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Polity-I

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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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Ordinance Making Power in India

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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without, going to the Legislature. If the Executive were permitted to continue


the provisions of an ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be
nothing short of usurpation by the Executive of the law-making function of
the Legislature.

Notes

There is thus a repeated and deliberate attempt to push through policy


prerogatives by taking the ordinance route. Sometimes this has been justified
on the grounds of delays by parliamentary committees and at others by giving
reasons that do not seem to meet the necessary to take immediate action test.
To be fair, there have been instances where the use of the ordinance-making
power has seemed more legitimate. One example would be the Ancient
Monuments and Archaeological Sites and Remains (Amendment and Validation)
Ordinance, 2010, which was promulgated to meet a deadline imposed by the
Delhi High Court. Yet another would be the Indian Medical Council
(Amendment) Ordinance, 2011, under which the government dissolved the
Medical Council of India. Yet, the overarching narrative has been that of
misuse, if not outright abuse. One check against this move may have been
strong judicial review of the grounds on which ordinances are promulgated.
The approach of the apex court has, however, been to protect the sanctity of
this power of the executive rather than subject it to strict review.
Conclusion
Our Constitution is based on the principle of separation of powers and the
legislatures primary task is to make laws for good governance. In theory, our
parliamentarians are expected to discuss debate and deliberate on various bills
introduced before them and after suitable changes, enact them into law. As in
many areas, the yawning gap between what the Constitutions contemplates in
theory and what actually happens is most evident in the manner in which our
Parliament functions.
In theory, members take an oath under Schedule III to preserve, protect and
uphold the Constitution. In practice, the oath is modified to paralyse Parliament
by entering the well and disrupting proceedings on a regular basis. Indeed, a
successful Opposition seems to be one that does not allow Parliament to
function. Now, if laws cannot be enacted because Parliament has been made
dysfunctional, an ordinance is the only route open to a government. Similarly,
the ordinance route is resorted to when the ruling party does not have a
majority in the Rajya Sabha.
If members stop paralysing Parliament, the ruling party will have no excuse for
promulgating an ordinance except in a grave emergency. In the end, our
Constitution confers different types of power expected to be used in specific
situations. The founding fathers expressed the fond hope that it would be
sparingly used and our elected representatives must honour the trust reposed
in them.

Frequent Disruptions of Parliament and its


Impact
The broad outline of parliamentary democracy is widely known. People elect
representatives to parliament. These members of parliament debate the
appropriateness of legislation to accomplish societal goals. For that, provision
of debate has been made so that useful legislation that has popular support can

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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.

It prevents action on important legislation.

It forces the adoption of critical legislation without debate.

It has empowered parliamentarians who lack appropriate skills.

It undermines the credibility of party leaders.

It undermines respect for the MPs and MLAs.

Methods for strengthening institutional mechanisms within Parliament


a)

Any motion or discussion has to be taken up if a certain number of MPs


gives a written notice. The no-confidence motion requires just 50 MPs
(slightly less than 10% of the strength of the House) to be admitted. The
threshold can be increased, and suitable thresholds fixed for discussions
without a vote and voting motions. For example, there could be a new
rule for discussion if a certain percentage of the strength of the House
(say 20%) asks for it, and a voting motion if a certain percentage of MPs
(say 30%) gives a written notice.

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)

Public participation and feedback in the pre-legislative process would


strengthen a draft Bill by ensuring that differences in viewpoints are
addressed before its introduction. This would make it easier for
Parliamentarians to resolve conflicting objectives while considering it in
Parliament. In its 2002 Report, the National Commission to Review the
Working of the Constitution also recommended that, all major social

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and economic legislation should be circulated for public discussion to


professional bodies, business organisations, trade unions, academics and
other interested persons.
d)

A fixed number of parliamentary sittings per year should be declared in


calendar.

e)

The Parliamentary Standing committee system should be strengthened by


having a higher attendance requirement and by the induction of experts
in an advisory capacity.

Importance of Post of Governor


The federal structure of Indian democracy ensures that States, like the Centre,
have a parliamentary form of government headed by the Governor.
The Governor of a State plays a multifaceted role. Under the Constitution,
Governor is expected to play a double role, as the head of the State and as the
representative of the Centre. In the normal circumstances, he acts as a vital
link between the Central and the State Government.
Though the Central Government has been kept strong in the Indian federal set
up by providing more powers under the Constitution. Moreover, the procedure
of appointment and the removal of the Governor, also make the Centre strong
because his term of office is not secure and he acts only on the directions of
the Centre.
But the post of Governor is not merely of symbolic importance. He plays a
crucial role in smooth functioning of federal democracy. Fixed tenure for the
Governor ensures continuity in the State administration as, even though Chief
Ministers may come and go, the Governor remains for a period of five years.
Unfortunately the current position of law permits the Centre to dismiss a
Governor without even assigning any reasons.
Constituent assembly debate over the Post of Governor
The post of Governor is not an elected one unlike the President who is indirectly
elected. The Governor is appointed by the President (Art. 155) and holds
office for five years subject to the pleasure of the President.
There were many debates about the election of the Governor. Some people
wanted popularly elected Governors but some were dead against this proposal.
Ultimately the drafting committee of the Constitution decided that the Governor
would be appointed by the President. As a result, different parties manipulated
the appointment of the Governor on the one hand, and on the other, Governors
started following the command from the Central Government in order to
make the Ministers happy at the Centre in anticipation of gaining higher
political positions.
In addition to appointment, the makers of the Constitution also decided to
keep the discretionary powers intact despite many objections. Though the
framers of the Constitution speculated that the Governor would use his or her
rational capacity while using the discretionary powers, instead of performing
the constitutional obligations the Governors started playing a dictatorial role to
please their political bosses at the Centre.
Thus, we see that the framers of the Constitution endowed the Governor with
certain powers with the hope that the Governor would use these powers to

