Professional Documents
Culture Documents
Polity-I
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Notes
Contents
Ordinance Making Power in India
Frequent Disruptions of Parliament and its Impact
Importance of Post of Governor
Provisions Related to Removal of Governor
Scrapping of GoMs and EGoMs
Credibility Crisis of Central Bureau of Investigation (CBI)
Gram Nyalayas
Analysis of Lok Adalat
NALSA: Structure & Analysis
Provision of NOTA in Elections
Reforms needed in Criminal Justice System
Issues related to AFSPA
NRI Allowed to Vote via e-postal Ballots
Public Engagement with the Legislative Process
Issue of Paid News
Analysis of working of Inter-State Council
Uniform Civil Code
Controversy over Provision related to RTI on Political Parties
Issues in the working of the Political Parties
Reservation for Women in Legislature
Real Estate (Regulation And Development) Bill, 2013
The Whistleblowers Protection Act, 2014
New Land Acquisition Bill
Supreme Court strikes down Section 66A of Information Technology Act
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Notes
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Notes
In India, the central and state legislatures are responsible for law making, the
central and state governments are responsible for the implementation of laws
and the judiciary (Supreme Court, High Courts and lower courts) interprets
these laws.
However, there are several overlaps in the functions and powers of the three
institutions. For example, the President has certain legislative and judicial
functions and the legislature can delegate some of its functions to the executive
in the form of subordinate legislation. Ordinance making power of the executive
is an example of such overlap.
Ordinance Making Powers of the President
Article 123 of the Constitution grants the President certain law making powers
to promulgate Ordinances. This technique of issuing an ordinance has been
devised with a view to enable the executive to meet any unforeseen or urgent
situation arising in the country when Parliament is not in session, and which
it cannot deal with under the ordinary law.
An ordinance is only a temporary law. It may be related to any subject that the
Parliament has the power to legislate on. Conversely, it has the same limitations
as the Parliament to legislate, given the distribution of powers between the
Union, State and Concurrent Lists. Thus, the following limitations exist with
regard to the Ordinance making power of the executive:
i. The President can only promulgate an Ordinance when either of the two
Houses of Parliament is not in session.
ii. The President cannot promulgate an Ordinance unless he is satisfied that
there are circumstances that require taking immediate action.
iii. Ordinances must be approved by Parliament within six weeks of
reassembling or they shall cease to operate. They will also cease to operate
in case resolutions disapproving the Ordinance are passed by both the
Houses.
Ordinance Making Powers of the Governor
Just as the President of India is constitutionally mandated to issue Ordinances
under Article 123, the Governor of a state can issue Ordinances under Article
213, when the state legislative assembly (or either of the two Houses in states
with bicameral legislatures) is not in session. The powers of the President and
the Governor are broadly comparable with respect to Ordinance making.
However, the Governor cannot issue an Ordinance without instructions from
the President in three cases where the assent of the President would have been
required to pass a similar Bill.
Why Rate of Ordinances Increasing in India?
The reason for rise in the promulgation of ordinances in India is the frequent
disruption of Parliament that bars the enactment of legislation. Parliament
exists for enacting laws. These members of Parliament debate the
appropriateness of legislation to accomplish societal goals. Sets of procedures
have been adopted to assure fair and thorough discussion by all. Adjournments
caused by disruptions and pandemonium, holding of dharnas by members
rushing to the well of the House and unwillingness to participate in discussions
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are some of the concerns impacting the functioning of the Parliament. When
Parliament is disrupted regularly, their capacities to make laws get affected.
Thus, the government has grabbed the lawmakers role. It enacts executivemade, presidential law called ordinance to address even routine affairs like
appointing a particular individual in a specific position in the Prime Ministers
Office. The promulgation of ordinance, which has never been voted upon
publicly, must occur only during extraordinary exigencies and compelling
circumstances has become a mere piece of textbook knowledge with no
practical relevance and ignored by all concerned, making Parliament and Indian
democracy a mockery.
Disruptions in Parliament, in no way, justify the option of using ordinanceroute to enact laws. Disruptions must end.
Misuse of Ordinance
Once an ordinance is framed, it is to be laid before Parliament within six
weeks of its first sitting. Parliament is empowered to either choose to pass the
ordinance as law or let it lapse. Once the ordinance is laid in Parliament, the
government introduces a bill addressing the same issue. This is typically
accompanied by a memorandum tabled by the government, explaining the
emergent circumstances that required the issue of an ordinance. Thereafter, the
bill follows the regular law-making process. If Parliament does not approve the
ordinance, it ceases to exist. The drafters of the Constitution created this
check on the law-making power of the executive to reinforce the notion that
law-making will remain the prerogative of the legislature.
Since the beginning of the first Lok Sabha in 1952, 637 Ordinances have been
promulgated.
Over the 15th Lok Sabha (2009-2013), there have been 16 ordinances, indicating
a decline in the number of ordinances being issued every year. The new
government has already issued eight ordinances in 225 days since assuming
office an average one every 28 day.
But not all of the ordinances are reform-oriented. Some, such as the one that
regularises 895 unauthorised Delhi colonies, and another that allows e-rickshaws
to ply their trade in the city-state have been pushed post-haste with an eye on
the Delhi elections. The another ordinance that gives life-long visas to people
of Indian Origin (PIOs) was pushed through ostensibly because the Prime
Minister wanted to keep a promise hed made when he addressed the Indian
diaspora in the US last year.
This cleary show that the ordinance-making power was not used for the purpose
it was meant for, but to deal with failures in negotiating the legislative process.
Reformulating an ordinance is another unhealthy trend.In 1967-81 Bihar
Governor promulgated 256 ordinances while assembly passed only 189 Acts.
Of them, many were re-promulgated several times. Sugarcane ordinance was
promulgated and re-promulgated for 13 years. There were also instances where
50 ordinances were promulgated in a day. The Supreme Court in famously
known as Ordinance Raj Case emphasized that the power to promulgate an
ordinance is essentially a power to be used to meet an extraordinary situation
and it cannot be allowed to be perverted to serve political ends.
It is the function of the Legislature which is a representative body to make
law; the Executive cannot continue the provisions of an ordinance in force
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be designed and for this some sets of procedures have been adopted to assure
fair and thorough discussion by all.
Further in parliamentary form of government, MPs are required to keep the
government in check and oversee its functioning. One of the ways in which
they do so is by asking ministers questions about the work done by their
ministries. Ministers respond to such questions during the first hour of
Parliament, which is known as question hour. Based on the response, MPs can
cross-question and corner the minister by asking supplementary questions. On
certain occasions, they are also able to extract assurances from the minister to
take action on certain issues. When question hour is disrupted, not only are
these opportunities lost, it also leads to ineffective scrutiny of the work done
by the various ministries of the government. As per available data in 2012, out
of the 146 hours allocated for question hour in both Houses of Parliament,
roughly only 57 hours were utilized.
Adjournments caused by disruptions and pandemonium, holding of dharnas
by members rushing to the well of the House and unwillingness to participate
in discussions are some of the concerns impacting the functioning of the
Parliament.
When Parliament is disrupted regularly, its capacity to make laws is also affected.
Disruptions in Parliament also eat into the time available for discussing a bill
in the house. In previous Lok Sabha, roughly 35 per cent of bills were passed
with an hour or less of debate, a case being the sexual harassment bill, which
was passed by Lok Sabha in just 16 minutes. Some would argue that since
parliamentary committees scrutinize most bills in detail, there is no harm done
if the bills are not debated in the House. However scrutiny of a bill behind
closed doors is hardly a substitute for spirited debates on the merits and demerits
of a bill on the floor of the House.
Forms of Parliamentary Disruption
Parliamentary disruption may be divided into two categories. The first entails
actions which, primarily, affect the working of parliament directly. They range
from acts which completely stop parliamentary action, e.g., those which lead
to adjournments, to acts which merely interfere with the conduct of business
without leading to the adjournment of parliament, e.g., a moderate level of
shouting or interrupting speakers. Clearly, the latter may or may not escalate
to produce the former. Whether it does or does not depends in part on the
actions and judgment of the Speaker, the leaders of the political parties in
parliament, as well as the members themselves.
The second entails actions which primarily affect the working of the parliament
indirectly. They involve actions such as the members absence or departure
from parliament. Of course, the departure of members from the parliamentary
chamber may have an immediate and direct impact on the functioning of that
legislative body. What is common to all forms of disruptive behavior is the
fact that they interfere, in some manner, with the way parliament is supposed
to function as defined by its rules and procedures.
