly 30 per cent of the Total Central Assistance to be transferred to SCS States as lateas 200910.

Following the constitution of the NITI Aayog (after the dissolution of the Planning Commission)and the recommendations of the Fourteenth Finance Commission (FFC), Central plan assistance toSCS States has been subsumed in an increased devolution of the divisible pool to all States (from32% in the 13th FC recommendations to 42%) and do not any longer appear in plan expenditure.The FFC also recommended variables such as “forest cover” to be included in devolution, with aweightage of 7.5 in the criteria and which could benefit northeastern States that were previouslygiven SCS assistance. Besides, assistance to Centrally Sponsored Schemes for SCS States was givenwith 90% Central share and 10% State share.

19. How tribunals as quasi-judicial body are different from regular courts in India? Alsodiscuss the recommendations of Law Commission to improve the working of tribunals,which are facing the crisis of transparent appointment and functioning?

Hints:

‘Tribunal’ is an administrative body established for the purpose of discharging quasijudicial duties.An Administrative Tribunal is neither a Court nor an executive body. It stands somewhere midwaybetween a Court and an administrative body.

Difference between Tribunals and regular courts:




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• Tribunals take a functional rather than a theoretical and legalistic approach. The traditionaljudiciary is conservative, rigid and technical. It is not possible for the courts of law to decidethe cases without formality and technicality. On the other hand, administrative tribunals arenot bound by the rules of evidence and procedure and they can take a practical view of thematter to decide the complex problems.

• Tribunals can take preventive measures, for example, licensing, rate fixing, etc. Unlike regularcourts of law, they have not to wait for parties to come before them with disputes. In manycases, these preventive actions may prove to be more effective and useful than punishing aperson after he has committed a breach of any legal provision.

• Tribunals can take effective steps for enforcement of the aforesaid preventive measures, e.g.suspension, revocation or cancellation of licenses, destruction of contaminated articles, etc.which are not generally available through the ordinary courts of law.

• In ordinary courts of law, the decisions are given after hearing the parties and on the basisof evidence on record. This procedure is not appropriate in deciding matters by theadministrative authorities where wide discretion is conferred on them and the decisions maybe given on the basis of the departmental policy and other relevant factors.

• Sometimes, the disputed questions are technical in nature and the traditional judiciarycannot be expected to appreciate and decide them. On the other hand, administrativeauthorities are usually manned by experts who can deal with and solve these problems, e.g.problems relating to atomic energy, gas, electricity, etc.

However, Tribunals in India are suffering from issues of confusion and overlapping of functions,over tribunalisation, lack of manpower and resources, political influence, opaqueness inappointments etc. To improve the working of the tribunals, Law Commission has made followingrecommendations.

• There shall be uniformity in the appointment, tenure and service conditions for the Chairman,ViceChairman and Members appointed in the Tribunals. While making the appointmentsto the Tribunal, independence shall be maintained.

• There shall be constituted a Selection Board/Committee for the appointment of Chairman,ViceChairman and Judicial Members of the Tribunal.

• For the selection of Administrative Member, Accountant Member, Technical Member, ExpertMember or Revenue Member, there shall be a Selection Committee headed by the nomineeof the Central Government, to be appointed in consultation with the Chief Justice of India.

• The Chairman of the Tribunals should generally be the former judge of the Supreme Courtor the former Chief Justice of a High Court and Judicial Members should be the formerjudges of the High Court or persons qualified to be appointed as a Judge of the High Court.

• The terms and conditions of service, other allowances and benefits of Presiding Officer/Member of a Tribunal (to which the jurisdiction and functions exercised or performed by theDistrict Judges are transferred) shall be such as are admissible to a Central Governmentofficer drawing the corresponding pay of a District Judge.

• Vacancy arising in the Tribunal should be filled up as early as possible by initiating theprocedure well in time, preferably within six months prior to the occurrence of vacancy.

The Tribunals must have benches in different parts of the country so that people of every geographicalarea may have easy Access to Justice. Ideally, the benches of the Tribunals should be located at allplaces where the High Court’s situate. In the event of exclusion of jurisdiction of all courts, it isessential to provide for an equally effective alternative mechanism even at grass root level. This




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could be ensured by providing State level sittings looking to the quantum of work of a particularTribunal. Once that is done, the access to justice will stand ensured.

Associated Concepts

Some of the important tribunals are:

– Central Administrative Tribunal (CAT),

– Industrial Tribunals set up under Industrial Disputes Act, 1947

– Customs, Excise and Gold (Control) Appellate Tribunal

– Armed Forces Tribunal (AFT),

– Telecom Disputes Settlement Appellate Tribunal (TDSAT),

– Railway Rates Tribunals set up under Indian Railways Act, 1890

– Competition Appellate Tribunal (COMPAT).

– Debt Recovery Tribunal (DRT)

– Income Tar Appellate Tribunal set up under Income Tax Act, 1961

– Court of Survey set up wider Merchant Shipping Act. 1958

– VAT Tribunal

– Revenue Tribunal

The kind of cases are administered by the tribunals are limited to their explicit domains. For example,the Income Tax Appellate Tribunal can hear only matters related to Income Tax disputes and notmatters of Customs or Excise department. Therefore, the area of operation of these tri burials aremarked out at the beginning itself by the statute under which its constituted.

Central Administrative Tribunal

Parliament has passed the Administrative Tribunals Act, 1985 which authorizes the centralgovernment to establish administrative tribunals for central services and on the application of thestates even for the state services.

Composition of tribunals: A tribunal shall consist of a chairman and such number of vicechairmanand another member as may be provided for. The President appoints them in case of central tribunalsand the Governor in case of the state tribunals.