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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

Sarkaria Commission recommendations related post to Governor


The Sarkaria Commission submitted its report to the Union Government. It
focused upon the role of the Governor and gave the following recommendations
regarding the Governor:
A. On the appointment of the Governor:
1. He should be a man of some eminence in some field.
2. He should not belong to the State where he has to serve as the Governor.
3. He should be a detached figure with little record of participation in the
local politics of the State.
4. He should be a person who has not taken too great a part in politics
generally, particularly in the recent past.
5. Preference should continue to be given to the minority groups as hitherto.
6. It is desirable that a politician from the ruling party at the Centre should
not be made the Governor of a State run by another party or a coalition
of parties.
7. Article 155 of the Constitution should be suitably amended to ensure
effective consultation with the Chief Minister of a State while appointing
a Governor in that State.
8.

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.

The above-mentioned recommendations show that the Sarkaria Commission


has made many suggestions regarding the appointment of the Governor but it
has failed to show how these recommendations can be implemented. Therefore,
the matter regarding the appointment of the Governor still lies in the hands
of Central Government.
B.

On Discretionary Powers of the Governor

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.

He should be eminent in some walk of life;

2.

He should be a person from outside the State;

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

On Governors discretionary powers

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.

The party or combination of parties which commands the widest support


in the Legislative Assembly should be called upon to form the
Government.

2.

If there is a pre-poll alliance or coalition, it should be treated as one


political party and if such coalition obtains a majority, the leader of such
coalition shall be called by the Governor to form the Government.

3.

In case no party or pre-poll coalition has a clear majority, the Governor


should select the Chief Minister in the order of preference indicated
below:
(a) The group of parties which had pre-poll alliance commanding the
largest number.

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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.

Provisions Related to Removal of Governor


In the Indian Republic, the state Governor stands at the head of the Executive
power of any state in India, just like the Presidentwho is the head of the
executive power in the Union. The Governor is the nominal head of a state,
unlike the Chief Minister who is the real head of a state in India. In other
words, although all executive actions of an Indian state are taken in the name
of the Governor, and all executive powers are vested in the Governor, in
reality, the Governor merely gives his consent to the various executive actions.
As per Article 155 and Article 156 of the Constitution, a Governor of a state
is an appointee of the President, and he or sheholds office during the pleasure
of the President. If a Governor continues to enjoy the pleasure of the
President, he or she can be in office for a term of five years. Because the
President is bound to acton the aid and advice of the Council of Ministersunder
Article 74 of the Constitution, in effect it is the central government that
appoints and removes the Governors. Pleasure of the President merely refers
to this will and wish of the central government.
The Pleasure Doctrine has its origin in English law, with reference to the tenure
of public servants under the Crown. There is a distinction between the doctrine
of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a
democracy governed by rule of law. In a nineteenth century feudal set-up
unfettered power and discretion of the Crown was not an alien concept.
However, in a democracy governed by Rule of Law, where arbitrariness in any
form is eschewed, no Government or Authority has the right to do what it
pleases. The doctrine of pleasure does not mean a licence to act arbitrarily,
capriciously or whimsically. It is presumed that discretionary powers conferred
in absolute and unfettered terms on any public authority will necessarily and
obviously be exercised reasonably and for public good.
In a constitutional set up, when an office is held during the pleasure of any
Authority, and if no limitations or restrictions are placed on the at pleasure

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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

Contradictory nature of Article 156


Literally within the domain of Article 156(1) of the Constitution, Governor
is to hold office during pleasure of the President. But within the ambit of
clause 3 of this section, it is specifically enshrined that subject to the forgoing
provisions of this section, the Governor shall hold office for a term of five
years. Thus intentionally and deliberately, clause 3 of Article 156 has been
eclipsed by clause 1 of Article 156 of the constitution. The framers of the
Constitution have locked the modus operandi of removal of the Governor in
this Article of contradictory effect. It is significant to mention here that Article
61 of the Constitution provides the method of impeachment for the removal
of the President, but the Constitution nowhere does lay down the process of
removing the Governor of the State except by the central authority. In other
words the Centre Government absolutely enjoys the power for the removal of
the State Governor at any time, even without assigning any reason. Obviously,
the Centre Government is in a position to keep the Governor, always under
the influence.
In fact Article 156 of the Constitution is not in consonance with the true spirit
of the Constitution. In the United States, the Governor of a State can be
removed by the process of impeachment by the State legislative body. Some
State Constitutions provide the recalling method of a Governor by popular
vote. In Canada, the Lieutenant
Governor of the Province under Article 5 of the British North American Act
1867 may be removed by the Governor General.
Thus, the issue of the appointment and removal of the Governor is the sole
right of the Union Government and States have no voice on this issue. It is
very strange to note that Constitution, on the one hand, has made the Governor
representative of the Centre and has granted him some discretionary powers,
but on the other hand the Constitution has kept him completely free from the
elected representatives of the State. There is no effective check on the powers
of the Governor by the State which can prevent him from misusing his authority.
The state legislature, thus, has been deprived of the right of removing a
Governor.
Politicalisation of Article 156
A constitutional authority like that of Governor in India can enjoy the perks
and a liveried status only during pleasure of the President as per the
contemplation of Article 156 of the Constitution. Presidents displeasure and
that too in absence of any safeguard, can kick the Governor out of the palatial
Raj Bhawan as and when desired by the Central Government. In the presence
of confronting provisions of the Constitution relating to his term of office, the

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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.

However, this power cannot be exercised in an arbitrary, capricious or


unreasonable manner. The power of removing Governors should only be
exercised in rare and exceptional circumstances for valid and compelling
reasons.