Economic loss due to disruption of Parliament
There have been some estimates of loss caused by Parliament being disrupted,
based on the annual budget of Parliament. This is an incorrect way of judging
the cost. The actual cost is the economic loss caused by the delay in passing
important bills and by the insufficient oversight of government functioning. It
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is difficult to quantify the loss ensuing from the delay in passing various pieces
of legislation. However, it is obvious that not implementing many of the
above bills would have significant costs for various stakeholders students and
farmers, for instance. If the delay results in slower economic growth, it would
also have implications for tax collection. Here is a sampler: a 1 per cent
slowdown in GDP growth amounts to a loss of about Rs 90,000 crore to the
economy and about Rs 15,000 crore in tax collections. It is important that
Parliament focuses on discussing key bills and passing them with the appropriate
amendments, rather than stalling them indefinitely.
Notes
The washout of the recent Monsoon Session has led to Rs 260 crore loss of
taxpayer money Rs 162 crore in Lok Sabha and Rs 98 crore in Rajya
Sabha.
Parliament did not function for 91% of its scheduled time in the first week.
There were 11 pending bills, 9 new bills to be introduced and one to be taken
up for consideration and passing. These are in Lok Sabha: Land Acquisition
Bill and SC and ST (prevention of atrocities) Amendment Bill 2014; in Rajya
Sabha: Whistleblowers Protection (amendment) Bill 2015; Mental health care
Bill, 2013; Prevention of Corruption (Amendment) Bill 2013; Child Labour
Amendment Bill 2012; Real Estate (regulation & development) Bill 2013;
Juvenile Justice Amendment Bill 2015 and Constitution (122nd) Amendment
Bill 2014.
A variety of specific problems that adversely affect democracy are said to
arise out of the disruptions.
b)
Guarantee some time for the opposition. The British Parliament allocates
20 days a year when the agenda is decided by the opposition. It also
requires Parliament to meet more frequently.
c)
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e)
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keep India united, but the Governors and Central governments misused the
institution of the Governor to fulfill their political interests.
Notes
The Vice-President of India and the Speaker of the Lok Sabha should also
be consulted while making this appointment though this consultation
should be confidential, informal and not a matter of constitutional
obligations.
Article 163 provides the Governor with wide-ranging powers. Since the Governor
decides everything, sometime he plays a dictatorial role to fulfil partisan
interests. As a result, some of the States demanded the deletion of the
discretionary powers of the Governor but the Commission rejected it. Instead,
it suggested that Article 163 should be left untouched. Hence, it proposed the
continuance of this power but it also said that it should be used only as a last
resort.
It made clear that the Governor can still misuse the discretionary powers for
partisan interests.
It points out Article 356 should be used very sparingly, in extreme cases, as
a measure of last resort, when all available alternatives fail to prevent or rectify
the breakdown of the constitutional machinery.
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In conclusion, we can say that Sarkaria Commission has taken many initiatives
to stabilise Center-State relations regarding the role of the Governor.
Punchhi Committee Report on Governor
The Government of India set up a commission on Centre-state relations in
2007 to look into the new issues of Centre-state relations keeping in view the
changes that have been taken place in the polity and economy of India since
the Sarkaria Commission had last looked at the issue of Centre-state relations
over two decades ago. The recommendations are as follws:
A. On Appointment and Removal of Governors
Given the status and importance conferred by the Constitution on the office
of the Governor and taking into account his key role in maintaining
Constitutional governance in the State, it is important that the Constitution
lays down explicitly the qualifications or eligibility for being considered for
appointment. Presently Article 157 only says that the person should be a
citizen of India and has completed 35 years of age.
The Sarkaria Commission approvingly quoted the eligibility criteria that
Jawaharlal Nehru advocated and recommended its adoption in selecting
Governors. These criteria are:
1.
2.
3.
He should be a detached figure and not too intimately connected with the
local politics of the States; and
4.
He should be a person who has not taken too great a part in politics
generally and particularly in the recent past.
The words and phrases like eminent, detached figure, not taken active
part in politics are susceptible to varying interpretations and parties in power
at the Centre seem to have given scant attention to such criteria. The result has
been politicization of Governorship and sometimes people unworthy of holding
such high Constitutional positions getting appointed. This has led to some
parties demanding the abolition of the office itself and public demonstration
against some Governors in some States. This trend not only undermines
Constitutional governance but also leads to unhealthy developments in CentreState relations.
The Commission is of the view that the Central Government should adopt
strict guidelines as recommended in the Sarkaria report and follow its mandate
in letter and spirit lest appointments to the high Constitutional office should
become a constant irritant in Centre-State relations and sometimes
embarrassment to the Government itself.
Governors should be given a fixed tenure of five years and their removal
should not be at the sweet will of the Government at the Centre. The phrase
during the pleasure of the President in Article 156 should be substituted by
an appropriate procedure under which a Governor who is to be reprimanded
or removed for whatever reasons is given an opportunity to defend his position
and the decision is taken in a fair and dignified manner befitting a Constitutional
office.
It is necessary to provide for impeachment of the Governor on the same lines
as provided for impeachment of the President in Article 61 of the Constitution.
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The dignity and independence of the office warrants such a procedure. The
pleasure doctrine coupled with the lack of an appropriate procedure for the
removal of Governors is inimical to the idea of Constitutionalism and fairness.
Given the politics of the day, the situation can lead to unsavory situations and
arbitrariness in the exercise of power. Of course, such impeachment can only
be in relation to the discharge of functions of the office of a Governor or
violations of Constitutional values and principles. The procedure laid down for
impeachment of President, mutatis mutandis can be made applicable for
impeachment of Governors as well.
B.
Notes
Article 163(2) gives an impression that the Governor has a wide, undefined
area of discretionary powers even outside situations where the Constitution
has expressly provided for it. Such an impression needs to be dispelled. The
Commission is of the view that the scope of discretionary powers under
Article 163(2) has to be narrowly construed, effectively dispelling the
apprehension, if any, that the so-called discretionary powers extends to all the
functions that the Governor is empowered under the Constitution. Article 163
does not give the Governor a general discretionary power to act against or
without the advice of his Council of Ministers. In fact, the area for the
exercise of discretion is limited and even in this limited area, his choice of
action should not be nor appear to be arbitrary or fanciful. It must be a choice
dictated by reason, activated by good faith and tempered by caution.
In respect of Bills passed by the Legislative Assembly of a State, the Governor
is expected to declare that he assents to the Bill or that he withholds assent
therefrom or that he reserves the Bill for the consideration of the President.
He has the discretion also to return the Bill (except Money Bill) for reconsideration of the House together with the message he might convey for the
purpose. If on such reconsideration the Bill is passed again, with or without
amendments, the Governor is obliged to give his assent. Furthermore, it is
necessary to prescribe a time limit within which the Governor should take the
decision whether to grant assent or to reserve it for consideration of the
President.
On the question of Governors role in appointment of Chief Minister in the
case of an hung assembly there have been judicial opinions and
recommendations of expert commissions in the past. Having examined those
materials and having taken cognizance of the changing political scenario in the
country, the Commission is of the view that it is necessary to lay down certain
clear guidelines to be followed as Constitutional conventions in this regard.
These guidelines may be as follows:
1.
2.
3.
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(b) The largest single party staking a claim to form the government with
the support of others.
(c) A post-electoral coalition with all partners joining the government.
(d) A post-electoral alliance with some parties joining the government
and the remaining including independents supporting the government
from outside.
On the question of dismissal of a Chief Minister, the Governor should invariably
insist on the Chief Minister proving his majority on the floor of the House for
which he should prescribe a time limit.
On the question of granting sanction for prosecution of a State Minister in
situations where the Council of Ministers advised to the contrary, the
Commission would endorse the interpretation given by the Supreme Court to
the effect that if the Cabinet decision appears to the Governor to be motivated
by bias in the face of overwhelming material, the Governor would be within
his rights to disregard the advice and grant sanction for prosecution. The
Commission recommends that Section 197 Criminal Procedure Code may be
suitably amended to reflect the position of law in this regard.
Thus the Sarkaria Commission & Punchhi Commission recommended to create
a balance between Centre & State relations.
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doctrine, it means that the holder of the office can be removed by the authority
at whose pleasure he holds office, at any time, without notice and without
assigning any cause. The doctrine of pleasure, however, is not a licence to act
with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does
not dispense with the need for a cause for withdrawal of the pleasure. In other
words, at pleasure doctrine enables the removal of a person holding office
at the pleasure of an Authority, summarily, without any obligation to give any
notice or hearing to the person removed, and without any obligation to assign
any reasons or disclose any cause for the removal, or withdrawal of pleasure.
The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the
Authority, but can only be for valid reasons.
Notes
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Governor can remain moribund and eclipsed whereas his execution of powers
and particularly the execution of discretionary powers are concerned. The
compatibility of removal and displeasure in turn adversely affect the decision
making process of the Governor whereas his special and discretionary powers
are concerned.