Each tribunal shall consist of a chairman and such number of Vice Charmin and judicial andadministrative members as the appropriate Government may deem fit. The additional benchesmust consist of one judicial member and one administrative member.

The chairman may transfer the vicechairman or other member from one Bench to another Bench.Every bench shall include at least one judicial member and one administrative member. The Chairmanmay constitute a single member bench for certain classes of cases. The chairman if required by thenature of case may require that the matter be heard by a Bench of two members, the benches of thecentral Tribunal shall ordinarily sit at New Delhi (which shall be known as the principle bench).Allahabad, Calcutta, Madras, Bombay and such other places as the central government may bynotification, specify.

Qualification, Term and removal of members: A person shall not be appointed as Chairmanunless he (a) is or has been a Judge of a High Court or (b) has for two years held the office of ViceChairman or has for two years held the post of a secretary to the government of India or holdingother post carrying the scale of pay of secretary.




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No person can be appointed as the ViceChairman unless he (a) is or has been a judge of high court(b) has for 2 years held the post of secretary to the Government or holding other post carrying thesame scale under the central or state governments; (c) has for 5 years held the post of an additionalsecretary to the government of India or other post carrying the scales of pay of additional secretary.A person to be appointed as a judicial member must (a) be or have been a judge of the high court,or (b) have been a member of Indian legal service and has held a post in Grade I of the Service for atleast 3 years.

A person to be appointed as an administrative member must (a) have held the post of an additionalsecretary to the Government of India or their equivalent post for at least 2 years or (b) have held thepost of a joint Secretary to the government of India or other equivalent post, (c) have adequateadministrative experience.

The Chairman, Vice Chairman and other members shall be appointed by the President. The judicialmembers shall be appointed by the President with the consultation of the Chief Justice of India. TheChairman, ViceChairman and other members of the Tribunal for a state shall be appointed by thePresident after consultation with the Governor of the concerned state.

The Chairman, ViceChairman or other members shall hold office for a term of 5 years or until heattains (a) in the case of the chairman or ViceChairman the age of 65 years and (b) in the case ofother members the age of 62 years.

The Chairman, ViceChairman or member may resign from his post by writing to the President.They shall be removed from their office only by an order made by the President on the ground ofproved misbehavior or incapacity after an enquiry made by a judge of the Supreme Court. Theyshall have the right to be informed of the charges against them and shall be given a reasonableopportunity of hearing. The central government may be rules regulate the procedure for theinvestigation of the charges against them.

20. Though Judiciary has accused the government to undermine its power under NationalJudicial Appointment Commission, but even the existing collegium system is highlyopaque and undemocratic; Examine, the need for reforms in this context. Also discusswhat Memorandum of Procedure should include to break logjam between executive andjudiciary.

Hints:

The Supreme Court collegium is a body comprising the country’s five senior most judges, includingthe Chief Justice of India, which selects judges for appointments to high courts and the SupremeCourt. The Supreme Court nullified the 99th Constitutional (Amendment) Act stating that itundermines the judicial primacy and separation of power. However, collegium system prevailing issuffering from several defects.

Criticism on the Collegium System:

• The collegium system was regarded as undemocratic in the sense that the main decisionmakers in cases of appointments and transfers were the judges, i.e. the Chief Justice and twosenior most judges who are not accountable to the masses and hence can’t be regarded asproper and responsible decision makers. Thus, the power cannot be concentrated in theirhands.

• It failed to keep pace with the stalled vacancies due to various reasons of caste and otherpolitical and communal reasons.

• The word ‘collegium’ was not used by the constitution originally and the S.P Gupta casebrought about its usage by using it. This, it doesn’t have a necessary sanction.




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• Nepotism and personal patronage is prevalent in the functioning of the collegiums system.By giving judiciary a dominant role, there exists no system of checks and balances which isessential to a democracy.

Even after facing all the criticisms, the collegium system is the best when it comes to upholdingindependence of judiciary. It might seem opaque but it is the best way to ensure that judiciary iskept out of politics and is kept away from outside interference. The collegium system has providedseparation of judiciary from executive. It has solved the problem of excessive executive intervention.

To reduce the logjam a ‘Memorandum of Procedure’ could include the following:

• Establishment of an independent secretariat to help the Collegium. Secretariat would bolsterefforts towards an openended selection process by creating a database of suitable judicialcandidates and widen the pool of judicial talent, which would surely ensure end the criticismagainst the Collegium.

• Government and the judiciary should equally share the burden of evaluation of complaintsreceived against shortlisted judicial candidates.

• The government should communicate to the collegium the reasons for rejecting any namerecommended by it.

• Meritcumseniority as the criterion for elevation of judges should be established based ondefinite guidelines.

• The government should lift the proposed cap on the number of jurists and lawyers forappointment as judges in the Supreme Court.

• The most efficient option to do away with all the problems of the collegiums system couldbe a fulltime consulting body, independent of both government and judiciary, constitutedto select judges. The body could work in a transparent way by publically laying down ascientific mechanism of selection and duly advertising vacancies and evaluating candidateson the criteria laid down.

Recently the Supreme Court’s collegium published a resolution promising to hereafter make public,on the court’s website, its various decisions, including its verdicts on persons nominated for elevationas judges to the high courts, its choices of candidates for elevation to the Supreme Court, and itsdecisions on transfer of judges between different high courts. It is a small, but important firststeptowards making judicial appointments more transparent. The introduction of transparency shouldbe backed by a continuous process of addressing perceived shortcomings. The present disclosurenorm is a commendable beginning.




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