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.

A decision to remove a Governor can be challenged in a court of law. In


such cases, first the petitioner will have to make a prima facie case of
arbitrariness or bad faith on part of the central government. If a prima
facie case is established, the court can require the central government to
produce the materials on the basis of which the decision was made in
order to verify the presence of compelling reasons.

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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Recommendations of Various Commissions

Notes

Three important commissions have examined this issue.


TheSarkaria Commission (1988)recommended that Governors must not be
removed before completion of their five year tenure, except in rare and
compelling circumstances. This was meant to provide Governors with a
measure of security of tenure, so that they could carry out their duties without
fear or favour. If such rare and compelling circumstances did exist, the
Commission said that the procedure of removal must allow the Governors an
opportunity to explain their conduct, and the central government must give
fair consideration to such explanation. It was further recommended that
Governors should be informed of the grounds of their removal.
TheVenkatachaliah Commission (2002)similarly recommended that ordinarily
Governors should be allowed to complete their five year term. If they have
to be removed before completion of their term, the central government should
do so only after consultation with the Chief Minister.
ThePunchhi Commission (2010)suggested that the phrase during the pleasure
of the President should be deleted from the Constitution, because a Governor
should not be removed at the will of the central government; instead he or she
should be removed only by a resolution of the state legislature.
The above recommendations however were never made into law by Parliament.
Therefore, they are not binding on the central government.
However the present scenario demands that the grounds for the removal of the
Governor be expressively castigated in the Constitution and the removal process
should be on the same grounds and in the same manner as the removal process
of a judge of the Supreme Court or the High Court. These constitutional
reforms are necessary to strengthen the role of the Governor and to make it
more effective and meaningful. The observations of Pandit Jawaharlal
Nehru, in this context, are worth quoting here:
We have made a Constitution and we should abide by the Constitution,
nevertheless, let it not be said that that Constitution, every part of it, every
chapter and corner of it, is something that is so sacrosanct that it cannot be
changed even if the needs of the Country or the Nation so required.
Undoubtedly, it can be changed whenever necessary, not lightly but after full
thought, if it is thought that the part of the Constitution comes in the way of
the nations progress.

Scrapping of GOMs and EGOMs


The new NDA government of India has abolished all the 30 ministerial groups
(nine empowered groups of ministers (EGOMs) and 21 groups of ministers
(GOMs)), which were set up to take decisions on various matters before
bringing them for the cabinets consideration. In this write up we are discussing
about the meaning of GoMs & EGoMs and impact of its scrapping.
What are GoMs and eGoMs?
GoMs were small groups of ministers that meet to resolve conflicting views
within the council of ministers. Decisions taken by the GoMs had to be
approved by the cabinet. This tradition was started by the Atal Bihari Vajpayeeled NDA government. The UPA government took this practice a step further
by setting up eGoMs. Recommendations by GoMs had to be approved by

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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

Ensure greater accountability.

Expedite the process of decision-making.

Ensure greater empowerment of ministries and department.

The concept was also criticized for diluting the doctrine of Cabinet
responsibility.

PM will have the last word on policy-making.

The move would lead to a better sense of transparency in governmental


functioning, fast- track decision-making processes and increase
accountability.

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

The DSPE renamed as Central Bureau of Investigation (CBI) in 1963. Initially


the offences that were notified by the Central Government related only to
corruption by Central Govt. servants. In due course, with the setting up of a
large number of public sector undertakings, the employees of these undertakings
were also brought under CBI purview. Similarly, with the nationalization of the
banks in 1969, the Public Sector Banks and their employees also came within
the ambit of the CBI.
As the CBI, over the years, established a reputation for impartiality and
competence, demands were made on it to take up investigation of more cases
of conventional crime such as murder, kidnapping, terrorist crime, etc. Apart
from this, even the Supreme Court and the various High Courts of the country
also started entrusting such cases for investigation to the CBI on petitions filed
by aggrieved parties.
It was therefore decided in 1987 to constitute two investigation divisions in the
CBI, namely, Anti-Corruption Division and Special Crimes Division, the latter
dealing with cases of conventional crime, besides economic offences.
Even though the CBI is empowered to investigate all offences notified by the
Central Government under Section 3 of the DSPE Act, 1946, it does not take
up all such cases keeping in view its limited resources and its powers being
concurrent and coextensive with those of the State Police Forces, which if
exercised without coordination with the State Police, might lead to conflict and
duplication of efforts. To avoid such duplication, an administrative arrangement
has been arrived at by CBI with the State Police Forces, according to which:
a)

The cases, which are substantially and essentially against Central


Government employees or concerning affairs of the Central Government,
shall be investigated by CBI although certain employees of the State
Government may also be involved. The State Police or State AntiCorruption Bureau will render necessary assistance to the CBI, during
investigation and prosecution of such cases.

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.

About adequate number of qualified nyayadhikaries- About the


appointment ofnyaadhikaries, section -6(2) of the Act provides for adequate
representation from The SC, ST, Women and Other categories should be

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maintained, but, from the trend of employment in J.M.F.C of various


States it is found that sufficient number of candidates for each category
may notbe available to beappointed for these posts. Thus, it may lead to
vacancy of posts to defeat the object of the Act.

Regarding constitution of the courts- It is mentioned that Gram Nyayalaya


is the lowest court ofsubordinate judiciary and integral part of existing
judiciary. It is a court of JMFC, the magistrate/presiding officer of this
court will be called as Nyayadhikari. But, the court structure provided in
Cr.P.C does not provide for either Gram Nyayalaya or Nyayadhikari,
which may create confusion in the powers ofthe court.