In the real effect and substance, the Governor looks after as well as nourishes
the interests of the party or alliance to which he is politically related. He is
there in the State to care for the interests of the leaders of party as well as the
interests of workers of the party which has inducted him in the State. These
party leaders and party workers are in a position to attract the vote bank of
the State in favor of the party to which the Governor is politically related.
Governor in the real sense is a protem of the party in power. As a natural
corollary, he is to look after the vested interests and health of the party in
power to which he is politically related. Consequently, his judgment is bound
to affect the States decision making process by the ideas which he already has
on his slate. In this state of mind intrinsically he will be pushed to do even
apolitical act to safeguard the health of his party, may it adversely affect the
smooth functioning of the State. While passing through this sort of affairs, off
and on, he has to act as a cross Governor. It is submitted that the contradictory
provisions relating to his tenure of office are the hurdle in his path to be
realized as a positive Governor. Thus, Article 156 of the Constitution is used
and misused to meet the partisan ends of the party in power at the Centre.
The Supreme Courts interpretation
In 2010, a constitutional bench of the Supreme Court interpreted these
provisions and laid down some binding principles (B.P. Singhal v. Union of
India). In this case, the newly elected central government had removed the
Governors of Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004 after the
14thLok Sabha election. When these removals were challenged, the Supreme
Court held:
1.
The President, in effect the central government, has the power to remove
a Governor at any time without giving him or her any reason, and without
granting an opportunity to be heard.
2.
3.
The mere reason that a Governor is at variance with the policies and
ideologies of the central government, or that the central government has
lost confidence in him or her, is not sufficient to remove a Governor.
Thus, a change in central government cannot be a ground for removal of
Governors, or to appoint more favourable persons to this post.
4.
In summary, this means that the central government enjoys the power to
remove Governors of the different states, as long as it does not act arbitrarily,
without reason, or in bad faith.
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Notes
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cabinet while EGoMs were authorised to decide on their own. UPA 1 set up
about 80 GoMs and eGoMs, and UPA 2 took this figure to about 120.
Such ministerial panels were reported to have been formed whenever the Cabinet
or its Committees wanted to have further deliberations for resolution of various
issues. From the pricing of a stake sale in government companies to sanctioning
of new Metro rail projects and considering steps to curb corruption, GoMs and
eGoMs were set up for a wide variety of eclectic subjects.
The GoMs brought into play collective wisdom and institutional experience. It
acted as a single window clearance system. In the coalition era, GoMs and
EGoMs did serve the purpose for which they were set up. They decided
several contentious issues, including the plan for restructuring Air India, the
amendments to strengthen Indias anti-rape laws following the Delhi gang rape,
the allocation of natural gas to different industries and 2G spectrum pricing in
the aftermath of the 2G scam, among several other decisions. But they had
also brought policy paralysis in the system due to long deliberations. Telangana,
for instance, was first referred to a ministerial panel in 2004. Discussions
continued till 2012.
Aftereffects
The concept was also criticized for diluting the doctrine of Cabinet
responsibility.
Credibility Crisis
Investigation (CBI)
of
Central Bureau
of
During the early stages of World War-II, the then Government of India realized
that the enormously expanded expenditure for purposes connected with the
war had brought about a situation in which unscrupulous and antisocial persons,
both officials and non-officials, were enriching themselves dishonestly at the
cost of the public and the Government. It was felt that the Police and other
Law Enforcement Agencies, which functioned under the State Governments,
were not adequate to cope with the situation. It was under these circumstances,
that the setting up of a separate organization to investigate offences connected
with these transactions became a dire necessity. Consequently, the organization
known as the Special Police Establishment (S.P.E.) was created under a Deputy
Inspector- General of Police by the Government of India, in 1941, by an
executive order.
The functions of the S.P.E. were to investigate cases of bribery and corruption
in transactions with which the War and Supply Department of the Government
of India was concerned.
Even after the end of the War, the need for a Central Government agency to
investigate cases of bribery and corruption by Central Government employees
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was felt. This was subsequently replaced by the Delhi Special Police
Establishment 1946. This Act transferred the superintendence of the SPE to
the Home Department and its functions were enlarged to cover all departments
of the Govt. of India. The jurisdiction of the SPE extended to all the Union
Territories and could be extended also to the States with the consent of the
State Government concerned.
Notes
b)
The cases, which are essentially and substantially against State Government
employees or are in respect of matters concerning the State Government,
shall be investigated by the State Police irrespective of the fact that certain
employees of the Central Government are also involved as co-accused.
CBI will just assist them.
c)
Cases relating to the breaches of Central Laws; Big cases of fraud, cheating,
embezzlement etc; Cases having interstate and international ramifications
CBI will be the sole authority engaged in investigation of cases.
The Parliament has passed Lokpal and Lokayuktas Act, 2013. According to
the Act, selection of Director, CBI is to be done by a High Powered Committee
chaired by Honble Prime Minister of India. Lokpal will also have
superintendence over CBI for cases referred to it by the Lokpal.
Recently according to Supreme Court judgment, the Central Bureau of
Investigation (CBI) does not need the governments permission to investigate
senior bureaucrats in court-monitored corruption cases.
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Credibility of CBI
The strength of a country is determined by the credibility of its institutions
and not so much by the numerical strength of its institutions. The founding
fathers of the Indian Constitution took great care to establish certain institutions
which would work as the bulwark of democracy and ensure justice, liberty,
equality and fraternity to citizens. These institutions are unfortunately under
attack by a predatory executive.
In its initial years the organisation was widely respected on account of the high
calibre and integrity of its directors like D P Kohli, F V Arul and others
backed by the high degree of professionalism of its investigating officers and
inbuilt multi-layered decision making procedures and strict internal vigilance
mechanism.
It was also able to maintain a much more impressive track record of securing
convictions, as compared to the state anti-corruption bureaus which perform a
similar function in respect of the state government employees, largely by being
selective in registering offences and the expertise and professionalism of its
investigating officers built over years.
Over the years, its charter was expanded to not only investigate cases of
bribery against central government employees but also serious fiscal crimes,
including hawala transactions, trans-border offences having national security
ramifications, anti-terrorism cases etc, thus transgressing into the State List
under the Constitution.
But the CBI has recently been prominently in the news. The Supreme Court
had placed the allegations against the Director of Central Bureau of Investigation
(CBI) for meeting persons linked with the 2G scam and coal scam at his
residence. The court, which is currently monitoring investigation into these
corruption cases, has evidence reflected in the entries in the visitors register
maintained by his security staff. It is a matter of grave concern that the
agency is facing such a crisis of credibility. The CBI has often been criticised
for its alleged failure to function impartially and objectively as an agency of
law, but simultaneously there has always been an ever-increasing demand for
investigation of complicated cases involving influential persons to be handed
over to the CBI. This happens despite the fact that the record of CBI in such
cases has not been very laudable.
The Police though are a state subject, the public do not have faith in their own
police forces. The public want a police organisation, which would not allow
anyone to rise above the law of the land. They expect the CBI to always do
better investigations than their own police forces. Two things are needed for
quality investigations- skill and impartiality.
According to few, the CBI has achieved its eminence as a premier investigating
agency in the country by default. The CBI is great because the state police
forces are poor. After all, the majority of senior officers and a large number
of other ranks and men in the CBI are on deputation from the state police
forces- the same forces that are considered inferior to the CBI. There are,
however, a few significant differences between the CBI and the state police
forces. One, the CBI is a specialised agency, doing only crime investigation
work, while the state police have to perform multifarious tasks. Two, the level
at which crime investigation work is done and supervised is higher in the CBI
than what it is in state police forces. Three, the CBI does not have to interact
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with the public as closely and frequently as the state police forces do. In any
case, the organisation, unlike the state police, is not required to confront the
public in many adversarial roles, requiring use of force.
Notes
The CBI is definitely not very effective when it comes to dealing with crimes
committed by serving politicians belonging to the party in power. Thus CBI
credibility can be questioned. There have been many cases where the CBI has
shown either reluctance to take up cases against ruling party politicians, or
when forced to do so, adopted dilatory tactics. In the Havala case, the Supreme
Court pulled up the CBI for showing inertia to investigate offences involving
influential persons. The CBI is also alleged to have been involved in cases
instituted mainly to harass and intimidate political opponents. The way the
CBI was manipulated and misused during the Emergency is now a part of
history. The CBIs role in these cases was considered controversial.
The crooked politicians take advantage of the public perception that the CBI
in its work is occasionally influenced by political considerations. Even where
action taken against them is perfectly legitimate and is as per the law, they
invariably pose as victims of political vendetta and witch hunting. The CBIs
misfortune is that it is a police organisation. Like all police forces in the
country, it has been open and amenable to undesirable illegitimate influences
from its political masters.