Regarding the court system- It is mentioned that Gram Nyayalaya is to


conduct the cases in close proximity of the cause of action and it will be
mobile court and the procedure is of aderverserial system of justice and
a time frame for judgment is also provided in it. Thus the court must go
to the place of cause of action at the request of the aggrieved party to
decide the matter. For the time frame, it may not wait for the parties or
witness to prove the particular fact in issue and pass order. The question
arises, if the opposite party or all the necessary parties in case of civil
disputes are not available beforethat mobile courtwithin the stipulated
time or if they want to avoid the court, and the court make an ex-parte
decree orit give the judgment fromthefacts andcircumstantial evidences
it has. Such a decision cannot give justice to the effected party, there may
also be violation of naturaljustice to them and for which they may go to
regular court for enforcement of their right. In such case the object of the
Act to reduce the burden of cases in courts will be defeated.

In the matter of summary trial and concept of Natural Justice- It is


provided in the Act that, all proceedingsin criminal caseshave been made
into summary one. Two important aspects of summary trial are that
charges are not framed and only the gist of the evidence is recorded .what
could begained if a full recording of evidence is given up in favor of
summary recording if not lip service to the question of speedy disposal.
But, by making summary trial, one is giving more room for the Judge to
exercise his discretion. Further, concept of Natural Justice provides for
fair trial and protection from reasonable bias.In criminal casethe duty of
the Stateis to prove the case beyond all reasonable doubts. By summary
trial it may amount to not providing sufficient opportunity to the accused
for defense and discretion of Judge may turn to arbitrary.

Lastly, regarding the duties of Nyayadhikari it is mentioned that the


Nyayadhikri has to assist, persuade and conciliate the parties apart
from their adjudicative function at the first instance of the case- But, If
the Nyayadhikaries are to assist, persuade, conciliate the parties, even
with the assistance of the conciliators then they have to be exposed with
the individual litigants in a particular litigation and in case the mediation
or conciliation of that particular litigation has failed and the aggrieved
parties come for adjudication of the matter in the same court. This may
lead to a situation offavoritism or bias.

Notes

The suggestions to improve functioning of Gram Nyalayas


Regarding the number of courts, as it is an early stage of constitution of these
new courts, the Government may consider the population court ratio from
practical point of view to form as many courts to achieve the objective of the

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Act. Similarly, asthe courtsareto be opened in phased manner, so the rule


regarding reservation may not be strictly adhered but sufficient steps should be
taken to empower the category students/advocates to qualify for the post.
This can be done by (1) Assisting different Law colleges to organize remedial
coursesfor these students. (2) Creating awareness among the advocates to join
suchjob,moreover(3) creating a sound legal education system throughout the
country.
Regarding the anomalies in constitution of courts Cr.P.C is to be suitably
amended to insert GramNyayalaya and Nyayadhikari as a cadre of
lowerjudiciary with defined power.
Regarding the court system the court must adopt the provision of sufficient
and reasonable notice to all parties and must havethe power to enforce
attendance oftheparties before the mobilecourt.
Regarding the summary procedure and maintenance of natural justice, strict
guideline for flexibility of recording evidence and use of discretionary power
should be prescribed.
And lastly, about the conciliation, mediation to be conducted by the judgesmore ethical standard moral value should be maintained by the Nyayadhikaries
in their work life, especially, while doing some Para judicial act like conciliation
etc. It would be better, if the judges are not involved in conciliation directly
and do it through the help of gram sabha of that particular locality or conciliators
appointed for the purpose and accept only the conciliators report for giving
order in case of a successful conciliation among the parties.

Analysis of Lok Adalat


The concept of Lok Adalat is an innovative Indian contribution to the world
jurisprudence. The introduction of Lok Adalats added a new chapter to the
justice dispensation system of this country and succeeded in providing a
supplementary forum to the victims for satisfactory settlement of their disputes.
This system is based on Gandhian principles.
The advent of Legal Services Authorities Act, 1987 gave a statutory status to
Lok Adalats, pursuant to the constitutional mandate in Article 39-A of the
Constitution of India, contains various provisions for settlement of disputes
through Lok Adalat. It is an Act to constitute legal services authorities to
provide free and competent legal services to the weaker sections of the society
to ensure that opportunities for securing justice are not denied to any citizen
by reason of economic or other disabilities, and to organize Lok Adalats to
secure that the operation of the legal system promotes justice on a basis of
equal opportunity. Even before the enforcement of the Act, the concept of
Lok Adalat has been getting wide acceptance as Peoples Courts as the very
name signifies. Settlement of disputes at the hands of Panchayat Heads or
tribal heads was in vogue since ancient times. When statutory recognition had
been given to Lok Adalat, it was specifically provided that the award passed
by the Lok Adalat formulating the terms of compromise will have the force
of decree of a court which can be executed as a civil court decree. The
evolution of movement called Lok Adalat was a part of the strategy to relieve
heavy burden on the Courts with pending cases and to give relief to the
litigants who were in a queue to get justice. It contains various provisions for
settlement of disputes through Lok Adalat.

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Salient features of Lok adalat:


1)

It is based on settlement or compromise reached through systematic


negotiations

2)

It is a win win system where all the parties to the dispute have something
to gain.

3)

It is one among the Alternate Dispute Resolution (ADR) systems. It is an


alternative to Judicial Justice

4)

It is economical No court fee is payable. If any court fee is paid, it will


be refunded.

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)

Lok Adalat is deemed to be civil court for certain purposes.

7)

Lok Adalat is having certain powers of a civil court.

8)

The award passed by the Lok Adalat is deemed to be a decree of a civil


court.

9)

An award passed by the Lok Adalat is final and no appeal is maintainable


from it.

Notes

10) An award passed by the Lok Adalat can be executed in a court.


11) The award can be passed by Lok Adalat, only after obtaining the assent
of all the parties to dispute.
12) Code of Civil Procedure and Indian Evidence Act are not applicable to
the proceedings of Lok Adalat.
13) A Permanent Lok Adalat can pass an award on merits, even without the
consent of parties. Such an award is final and binding. From that no
appeal is possible.
14) The appearance of lawyers on behalf of the parties, at the Lok Adalat is
not barred. (Regulation 39 of theKeralaStateLegal Services Authority
Regulations, 1998.
Lok Adalats have competence to deal with a number of cases like:

Compoundable civil, revenue and criminal cases.

Motor accident compensation claims cases

Partition Claims

Damages Cases

Matrimonial and family disputes

Mutation of lands case

Land Pattas cases

Bonded Labour cases

Land acquisition disputes

Banks unpaid loan cases

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Arrears of retirement benefits cases

Family Court cases

Cases which are not sub-judice

Benefits of Lok Adalat


The benefits that litigants derive through the Lok Adalats are many.
a)

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)

Secondly, there is no strict application of the procedural laws and the


Evidence Act while assessing the merits of the claim by the Lok Adalat.
The parties to the disputes though represented by their advocate can
interact with the Lok Adalat judge directly and explain their stand in the
dispute and the reasons therefore, which is not possible in a regular court
of law.

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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of Judges disproportionate to the cases filed and, hence, to alleviate the


accumulation of cases, the Lok Adalat is the need of the day.

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.

NALSA: Structure & Analysis


The National Legal Services Authority (NALSA) has been constituted under
the Legal Services Authorities Act, 1987 to provide free Legal Services to the
weaker sections of the society and to organize Lok Adalats for amicable
settlement of disputes. Actually, Article 39A of the Constitution of India
provides for free legal aid to the poor and weaker sections of the society and
ensures justice for all. Articles 14 and 22(1) of the Constitution also make it
obligatory for the State to ensure equality before law and a legal system which
promotes justice on the basis of equal opportunity to all. In 1987, the Legal
Services Authorities Act was enacted by the Parliament which came into force
on 9th November, 1995 to establish a nationwide uniform network for providing
free and competent legal services to the weaker sections of the society on the
basis of equal opportunity.
Advantages of the Movement:
It has helped overcome three impediments:
1)

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)

Organizational Impediments (Diffused Interests) - to facilitate collective


action, since the individual was too small to play a significant role/effect
a change. According to Justice Krishna Iyer, another reason for justice on
the streets, rather than the courts is that the constitution with its mandate
of socio-economic rights is in contradiction with the colonial Justice and
law hangover. These are not attuned to the Indian social realities and the
mystiques of lacunose legalese and processual pyramids with sophisticated
rules, along with slow-motion justice and high priced legal services has
led to victimization of the common man.

3)

Procedural Obstacles (Informal Justice)- to overcome the current,


traditional procedures through alternate dispute resolutions, specialized or
small claims courts such as the Family Courts or the Lok Adalats etc.

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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

One of the problems faced by legal services institutions is their inability to


reach out to the common people. It is in this context that the National Legal
Services Authority (NALSA) has come up with the idea of para-legal volunteers
to bridge the gap between the common person and legal services institutions.

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The scheme seeks to utilise community-based volunteers selected from villages


and other localities to provide basic legal services to the common people.
Educated persons with commitment to social service and with a record of
good character are selected. The volunteers are trained by district legal services
authorities. The training equips them to identify the law-related needs of the
marginalised in their locality. Such needs include assistance to secure legal
rights, benefits and actionable entitlements under different government schemes
that are denied to them. Coming as they do from the same locality, they are
in a better position to identify those who need assistance and bring them to
the nearest legal services institutions to solve their problems within the
framework of law. They can assist disempowered people to get their entitlements
from government offices where ordinary people often face hassles on account
of bureaucratic lethargy and apathy.
b)

Notes

Legal Aid Clinics in Villages

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)

Free and Competent Legal Services

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)

Legal Aid Camps:

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)

Student Legal Aid Clinics

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)

Legal Aid Clinics in Jails

Prisoners are doubly handicapped persons. Most of them belong to lower


strata of the society, both socially and economically. Secondly, they are
incommunicado, walled-off from the world. But they being citizens of India are
entitled to protect their rights enshrined in Article 21 of the Constitution and
its variants. Therefore, it is highly essential that prisoners also are given legal
aid especially in matters relating to defending or prosecuting their cases and
appeals and also legal problems they and their family might face on account
of their being behind the bars.
The legal aid clinics in Jails shall be run under the District Legal Services
Authorities. Panel of lawyers selected in consultation with the local bar
association may be deployed for manning the legal aid clinics in prisons. Services
of sociologists and psychiatrists also may be availed of while providing legal
aid to the prisoners.
The applications, appeals and petitions from the prisoners may be forwarded
to the appropriate authorities and courts as expeditiously as possible. Their
pleas in relation to the remission, parole etc also may be assisted and attended
to by the legal aid counsel deputed to such clinics in Jails.

Provision of NOTA in Elections


Democracy being the basic feature of our constitutional set up, there can be
no two opinions that free and fair elections would alone guarantee the growth
of a healthy democracy in the country. The Fair denotes equal opportunity
to all people. Universal adult suffrage conferred on the citizens of India by the
Constitution has made it possible for these millions of individual voters to go
to the polls and thus participate in the governance of our country.

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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.