From time to time, the central government has issued orders scuttling the
powers of the CBI so that it becomes a toothless tiger and highly dependent
on the government even in conducting its operations. During Rajiv Gandhis
time, a Single Directive was issued by the government, prescribing that no case
against an officer of the rank of Joint Secretary and above would even be
registered without written permission from the head of the government. In the
Havala case, the Supreme Court struck down the Directive as illegal, but the
Government of India has again brought it back by including it in the Central
Vigilance Commission Act of 2003. Earlier, it was only a set of executive
instructions; now it has become a part of law.
The Central Vigilance Commission, which was meant to provide the oversight
and support to the CBI, has also failed to give it the desired direction, or
insulate it from governmental interference. The CBI also does not have a cadre
of supervisory officers of its own and relies on the tedious and uncertain
system of induction of officers through deputation from the state police forces
and central police organisations.
Within the government, its control has been shifting from ministry to ministry.
Initially it was home, then department of personnel and training. Development
of requisite expertise in investigation and prosecution of anti-corruption cases
thus became a casualty. The organisation also could not keep itself afloat
above the rapid decline of the ethical and moral fabric of our body politic and
governance.
To reduce the load on the CBI, it is imperative to help the state CIDS to
acquire the requisite infrastructure, training and manpower resources to obtain
higher marks from the trial criminal courts in terms of convictions and also
retain a semblance of insulation from political and bureaucratic interference.
Thus if the CBI has to function as an impartial and effective organization,
certain measures are essential. One of these is to enact a law, which must
define the status, functions and powers of the CBI, lay down safeguards to
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ensure the objectivity and impartiality of the organisation and not allow anyone
to enjoy impunity.
Gram Nyalayas
Equality and justice are indisputably two key facets of the idea of a modern,
democratic, and constitution-adhering India. The principles of equality and
justice are realized by the State apparatus through the business of administration
of justice. Indias judicial system is characterized by systemic problems, including
corruption, delays, pendency, increasing costs, limited legal aid, and a lack of
appropriately trained lawyers and judges.
To overcome these problems the Law Ministry had set up Gram Nyayalays in
2009 with an aim to provide a cost-effective forum at the grass-root level for
the poor living in villages to settle legal matters. It was established by the
Gram Nyayalayas Act 2008
This Act perpetuates the phenomenon of two Indias that of the betterresourced urban citizen who can afford and has access to the courts, and the
other India of the impoverished the more disconnected rural citizen, who
gets primary access to forums that focus primarily on disposing of their claims,
minus the application of essential safeguards of the legal process lawyers,
appeals, procedural protections, and evidentiary requirements.
The Gram Nyayalaya was proposed by the 114th Law Commission in 1986.
The report recommended the concept of the Gram Nyayalaya with two
objectives. While addressing the pendency in the subordinate courts was the
major objective, the other objective was the introduction of a participatory
forum of justice. To make it participatory the Law Commission recommended
that the Magistrate be accompanied by two lay persons who shall act as
Judges, that the legal training of the Magistrate will be complemented by the
knowledge of the lay persons who would bring in the much required socioeconomic dimension to adjudication. It was proposed that such a model of
adjudication will be best suited for rural litigation. The Law Commission also
observed that such a court would be ideally suited for the villages as the nature
of disputes coming before such a court would be simple, uncomplicated and
easy of solution and that such disputes should not be enmeshed in procedural
claptrap.
Analysis of Gram Nyalayas
The Gram Nyayalaya, the latest judicial mechanism to provide access to justice
at grass root level although, looks beautiful from its face, but, there may be
some practical difficulties in its functioning. The problems may be described
as:
About the adequate number of courts to address whole of rural IndiaInitially, It was decided to form Gram Nyayalaya for every 50000 people
and estimated 6000 Gram Nyayalaya is to be constitutedand atpresent
the government has declared 5000 Gram Nyayalayais to be constituted.
But, from the population and Nyayalaya ratio it can beapprehended that
the number ofNyayalayas cannot meet the wholeof rural India. So many
people cannot getthe benefit of these courts.
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2)
It is a win win system where all the parties to the dispute have something
to gain.
3)
4)
5)
The parties to a dispute can interact directly with the presiding officer,
which is not possible in the case of a court proceeding.
6)
7)
8)
9)
Notes
Partition Claims
Damages Cases
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First, there is no court fee and even if the case is already filed in the
regular court, the fee paid will be refunded if the dispute is settled at the
Lok Adalat.
b)
c)
Thirdly, disputes can be brought before the Lok Adalat directly instead of
going to a regular court first and then to the Lok Adalat.
d)
Fourthly, the decision of the Lok Adalat is binding on the parties to the
dispute and its order is capable of execution through legal process. No
appeal lies against the order of the Lok Adalat whereas in the regular law
courts there is always a scope to appeal to the higher forum on the decision
of the trial court, which causes delay in the settlement of the dispute
finally. The reason being that in a regular court, decision is that of the
court but in Lok Adalat it is mutual settlement and hence no case for
appeal will arise. In every respect the scheme of Lok Adalat is a boon to
the litigant public, where they can get their disputes settled fast and free
of cost.
e)
Last but not the least, faster and inexpensive remedy with legal status.
The system has received laurels from the parties involved in particular and the
public and the legal functionaries, in general. It also helps in emergence of
jurisprudence of peace in the larger interest of justice and wider sections of
society. Its process is voluntary and works on the principle that both parties to
the disputes are willing to sort out their disputes by amicable solutions. Through
this mechanism, disputes can be settled in a simpler, quicker and cost-effective
way at all the three stages i.e. pre-litigation, pending-litigation and post-litigation.
Overall effect of the scheme of the Lok Adalat is that the parties to the
disputes sit across the table and sort out their disputes by way of conciliation
in presence of the Lok Adalat Judges, who would be guiding them on technical
legal aspects of the controversies.
The scheme also helps the overburdened Court to alleviate the burden of
arrears of cases and as the award becomes final and binding on both the
parties, no appeal is filed in the Appellate Court and, as such, the burden of
the Appellate Court in hierarchy is also reduced. The scheme is not only
helpful to the parties, but also to the overburdened Courts to achieve the
constitutional goal of speedy disposal of the cases. About 90% of the cases
filed in the developed countries are settled mutually by conciliation, mediation
etc. and, as such, only 10% of the cases are decided by the Courts there. In
our country, which is developing, has unlike the developed countries, number
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Notes
Criticism
The right to appeal is one of the most basic features of any sound legal
system. It sprouts from the principle to err is human, It recognizes the fact that
it is impossible to be infallible always. Lok Adalats cannot proceed to pass
awards unless the parties to a dispute under its consideration, agrees to the
passing of an award. In such a situation, by agreeing, the parties are estopping
themselves from challenging it afterwards. In that case, denial of an appeal
provision can well be justified. But a Permanent Lok Adalat can proceed to
dispose of a matter referred to it even without the consent of the parties to
such dispute. And the PLA does not have to go by the rules of evidence
contained in The Indian Evidence Act. Moreover, a party can be drawn to
PLA, despite his wishes. In such a situation, denying a chance to appeal may
not be in consonance with our most cherished legal principle:Justice should not
only be done, but should manifestly and undoubtedly be seen to be done.
Economic Inequality (Legal Aid) - the poor can not afford good legal
counsels to get them out on bail, nor can they afford the bail amount.
This was sought to be remedied by the provisions of legal aid and an
attorney for all those below a certain specified income bracket. They have
a right to be informed about the same, since being illiterate and poor, they
are often unaware of their rights.
2)
3)
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During the period from 1stApril, 2011 to 30thSeptember, 2011 more than 6.95
lakh persons have benefited through legal aid services in the country. Out of
them, more than 25.1 thousand persons belonged to the Scheduled Castes,
about 11.5 thousand Scheduled Tribes, about 24.6 thousand were women and
1.6 thousand were children. During this period, 53,508 Lok Adalats were
organised.These Lok Adalats settled more than 13.75 lakh cases. In about
39.9 thousand Motor Vehicle Accident Claim cases, compensation to the tune
of Rs. 420.12 crore has been awarded.
Analysis of the working of NALSA:
The National Legal Services Authority was set up in 1995 under the Legal
Services Authorities Act 1987 to provide free and competent legal services
to the needy.
According to the views of the Committee headed by EM Sudarsana
Natchiappan the programme lacked proper planning and suffered from paucity
of funds and failure at the level of states to utilise even the grants made. The
actual benefit of this scheme is not gaining access to poor litigants and the
programme is confined to high profile areas or capital cities only.
To be eligible for legal aid, the annual income limit fixed by the central
government for cases before the Supreme Court is Rs 50,000. Fourteen states
have to catch up with even that.