Right to secrecy is an integral part of a free and fair election. It is a central


right of an elector to cast his vote without fear of reprisal, duress or
coercion as per Article 21 of the Indian Constitution. Protection of electors
identity and affording secrecy is therefore integral to free and fair elections
and an arbitrary distinction between the voter who casts his vote and the
voter who does not cast his vote is violative of Article 14, Article 19(1)(a)
and Article 21 of the Indian Constitution. Secrecy of the voters is necessary
in order to maintain the purity of the electoral system. Every voter has
a right to vote in a free and fair manner and not disclose to any person
how he has voted in direct elections to Lok Sabha or State Legislatures,
maintenance of secrecy is a must and is insisted upon all over the world
in democracies where direct elections are involved to ensure that a voter
casts his vote without any fear of being victimized if his vote is disclosed.

Positive features in NOTA:

Voters participation is an essence of democracy. Introducing a NOTA


button can increase the public participation in an electoral process. The
voters participation in the election is indeed the participation in the
democracy itself. Non-participation causes frustration and disinterest, which
is not a healthy sign of a growing democracy like India.

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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.

Furthermore, a provision of negative voting would be in the interest of


promoting democracy as it would send clear signals to political parties and
their candidates as to what the electorate thinks about them.

Negative features in NOTA:


As per the provisions of clause (a) of Rule 64 of Conduct of Elections Rules,
1961, read with Section 65 of the Representation of the People Act, 1951, the
candidate who has polled the largest number of valid votes is to be declared
elected by the Returning Officer. NOTA do not mean rejection. That may
sound self-defeating to the whole point of NOTA but according to Indian
democracy the rule of first past the post is declared the winner. Thus, if out
of total 10,000 votes, 9999 voters elect NOTA option and just one candidate
gets even a single vote, then the latter wins from that constituency.
There has been a debate for re-election to be held in case the total number of
NOTA votes crosses a certain percentage. However, this has no legal standing
currently and hence NOTA is merely cosmetic in nature.
NOTA can only work only when it is paired with Right To Recall option where
voters can recall candidates they have elected. This will instill fear in candidates
to do well in office and also lead to giving NOTA importance because it acts
as a pre-cursor to public displeasure. Currently, Right To Recall does not exist
in the electoral process in the country, which only weakens NOTA.
Recommendations for improving NOTA
According to Association for Democratic Reforms (ADR) and National Election
Watch (NEW) following provisions has been recommended with respect to
the counting of votes as registered against the NOTA in a particular
constituency:a)

Votes cast for the none-of-the-above option should also be counted.

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)

In the following elections, with fresh candidates and with a none-of-the


above option, only that candidate should be declared elected who gets at
least 50 percent + one of the votes cast.

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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.

Reforms needed in Criminal Justice System


Criminal Justice refers to the agencies of government charged with enforcing
law, adjudicating crime, and correcting criminal conduct. The criminal justice
system is essentially an instrument of social control. Society considers some
behaviours so dangerous and destructive that it either strictly controls their
occurrence or outlaws them outright. It is the job of the agencies of justice to
prevent these behaviours by apprehending and punishing transgressors or
deterring their future occurrence. Although society maintains other forms of
social control, such as the family, school, and church, they are designed to deal
with moral, not legal, misbehaviour. Only the criminal justice system has the
power to control crime and punish criminals.
A strong and effective criminal justice system is a fundamental requirement of
the Rule of Law. The criminal justice system comprises the police (investigation),
the prosecutor (prosecution), the courts (trial) and the prison (punishment and
reforms). The role of the police is, no doubt, important in dealing with imminent
threats to peace and order as well as in tackling violence when it erupts.
However, for sustaining peace and order in society on a long term basis, the
role of other wings of the criminal justice system is even more important. It
is the criminal justice system which protects a law abiding citizen and deters
a potential law breaker. The essence of an efficient criminal justice system is
that the trial of an accused should be swift and punishment for a criminal
should be certain and deterrent.
The criminal law consists of the substantive law contained in the Indian Penal
Code (IPC) as well as the special and local laws enacted by the central and
state legislatures from time to time and the procedural law laid down mainly
in the Code of Criminal Procedure, 1973 (Cr.P.C) and the Indian Evidence
Act, 1872. These three major Acts, i.e. the IPC, Cr.P.C and the Indian Evidence
Act were enacted by the British during the second half of the 19th century.
The IPC defines different types of crimes and prescribes appropriate punishment
for offences. Offences are classified under different categories- offences against
state, armed forces, public order, public justice, public health, safety, morals,
human body, property and offences relating to elections, coins, government
stamps, weights and measures, religion, documents and property marks, marriage
and defamation.
Besides IPC, the local and special laws (SLL) also contain penal provisions.
These laws have been enacted from time to time mainly to deal with new
emerging forms of crime and to protect the interests of the weaker sections
of society.
Whereas the procedural law describes the procedure to be followed in a criminal
case from registration, investigation and to its final disposal after a proper trial
by a court of law. The police are not empowered to take cognizance of all

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penal offences. Criminal law makes a distinction between two categories of


offences- cognizable and non-cognizable.
Flaws in the Criminal Justice System
There is a general perception that one can commit an offence with impunity.
The proliferation of crime has generated a feeling that criminal activity has
become a high return and low risk activity and thus a profitable venture.
Enforcement of even simple civic laws is so poor that it gives rise to the
Broken Window Syndrome. For a victim, it is an uphill task to get justice. In
the first instance, it is difficult to get an FIR registered. Even after the FIR is
registered, investigation proceeds in a casual and an unprofessional manner.
Once the case is charge-sheeted it may take several years for the conclusion
of the trial. Making repeated visits to the court is usually an unpleasant
experience for the victim and the witnesses. During trial, witnesses often resile
from their original statements. Prosecution is often ineffective because of lack
of coordination with investigation. The net result in many cases is the acquittal
of the culprit who had actually committed the crime. This, apart from
emboldening the accused, also leads to cynicism in the minds of law abiding
citizens. The recent public outcry against the acquittal of the accused in some
high profile cases is a pointer to this deeper malaise. Immediate restoration of
the peoples faith in the criminal justice system is therefore vital in the interests
of public order and a just society.
Suggestions
Criminal Justice System in India requires a strong second look.
The criminal investigation system needs higher standards of professionalism
and it should be provided adequate logistic and technological support. Serious
offences should be classified for purpose of specialized investigation by specially
selected, trained and experienced investigators. They should not be burdened
with other duties like security, maintenance of law and order etc., and should
be entrusted exclusively with investigation of serious offences.
The number of Forensic Science Institutions with modern technologies such as
DNA fingerprinting technology should be enhanced. The system of pleabargaining (as recommended by the Law Commission of India) should be
introduced as part of the process of decriminalization.
The greatest asset of the police in investigation of crimes and maintenance of
law and order is the confidence of the people. Today, such public confidence
is at the lowest ebb. The police are increasingly losing the benefit of this asset
of public confidence. Hard intelligence in investigations comes from public
cooperation. If police are seen as violators of law themselves or if they abuse
their powers for intimidation and extortion, public develop an attitude of
revulsion and the onerous duties and responsibilities that the police shoulder
become more onerous and difficult.
In order that citizens confidence in the police administration is enhanced, the
police administration in the districts should periodically review the statistics of
all the arrests made by the police in the district and see as to in how many of
the cases in which arrests were made culminated in the filing of charge-sheets
in the court and how many of the arrests were ultimately turned out to be
unnecessary. This review will check the tendency of unnecessary arrests. Some
statistics indicate that in some districts in the country, nearly 80% of the
arrests were made in respect of bailable offences.

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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

Malinath Committee Report on Criminal Justice System


In a groundbreaking report on reforms in Indias criminal justice system, a
committee headed by Justice V S Malimath has recommended several farreaching changes.
Among the reforms suggested are that the accused should not be presumed
innocent till proven guilty beyond reasonable doubt. And, that a statement
made by him before the police should be admissible in court as evidence.
Attempting to make things easier for the prosecution, the committee stated
that it should be enough for the accused to be proven guilty if the evidence
against him is clear and convincing. The standard of proof beyond
reasonable doubt places an unreasonable burden on the prosecution and
should be done away with.
The court will have the authority to question the accused during the trial, and
his silence could be adversely construed. This will be implemented without
affecting the right of the accused not to be a witness against himself.
It recommended making the confession statement of a witness, recorded by an
official of the rank of SP or above with simultaneous audio/video recording,
admissible in court.
Another recommendation is the enactment of a federal law to deal effectively
with organised crime and terrorism.
The committee also recommended that the constitution of permanent criminal
benches in high courts and the Supreme Court be presided over by specialised
judges.
Also, to ensure discipline and a better code of conduct among judges, it has
suggested that the chief justice be conferred with certain special powers.
For the first time, the committee recognised the rights of victims and witnesses.
It suggested a witness protection programme and also the right of the victim
to participate in the trial for offences punishable with imprisonment of seven
years and above. The victim too should have the right to protection and
compensation.

Issues related to AFSPA


The Armed Forces Special Powers Act (AFSPA) is an act empowering armed
forces to deal effectively in disturbed areas. Any area which is declared
disturbed under disturbed areas act enables armed forces to resort to the
provisions of AFSPA. The choice of declaring any area as disturbed vests
both with state and central government. After an area comes under the ambit
of AFSPA, any commissioned officer, warrant officer, non-commissioned officer
or another person of equivalent rank can use force for a variety of reasons
while still being immune to the prosecution.
The act was passed on 11 September 1958 by the parliament of India to
provide special legal security to the armed forces carrying out operations in the
troubled areas of Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram,
Nagaland, Tripura.(seven sisters). However, in 1990 the act was extended to

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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

Violation of Constitutional Rights

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)

Violation of Human Rights

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)

Declaration of Disturbed Area

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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military personnel around them at all times. Structural violence, as a result,


remains rampant. The constant presence of military personal in the region
takes away normalcy from its population. Due to the existence of AFSPA,
these allegedly disturbed areas within Kashmir always remain in a state of
emergency.
d)

Violates Indian Criminal Procedure Code (CrPC)

The provisions are:


(i)

Use of Minimum Force:The Criminal Procedure Codelays out the


procedures that police is to follow for carrying out arrests and searches.
CrPC also advocates use of minimum force for dispersing an unlawful
assembly. No such provisions exist in any sections of Armed Forces Special
Powers Act.

(ii) Obsolute Powers to All Ranks less Sepoy: An executive magistrate or


police officer not below the rank of a sub inspector is authorised to
disperse any unlawful assembly. In Armed Forces Special Powers Act, all
members of the armed forces less a sepoy have been vested with such
powers.
(iii) CrPC does not advocate force to the extent of causing death unless they
are accused of an offence punishable by death. The same rule does not
pertain to Armed Forces Special Powers Act.
e)

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:

International Covenant on Civil and Political Rights (ICCPR): Following


the ICCPR some of the rights of citizens e.g. right to life, protection
against torture etc continue to be non derogable even during state of
emergencies. It is alleged that AFSPA outrightly violates both these
derogable and non derogable rights. ICCPR also guarantees that a person
who is arrested has the right to be aware of the reason for his arrest. This
provision has also been violated by the AFSPA as there is no obligation
towards informing the person of reasons for arrest.

International Customary Law: The AFSPA ,as per UN violates the UN


Code of Conduct for Law Enforcing Officials in terms of use of minimum
force to the extent of causing death in addition to similar provisions
present in most international laws.

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

In a democracy, this requirement of previous sanction should have no place.