Over the past decade, the Authority claims to have aided 8.25 million individuals,
besides holding 4,86,000 Lok Adalats or conciliation courts nationwide and
settling 18.3 million cases. But critics say that tells little about the sort of cases
in which the Authority helped individuals, the quality of legal aid or the
outcome. Nor does it tell the plight of citizens who are neither eligible for
legal aid nor can afford legal recourse on their own with no limits enforced
on lawyers fees or duration of proceedings.
As in ordinary cases, in aided cases, too, the quality of lawyering is a key issue,
only perhaps more so given the meagre fees NALSA advocates supposedly
get.
The Committee noted that counsels engaged for the poor under the legal aid
programme are paid meagerly and good and reputed lawyers do not come
forward to take up the cases. Even Senior Advocates do not take up such
cases. As a result poor litigants feel that legal aid being provided to them is
mere eyewash.
The Committee recommended reasonably enhancing the fee structure and
standardising it nationwide so as to draw experienced and competent lawyers
to legal aid.
The Committee said that the government has been providing adequate funds
to NALSA from year to year. However, there has not been total utilisation of
the allocated grants.
Some steps taken by NALSA to bring justice at the doorstep:
a)
Para-Legal Volunteers
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In order to reach out to the common people, NALSA has come up with a
project to set up legal aid clinics in all villages, subject to financial viability.
Ignorance of what to do when faced with law-related situations is a common
problem for disempowered people. Legal aid clinics work on the lines of
primary health centres, where assistance is given for simple ailments and other
minor medical requirements of village residents. Legal aid clinics assist in
drafting simple notices, filling up forms to avail benefits under governmental
schemes and by giving initial advice on simple problems. A legal aid clinic is
a facility to assist and empower people who face barriers to access to justice.
Trained para-legal volunteers are available to run legal aid clinics in villages.
The common people in villages will feel more confident to discuss their problems
with a friendly volunteer from their own community rather than with a citybased legal professional. The volunteers will refer any complicated legal matters
that require professional assistance to the nearest legal services institutions.
When complex legal problems are involved, the services of professional lawyers
will be made available in the legal aid clinics.
c)
There has been a widespread grievance that lawyers engaged by legal services
institutions do not perform their duties effectively and that the lawyers are not
paid commensurately for their work. In order to solve these problems, NALSA
has framed the National Legal Services Authority (Free and Competent Legal
services) Regulations, 2010 to provide free and competent legal services. Scrutiny
of legal aid applications, monitoring of cases where legal aid is provided, and
engaging senior lawyers on payment of regular fees in special cases, are the
salient features of the Regulations. In serious matters where the life and liberty
of a person are in jeopardy, the Regulations empower legal services authorities
to specially engage senior lawyers.
d)
NALSA has organized camps targeted neighbourhood itself. The people shall
not be made to travel long distances for the purpose of attending camps.
Instead of pompous inaugural functions and speeches, time, energy and resources
shall be devoted on interaction with the people. Local bar shall be encouraged
to participate. Local voluntarily organizations, social clubs, colleges, universities
and other educational institutions shall be engaged to join as partners in such
ventures for mutual benefit.
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e)
Association of law students with the work of providing legal services would
not only help the cause of legal services but also give to the young students
a sense of identification and involvement with the cause of the poor.
The legal aid clinic is an excellent medium to teach professional responsibility
and a greater sense of public service. The law school legal aid clinic is a viable
and effective instrument for community education and preventive legal services
programme. Including the law students in legal aid will contribute towards a
better legal education, socially relevant and professionally valuable. The law
school clinics can plough back into the legal curriculum and will be a goldmine
of information that can make learning and teaching of law stimulating,
challenging and productive.
Law school legal aid clinic can be located at the law colleges premises itself
which will be an excellent source for study of conflicts in civil society.
Each State Authority shall prepare a law school legal aid manual depending on
the local needs of the State.
The law students shall be encouraged to form into different groups, each group
adopting a village, preferably a remote village. The students who have adopted
a village may conduct socio-legal surveys in that village. The questionnaire in
the surveys may be prepared in consultation with the teachers of the law
schools, the contents of which may vary depending on the local circumstances.
The questionnaire shall be sufficient enough to gather the problems faced by
villagers especially relating to their legal rights.
f)
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For democracy to survive, it is essential that the best available men should be
chosen as peoples representatives for proper governance of the country. This
can be best achieved through men of high moral and ethical values, who win
the elections on a positive vote. But these days almost all candidates standing
in elections are not upto to the expectations of people. So the Supreme Court
in Writ Petition directed to provide a NOTA option on the EVM and ballot
papers so that the electors who do not want to vote for any of the candidates
can exercise their option in secrecy. Thus by casting this protest vote people
can show their dissent and disapproval to these candidates.
Notes
The Supreme Court held that the provisions of Rule 49-O under which an
elector not wishing to vote for any candidate had to inform the Presiding
Officer about his decision, are ultra vires Article 19 of the Constitution and
Section 128 of the Representation of the People Act, 1951.
Rule 49-O was a rule in the Conduct of Elections Rules of India, which governs
elections in the country. It described the procedure to be followed when a valid voter
decides not to cast his vote, and decides to record this fact.
49-O states that if an elector, after his electoral roll number has been duly entered
in the register of voters in Form 17A and has put his signature or thumb impression
thereon as required under sub-rule (1) of rule 49L, decided not to record his vote,
a remark to this effect shall be made against the said entry in Form 17A by the
presiding officer and the signature or thumb impression of the elector shall be
obtained against such remark.
The two main key components that came out of the Supreme Court judgment
are:
Right to vote also includes a right not to vote i.e right to reject. Right to
reject implies that a voter while voting has every right not to opt for any
of the candidates during an election. Such a right implies a choice to
remain neutral .This may happen when a voter feels that none of the
candidate in a candidacy deserves to be elected. It happens by the way of
his choice, belief, thinking and expression. Right to reject has its genus in
freedom of speech and expression.
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NOTA option gives the voter the right to express his disapproval with the
kind of candidates that are being put up by the political parties. When the
political parties will realize that a large number of people are expressing
their disapproval with the candidates being put up by them, gradually
there will be a systemic change and the political parties will be forced to
accept the will of the people and field candidates who are known for their
integrity
For democracy to survive, it is essential that the best available men should
be chosen as peoples representatives for proper governance of the country.
Thus in a vibrant democracy, the voter must be given an opportunity to
choose None of the Above (NOTA) button, which will indeed compel
the political parties to nominate a sound candidate. This situation palpably
tells us the dire need of negative voting.
b)
In case the none-of-the-above option gets more votes than any of the
candidates, none of the candidates should be declared elected and a fresh
election held in which none of the candidates in this election are allowed
to contest.
c)
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d)
If even in this round, the none-of-the above option gets the highest
number of votes cast or none of the candidate gets at least 50 percent +
one of the votes cast, then the process should be repeated.
Notes
This may appear to be a cumbersome and tedious process but it will nudge the
entire system in the direction of (a) better representativeness among the elected
representatives by reducing the sectarian effects of vote banks, and (b)
encouraging political parties to put up better candidates.
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The legal services authorities in the States should set up committees with the
participation of civil society for bringing the accused and the victims together
to work out compounding of offences.
Notes
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the state of Jammu and Kashmir to confront the rising insurgency in the area.
In Manipur, despite opposition from the Central government, state government
withdrew the Act in some parts in Aug, 2004.
Power to Declare Areas to be Disturbed Areas lies to the Governor of that
State or the Administrator of that Union territory or the Central Government,
in either case, if of the opinion that the whole or any part of such State or
Union territory, as the case may be, is in such a disturbed or dangerous condition
that the use of armed forces in aidof the civil powers in necessary, the Governor
of that State or the Administrator of that Union territory or the Central
Government, as the case may be, may, by notification in the Official Gazette,
declare the whole or such part of such State or Union territory to be a disturbed
area.
Special Powers of the Armed Forces provided under the Act are:
Any commissioned officer, warrant officer, non commissioned officer or any
other person of equivalent rank in the armed forces have the following powers(a) If he is of opinion that it is necessary so to do for the maintenance of
Public order, after giving such due warning as he may consider necessary,
fire upon or otherwise use force, even to the causing of death, against any
person who is acting in contravention of any law or order for the time
being in force in the disturbed area prohibiting the assembly of five or
more persons or the carrying of weapons or of things capable of being
used as weapons or of fire-arms, ammunition or explosive substances;
(b) If he is of opinion that it is necessary so to do, destroy any arms dump,
prepared or fortified position or shelter from which armed attacks are
made or are likely to be made or are attempted to be made, or any
structure used as a training camp for armed volunteers or utilised as a
hide-out by armed gangs or absconders wanted for any offence;
(c) Arrest, without warrant, any person who has committed a cognisable
offence or against whom a reasonable suspicion exists that he has committed
or is about to commit a cognisable offence and may use such force as may
be necessary to effect the arrest;
(d) Enter and search without warrant any premises to make any such arrest
as aforesaid or to recover any person believed to be wrongfully restrained
or confined or any property reasonably suspected to be stolen property or
any arms, ammunition or explosive substances believed to be unlawfully
kept in such premises and may for that Purpose use such force as may be
necessary.
The Act states that after the military have arrested someone under the AFSPA,
they must hand that person over to the nearest police station with the least
possible delay. There is no definition in the act of what constitutes the least
possible delay. Some case-law has established that 4 to 5 days is too long. But
since this provision has been interpreted as depending on the specifics
circumstances of each case, there is no precise amount of time after which the
section is violated. The holding of the arrested person, without review by a
magistrate, constitutes arbitrary detention.
The Act establishes that no legal proceeding can be brought against any member
of the armed forces acting under the AFSPA, without the permission of the
Central Government. This section leaves the victims of the armed forces
abuses without a remedy.
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Issues
a)
Notes
Under the Indian Constitution, the AFSPA violates the following articles: (a)
Article 21 The right to life is violated by section 4(a) of the AFSPA, which
grants the armed forces the power to shoot to kill in law enforcement situations
without regard to the restrictions of international human rights law on the use
of lethal force ; (b) Article 14 The right to equality This article guarantees
that the State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India; (c) Article 22Protection against arrest and detention. Article 22 of the Indian Constitution
provides protection against arrest and detention and under section 5 of the
AFSPA, a person arrested must be handed over to the nearest police station
with the least possible delay along with the circumstances occasioning such
arrest but this has not been followed at all.
b)
The Armed Forces (Special Powers) Act has come in for widespread criticism
in Jammu andKashmir, Manipur and other parts of the northeast because of
the human rights abuses that have come to be associated with its operation.
AFSPA does not distinguish between a peaceful gathering of five or more
persons (even if held in contravention of Section 144 of the Criminal Procedure
Code) and a violent mob. Firing upon the latter may sometimes be justified
by necessity; shooting into a peaceful assembly would surely fail any test of
reasonableness.
Human Rights Watch alleged that of the thousands of disappearances that
occurred within the region in the years following 1989, were mainly militants
killed by security forces and buried in unmarked graves. Human Rights Watch
also claims that torture by security forces is widespread, and that militants are
routinely executed by security forces without trial simply because they pose
a security threat.
Additionally, a number of cases of innocent people being killed by security
forces under the cover of AFSPA exist.
The AFSPA has violated womens rights for a long time. Many cases of
wrongful arrest, torture and rape have occurred since AFSPA was imposed.
The cases of sexual assault by army officials also exist. A report by a
committee headed by Justice Verma on sexual violence within the country,
released in January 2013, stated that the AFSPA needs to be revised regarding
the protection of women in conflict areas. In April 2013, Rashida Manjoo, the
UN Special Rapporteur on violence against women, called for the repeal of the
law, stating that the AFSPA had resulted in impunity for human rights
violations broadly.In fact, even the Chief Minister of the state of Jammu and
Kashmir, Omar Abdullah, asked the Central Government of India to either
withdraw, or at least partially modify the law.
c)
AFSPA does not define the term disturbed areas. The decision of the
government to declare a particular area disturbed cannot be challenged in a
court of law.
Further the enactment of AFSPAhas led to an incessant militarization of the
region. Thousands of children have grown up, and continue to grow up seeing
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Violates UN Provisions
United Nations Human Rights Commission have stated that AFSPA violates
the various provisions of United Nations Universal Declaration on Human
Rights and other International Laws. They include violation of the rights to
free and equal dignity, non discrimination based on creed or religion, right to
life, security and equality before law etc. Certain important facets of AFSPA
which allegedly violate International Laws are given under:
f)
Immunity to Officers
The law also states that, no prosecution can be initiated against an officer
without the previous sanction of the Central government. Purportedly, the
logic behind the inclusion of this section is, to protect the officers from frivolous
and misguided allegations. The government is usually not very fluid in giving
this much-needed sanction, in order to express their faith in the armed forces
and protect their interests.
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A government which has faith in the actions of its officers and the robustness
of its judicial system ought never to shy away from allowing the courts to step
in when doubts arise. And yet, in case after case, legal proceedings get stymied
by the denial of official sanction.
Notes
Increase in Militancy
AFSPA can be questioned from the security point of view. It was enacted in
1958 on an experimental basis for six months as a measure against terrorist
groups in the North East. It was applied first in Nagaland, in 1980 in Manipur,
later in Jammu andKashmirand over the decades in more areas of the North
East. What was enacted for six months has remained for more than five
decades. In 1958 there was one terrorist group in the North East. Manipur
had two groups when the State was brought under the Act. Today, Manipur
has more than twenty such groups, Assam has not less than fifteen, Meghalaya
has five of them and other States have more groups. Thus proliferation of
militant groups occurred in spite of the Act.
h)
With AFSPA around, military or paramilitary units do not feel the need for
restraint or fire control (leading to incidents like the one at Malom which led
Irom Sharmila to start her hunger strike). That leads to a sharp drop in
professionalism and actually dehumanises and corruptsthe Armyand
paramilitary forces.
Points in favour of AFSPA
The army is designed and structured for fighting external enemies of the
nation. Consequently, they are not given any police powers. However, when
the nation wants the army to conduct counter-insurgency and counter-terrorist
operations, then they must be given the legal authority to conduct their
operations without the impediment of getting clearances from the higher
authorities . If this is not done, they would be unable to function efficiently
and defeat the insurgents and terrorists at their own game. It is for this reason
that the Act gives the basic four powers to army personnel. These are for
enter and search, arrest without warrant, destroy arms dumps or other
fortifications and fire or use force after due warning where possible. Once
again, there is a safeguard in the Act, which stipulates that the arrested person(s)
will be handed over speedily to the nearest police station.
Under the Act:
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vested to the armed forces through this act. Most provisions of section 4
are already vested with the police even in normal circumstances. Police
does also arrest a person without warrant when the person is accused of
committing a cognisable offence, particularly under UAPA which is covered
in the later part of this paper.
Armed forces are directed to use minimum possible force required for
necessary action against persons acting in contravention to the laid down
prohibitive laws. This aspect is reflected in the directions of the Supreme
Court on the subject and the Army Doctrine on Sub Conventional Warfare.
All actions of search and seizure are carried out with due deliberation.
The representatives of the police and villagers are involved while conducting
any cordon and search operations. A No claim and No damage
certificate is also obtained by the armed forces after conduct of such
operations from the village head or the representative of the civil
administration. If there is any unintended damage, suitable compensation
is also provided by the government. In case of any violation of HR by
the armed forces, the same is investigated and disciplinary actionis taken
against the defaulters.
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Thus, the Government of India stated Non-Resident Indians with Passport will
get to vote in India without being physicallypresent; either through e-postal
ballot or proxy voting. They will no longer need to come all the way to their
respective constituencies from abroad toclaim their stake in Indian democracy.
Notes
Prior to this only two categories of people who were abroad had the right to
vote through postal ballots - Indian diplomats and Indian armed personnel
working abroad. Now the government has extended this facility in the form of
e-postal ballots to NRIs living abroad.
Due to this step the lacuna of physical presence to allow voting through
section 20A stopped. According to the section 20A physical presence of NRIs
required in respective constituencies during election.
The NRIs should be allowed to vote because:
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After a Bill has been introduced, the Presiding Officer of the concerned
House (Speaker in case of the Lok Sabha, Chairman in case of Rajya
Sabha) may refer the Bill to the concerned Departmentally Related Standing
Committee for examination.The Standing Committee considers the broad
objectives and the specific clauses of the Bill referred to it and may invite
public comments on a Bill.
During theThird Reading (Passing), the House votes on the redrafted Bill.
If the Bill is passed in one House, it is then sent to the other House, where it
goes through the second and third readings.
During the second reading, the government, or any MP, may introduce
amendments to the Bill, some of which may be based on recommendations
of the Standing Committee.However, the government is not bound to accept
the Committees recommendations.
Step 4:After both Houses of Parliament pass a Bill, it is presented to the
President for assent.She has the right to seek information and clarification
about the Bill, and may return it to Parliament for reconsideration.(This may
be done only once.If both Houses pass the Bill again, the President has to
assent.)
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Notes
In this note we discuss the access individuals and stakeholders have to the
process of law making.
Mechanisms for public engagement with legislative process in India
Public participation with the legislative process may take place over three
stages; (i) the pre-legislative stage when the proposed law is in draft form prior
to its introduction in Parliament; (ii) the legislative stage which begins from the
time the Bill is introduced and ends once it is passed; and (iii) the postlegislative stage begins when the Bill is enacted.
Pre-legislative scrutiny
Legislative scrutiny
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Subordinate legislation: Rules and Regulations are tabled before Parliament after
they are notified by the executive. Once tabled, the Committee on Subordinate
Legislation may evaluate them for conformity with the Constitution and the
parent Act. Both Houses have a Committee on Subordinate Legislation. The
Committees are empowered to take submissions.
Post-legislative Scrutiny
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Notes
Paid News misleads the public and hampers the ability of people to form
correct opinions.
b)
Paid News causes undue influence on voters and also affects their Right
to Information.
c)
d)
The size of the market for paid news is very big. In Andhra Pradesh,
unions of journalists have estimated the size of the paid news market
to be somewhere between Rs 300 crore and Rs 1,000 crore.
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In the process, the candidates spent huge amounts of money for coverage
3packages which is a corrupt practice. These aspects have to be considered,
investigated and prevented by the machinery of the Election Commission of
India, as and when such things are happening. The Commission should not
leave it to be decided at the time of hearing of election petitions, which means
that the state
Notes
Existing legal provisions are adequate to punish offenders. Still the provisions
of the IPC could be amended to enhance the quantum of punishment and fine
for electoral offences. After a complaint is received and a press clipping provided
alleging publication of paid news, it should be presumed that the company or
individual against whom such an allegation has been made is guilty and the
burden should shift to the accused to prove his or her innocence. If the content
of the paid news item is excessively tendentious or exaggerated, the presumption
of liability should go up.
Appointing ombudsmen in media organizations and better self-regulation are
options to check the paid news phenomenon. However, self-regulation can
offer partial solutions to the problem since there would always be offenders
who would refuse to abide by voluntary codes of conduct and ethical norms
that are not legally mandated. The owners of media companies need to realize
that in the long term, such malpractices not just erode credibility of the media
but undermine the democracy in the country as well.
The phenomenon of paid news is therefore, a serious matter as it influences
the functioning of a free press. The media acts as a repository of public trust
for conveying correct and true information to the people. However, when paid
information is presented as news content, it could mislead the public and
thereby hamper their judgment to form a correct opinion. Thus, there is no
denying the fact that there is an urgent need to protect publics right to unbiased
information so that accurate information can come, before voters exercise
their franchise in favour of a particular candidate in the electoral fray.
Inquiring into and advising upon disputes which may have arisen between
States;
b)
c)
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Low Rate of Meetings: The ISC was established in 1990, i.e. 40 years after
the framing of the Constitution, it met for the first time only in 1996.
Even after that it had hardly met and has been unable to work to its full
potential. Committee has met only 10 times since its inception with last
meeting taking place eight years back in 2006.
Saddling the Council with functions under article 263 to inquire into and
advise upon disputes between the States would prevent it from giving full
attention to the various problems of national concern which it ought to
consider.
This body should replace the National Development Council, the Chief
Minister Conference, the Finance Minister Conference, the Food Ministers
Conference and the National Integration Council.
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B.
Notes
The Council should be charged with dutiesas explained above. The Council
should not be vested with powers of enquiring into and advising upon
disputes between the States;
C.
b)
c)
d)
e)
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Given the Constitutional and quasi-judicial tasks, the Council should have
experts in its organizational set up drawn from the disciplines of Law,
Management and Political Science besides the All India Services.
g)
Personal Status
b)
c)
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Constitutional Provision
Notes
The need for a uniform civil code is inscribed in Article 44 (Article 35 in the
draft constitution). This article is included in Part IV of the Constitution
dealing with the directive principles of state policy. The legal nature of the
Directive Principles is such that it cannot be enforced by any court and therefore
these are non judicial rights. The Constitution further calls upon the State to
apply these principles in making laws as these principles are fundamental in the
governance of the country.
Article 44, which deals with the Uniform Civil Code states: The State shall
endeavor to secure for the citizens, a uniform civil code throughout the territory
of India. The objective of this article is to effect an integration of India by
bringing all communities into a common platform which is at present governed
by personal laws which do not form the essence of any religion.
Importance of Uniform Civil Code
a)
Uniform Civil Code will in the long run ensure Equality. Also, UCC will
help to promote Gender equality.
b)
It will lead to national integration and draw minorities into the mainstream
c)
b)
The Uniform Civil Code should act in the best interest of all the religions.
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c)
b)
But including political parties under RTI can only do more harm than good.Under
the RTI Act, public authorities are required to provide access to procedures
and norms followed in decision making, minutes of meetings, records of
instructions given and decisions taken all information that gets generated and
recorded as per the requirements of the law governing the public authority. The
RTIdoes notrequire authorities to generatenew information or improve the
granularity of what gets recorded. Public authorities merely comply with the
laws under which they have been set up, andonlyopen their records to the
public. Therefore, if the regulating legislation does not require political parties
to report (or for that matter, record) information on small donors, there is
nothing that the RTI can do fill this lacunae.
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If political parties really want to circumvent the RTI, they can easily do so by
being careful about what goes in the minutes because instructions are often
passed orally unlike in a government office where there is strict requirement
to get directions issued in writing. Political associations work in an informal
setup, especially with respect to finances. A lot of black money gets used and
often there is no trail. There is no way then for the RTI to help extract any
useful (read: incriminating) information.
Notes
The real solution lies in amending the regulating legislation (in this case, The
Representation of the People Act, 1951) to make it mandatory for political
parties to record information on donors and to get their accounts audited by,
say, firms empanelled or approved by the Comptroller and Auditor General of
India (CAG) before submitting to the Election Commission. The Election
Commission can then make this information available to the public.
Even several months after the Central Information Commission ruled that the
Right to Information Act applied to six national political parties, none of them
has complied with the Act or appealed against it.
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2.
3.
4.
Lack of Ideology and Values in Politics: There has been a very sharp
erosion in the ideological orientation of political parties. Party dynamics
in India has led to the emergence of valueless politics much against the
ideals of the father of the nation, Mahatma Gandhi, who suggested that
the Congress party should be disbanded after the achievement of
Independence and its members should engage themselves in the service
of the people. But the democratic norms and institutions have been
destroyed systematically over the last fifty years of the working of the
Constitution. In the process, both the politicians and political parties
have lost their credibility, the ultimate value that should bind them with
the masses. There seems to be a crisis of character amongst the politicians,
as the system does not encourage the honest leader. Because of the
falling moral standards both in the public and among the leaders,
criminalisation of politics and politicization of criminals has become the
norm. Due to degeneration of leadership, parties have been entangled in
power struggle for the sake of personal ends.
5.
6.
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8.
9.
Notes
Presently there is no laws stating what parties can and cannot do. This creates
the risk that political parties may engage in ruthless politics with little or no
public accountability. One does not have to invent a new wheel. There is a
draft bill called the Political Parties (Registration and Regulation of Affairs,
etc) Act, 2011, prepared by the Centre for Standards in Public Life (CSPL)
under the guidance of former Chief Justice of India M N Venkatachaliah.
This draft bill attempts to address a wide spectrum of issues ranging from the
formation of political parties to registration, governance, accountability,
regulation of political parties, functions of parties and their discipline. It
compulsorily lays down the condition for maintenance and reporting on
accounts and all contributions above Rs 20,000 by political parties, clearly
noting that compliance with provisions of the Act and the declaration submitted
by political parties at the time of registration would be legally binding on
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them, on a continual basis. Strict norms have been laid down for the observance
of internal democracy like no nominations and periodic free and fair elections
for selecting various office-bearers within a political party. Addressing the existing
discrepancy where even unregistered parties can contest elections, the draft bill
calls for registration with the ECI as a necessary criterion for contesting elections.
Moreover the registrar, through this draft bill, is empowered to direct a special
audit of the accounts of any year of a party or of any local unit. The draft
bill strongly talks about penalties to be meted out to political parties in case
of deviance from the provisions laid down by the bill, by way of a fine of Rs
10,000 per day of non-compliance, imprisonment of up to three years, as well
as withdrawal of registration. Other significant grounds for de-registration of a
political party by the registrar, according to this draft bill, is the non-contesting
of more than one general election, or not securing a prescribed minimum
percentage of votes polled, or not taking part in mainstream political activities.
Amongst high-level government reports on this issue, there is the Law
Commissions 170th Report on Electoral Reforms (1999), the National
Commission for the Review of the Working of the Constitution report on
electoral reforms (2002) and the ECIs recommendation on electoral reforms
(2004). Though these reports strongly advocate the regulation of all political
parties through law, they recommend the inclusion of this law as part of the
already existing RPA, rather than enacting an exclusive Act for the regulation
of political parties in India.
Thus law is needed to curb the growth of valueless politics.
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Purpose of reservation
Notes
The proponents of the policy of reservation state that although equality of the
sexes is enshrined in the Constitution, it is not the reality. Therefore, vigorous
affirmative action is required to improve the condition of women. Also, there
is evidence that political reservation has increased redistribution of resources
in favour of the groups which benefit from reservation. A study about the
effect of reservation for women in panchayats shows that women elected
under the reservation policy invest more in the public goods closely linked to
womens concerns. A 2008 study, commissioned by the Ministry of Panchayati
Raj, reveals that a sizeable proportion of women representatives perceive an
enhancement in their self-esteem, confidence and decision-making ability.
Some opponents argue that separate constituencies for women would not only
narrow their outlook but lead to perpetuation of unequal status because they
would be seen as not competing on merit. For instance, in the Constituent
Assembly, Mrs Renuka Ray argued against reserving seats for women: When
there is reservation of seats for women, the question of their consideration for
general seats, however competent they may be, does not usually arise. We feel
that women will get more chances if the consideration is of ability alone.
Opponents also contend that reservation would not lead to political
empowerment of women because (a) larger issues of electoral reforms such as
measures to check criminalisation of politics, internal democracy in political
parties, influence of black money, etc. have not been addressed, and (b) it
could lead to election of proxies or relatives of male candidates.
Reservation of seats in Parliament restricts choice of voters to women
candidates. Therefore, some experts have suggested alternate methods such as
reservation in political parties and dual member constituencies.
Pros and cons of reservation in political parties and dual member constituencies
Advantages
Political Parties
Dual- member
constituencies
Disadvantages
No guarantee that a significant
number of women would get elected.
Political parties may assign women
candidates to constituencies where they are
weak.
Might lead to resentment if a woman is
accommodated to the disadvantage of a
stronger male candidate.
Sitting members may have to share their
political base.
Women may become secondary persons or
add-ons.
To fulfil criteria of 33% women, half of
the seats need to be dual constituencies.
This would increase the total number of
MPs by 50%, which could make
deliberation in Parliament more difficult.
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Notes
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b)
c)
The Prime Minister at the Centre and the Chief Minister in the States
against Ministers of the Union or the States respectively;
b)
c)
d)
e)
Any public servant, person or whistleblower may make a complaint (in hard
copy or by electronic mail) in good faith to the competent authority with full
details and accompanying documents within seven years of the occurrence of
the wrongdoing [except matters referred to a commission of inquiry under the
Commissions of Inquiry Act, 1952 or where a formal inquiry under the Public
Servants (Inquiries Act) 1850 has been launched]. A complaint will not be
inquired into if it does not mention the name of the public servant complained
against or if the identity of the public servant or the complainant is found to
be incorrect or false.
The identity of the complainant will not be revealed without his/her written
consent. Any person negligently or malafidely reveals the identity of the
whistleblower may be sentenced up to three years in prison and also pay a fine
upto Rs. 50,000 (USD 800).
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Knowingly and malafidely making a false complaint will invite a two year
prison term and a fine up to Rs. 30,000 (USD 480).
Notes
The competent authority may make discreet inquires or open inquiry and also
seek the explanation of the public servant complained against and within three
months take any of the following steps:
a)
b)
c)
d)
e)
Recommend any other necessary measure for the purpose of the law.
f)
The competent authority has the powers of a civil court to inquire into
complaints it receives and all proceedings before it will be deemed to be
judicial proceedings. The competent authority may impose a penalty of up to
Rs. 50,000 (USD 800) on the public authority or official for not cooperating
with the inquiry process or refusing to provide reports when required.
The competent authority may set up its own inquiring staff or enlist the
services of the Central Bureau of Investigation or the police or other authorities
to inquire into complaints it receives. The competent authority must ensure
that no whistleblowing public servant is victimised (although what amounts to
victimisation is not defined in the law). If other citizens and organisations
blowing the whistle are victimized the competent authority may pass appropriate
orders for protecting them or avoiding such victimization. The burden of proving
that there was no victimisation of the whistleblower is on the public authority
complained against (reversal of burden of proof).
The provisions are a positive step as they give power to every citizen to reveal
facts relating to corruption, while keeping their identity concealed. If these are
properly implemented, then cases of corruption may surface from every corner
of the country. But if provisions that prevent victimisation are not kept within
limits, it may lead to misuse by malafide people.
Recently the government has amended the provisions in Whistleblowers Act.
The amendment states that whistleblowers either public servants, non-profit
organisations or individuals will not be allowed to reveal any documents
classified under the Official Secrets Act of 1923, even if the purpose is to
disclose acts of corruption, misuse of power or criminal activities. The
amendment to the bill is being done with a view to incorporate necessary
provisions aimed at strengthening safeguards against disclosures which may
prejudicially affect the sovereignty and integrity of the country, security of the
state, etc. The amendments would address concerns relating to national security.
Further the proposed amendments allow whistleblowers to disclose some kinds
of information only if it has been obtained through a Right To Information
query. This includes intellectual property, trade secrets and even information
that can be considered the unwanted invasion of privacy of an individual.
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Identity: The Bill does not allow anonymous complainants. But there are
no clear provisions on what grounds the Vigilance Commission may reveal
the identity of a complainant to the Head of an organisation. Some experts
contend that allowing anonymous reporting provide protection to
whistleblowers while others have expressed concern about difficulty of
investigation and possibility of frivolous complaintsCountries such as the
U.S., U.K., Canada and Australia have some provision to investigate
anonymous complaints, while Italy and Slovakia do not allow anonymous
complaints. However, even countries which allow anonymous complaints
do not provide protection against victimisation if the identity of such a
whistleblower becomes known.
b)
Victimisation: (a) The Bill does not define what constitutes victimisation.
(b) There is no penalty against the public servant who may be victimising
the complainant. (c) This Bill does not provide for witness protection
programme to protect witnesses during investigation and trial. The Law
Commission has recommended guidelines for witness identity protection.
Countries such as the US, Canada, Australia, Germany, Italy and South
Africa have witness protection programmes.
c)
d)
Appeal: The public official may appeal to the High Court against penalty
for revealing identity or obstructing investigation. However, the Bill also
penalises any malafide complaint, but does not specify an appeal process.
Several legal experts have also noted that the proposed law doesnt hold
the CVC accountable for delayed response to a complaint or for failing to
act altogether.
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Notes
Some of the major changes proposed by the 2015 Bill (as passed by Lok
Sabha) relate to provisions such as obtaining the consent of land owners;
conducting an SIA; return of unutilised land; inclusion of private entities; and
commission of offences by the government.
The 2015 Bill exempts five categories of projects from this provision of the
2013 Act. These five categories are: (i) defence, (ii) rural infrastructure, (iii)
affordable housing, (iv) industrial corridors (set up by the government/
government undertakings, up to 1 km on either side of the road/railway), and
(v) infrastructure projects.
The Bill also allows the government to exempt these five categories of projects
from: (i) the requirement of a Social Impact Assessment, and (ii) the limits
that apply for acquisition of irrigated multi-cropped land, through issuing a
notification.
Secondly, the Bill changes the time period after which unutilised, acquired land
must be returned. The 2013 Act states that if land acquired under it remains
unutilised for five years, it must be returned to the original owners or the land
bank. The Bill changes this to state that the period after which unutilised land
will need to be returned will be the later of: (i) five years, or (ii) any period
specified at the time of setting up the project.
The third major change the Bill seeks to make is that it changes the term
private company to private entity. This implies that land may now be
acquired for a proprietorship, partnership, corporation, non-profit organisation,
or other entity, in addition to a private company, if the project serves a public
purpose.
Under the 2013 Act, if an offence is committed by a government department,
the head of the department will be held guilty unless he can show that he had
exercised due diligence to prevent the commission of the offence. The Bill
removes this section. It adds a provision to state that if an offence is committed
by a government employee, he can be prosecuted only with the prior sanction
of the government.
The Bill states that in calculating this time period, any period during which the
proceedings of acquisition were held up: (i) due to a stay order of a court, or
(ii) a period specified in the award of a Tribunal for taking possession, or (iii)
any period where possession has been taken but the compensation is lying
deposited in a court or any account, will not be counted.
The LARR Act, 2013 excluded the acquisition of land for private hospitals
and private educational institutions from its purview. The Bill removes this
restriction.
While the LARR Act, 2013 was applicable for the acquisition of land for
private companies, the Bill changes this to acquisition for private entities. A
private entity is an entity other than a government entity, and could include
a proprietorship, partnership, company, corporation, non-profit organisation, or
other entity under any other law.
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The LARR Act, 2013 stated that if an offence is committed by the government,
the head of the department would be deemed guilty unless he could show that
the offence was committed without his knowledge, or that he had exercised
due diligence to prevent the commission of the offence.
The Bill replaces this provision and states that if an offence is committed by
a government official, he cannot be prosecuted without the prior sanction of
the government.
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