Section 6 could thus be amended to read: No prosecution shall be instituted
against any person in respect of anything done or purported to be done in
exercise of the powers conferred by this Act where the Central government
provides reasons in writing and the competent court upholds the legal validity
of these reasons.
Such a provision would prevent good officers from being prosecuted for killings
which result from acts of good faith while allowing the bad apples to be
prosecuted for their crimes. The government would still have the right to
intervene on behalf of a soldier who has committed an illegal act. But this
would require a Minister to take personal responsibility for a decision that
would, after all, be tantamount to denying justice to the victims family.
g)

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)

Reduces Professionalism in Army

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:

The use of term Special Power in the name of AFSPA is often


misunderstood and misinterpreted. There are actually no arbitrary powers

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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.

Even in an disturbed area, the civil authority is supreme and continues to


function. This act does not displace civil power of the state by the armed
forces. The public continue to enjoy all rights and privileges guaranteed to
them by the constitution without any hindrance subject to certain security
limitations to facilitate conduct of operations by SF.

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.

Tripura withdraws AFSPA


The Tripura government has decided to lift the Armed Forces Special Powers
Act (AFSPA) from the state where the controversial law was in effect for the
last 18 years to tackle militancy.
In the past five years, Tripura has seen a rapid decline in militancy with hundreds
of militants surrendering and joining the mainstream.
AFSPA has been in force in 30 police station areas in Tripura. It was fully
operational in 26 police station areas and partially in four. The law was first
enforced in Tripura in February 1997, when militancy was at its peak and
militants could easily use the 854 km long border with Bangladesh.
The decision is significant as AFSPA is also enforced in Manipur (excluding
Imphal Municipal Council area), Assam and Nagaland and in several districts
of Arunachal Pradesh.

NRI Allowed to Vote via e-postal Ballots


India has large number of its citizens living abroad temporarily or permanently
on account of education, employment and other related reasons. These citizens
were not able to participate in election process i.e. registration and voting due
to the then prevailing law which required that only a citizen ordinarily resident
within the territorial limits of a constituency in the country is eligible to be
registered as voter in that constituency. Consequently, a huge population of
citizens of India living abroad also known as non-resident Indian (NRIs) were
not able to enroll themselves as voters in their home constituencies and were
not able to exercise their franchise.

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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:

There is increase in cross border migration.

The concept of nationhood is changing.

Increased contribution of NRIs to welfare activities in India.

Political membership decoupled from territorial locations.

Increased citizen participation beyond boundaries worldwide.

This will encourage NRIs to participate in political and social issues of


India.

NRI remit huge amount thus deserve a say in government.

Investors looking for good returns will be encouraged to invest in the


nation.

Help in forming clear mandate of foreign policy.

Increase in tourism, education and insurance sectors.

Against NRI Voting

NRIs may not know regarding domestic conditions.

High chances of electoral malpractices.

Proxy or postal ballots open to manipulation.

E-ballot can be harmed through spyware, malware etc.

Citizens affected by government choice, not NRIs.

Public Engagement with the Legislative Process


In a representative democracy, elected representatives make laws on behalf of
citizens. Citizens ability to participate in the legislative process is fundamental
to democracy. Public participation with the legislative process results in better
laws and fewer amendments. Both transparency and accessibility of the
legislative process are required for effective public participation. Democratic
governments provide for public engagement in lawmaking through consultations.
The public may engage in different stages of the legislative process.
Law making process in India
The process of enacting a new law can be broadly divided into four steps:

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Step 1:The need for a new law, or an amendment to an existing piece of


legislation, is identified. This may be done either by the government or by
citizen groups who can raise public awareness regarding the need for the law.
Sometimes individual Members of Parliament (MPs) can introduce Bills in
Parliament, known as private member Bills, as ways to highlight the need for
a law.While such Bills are almost never passed into law, they can provide a
framework or a context within which the government can introduce its own
legislation on the same issue.
Step 2:The concerned ministry drafts a text of the proposed law, which is
called a Bill.The Bill is circulated to other relevant ministries for inputs.
Comments from the public on the proposed draft may also be invited. The
draft is revised to incorporate such inputs and is then vetted by the Law
Ministry.It is then presented to the Cabinet for approval.
Step 3:After the Cabinet approves the Bill, it is introduced in
Parliament.Under the Indian political system, Parliament is the central
legislative (or law making) body.Every Bill goes through three Readings in
both Houses before it becomes an Act.

During theFirst Readingthe Bill is introduced.The introduction of a Bill


may be opposed and the matter may be put to a vote in the House.In
August 2009, the Law Minister withdrew the motion to introduce the
Judges (Disclosure of Assets and Liabilities) Bill as many MPs were
opposed to the Bill, on grounds that it violated the Constitution.

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.

On rare occasions, Bills which come under the ambit of a number of


different ministries, may be referred to a Joint Committee.

The Committee then submits its recommendations in the form of a report


to Parliament.

In theSecond Reading (Consideration),the Bill is scrutinized thoroughly.Each


clause of the Bill is discussed and may be accepted, amended or rejected.

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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Step 5:After the President gives assent, the Bill is notified as an


Act.Subsequently, the Bill is brought into force and rules and regulations to
implement the Act are framed by the concerned ministry, and tabled in
Parliament.In some cases, if the provisions in the Bill permit, the ministry
may bring the Act into force over a period of time rather than all at once.For
instance, various sections of the Food Safety and Standards Act, 2006 were
brought into force in three different stages between August, 2006 and August,
2008.A number of sections of the Act have not yet been brought into force
as of date.

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

Legislation may be initiated by stakeholders or from within the government.


Some Bills, such as the Right to Information Bill (now an Act) and the Jan Lok
Pal Bill, were drafted by civil society groups. Public participation regarding
draft Bills is not statutorily mandated. The government has taken steps to
increase public engagement. In some cases the government has invited
stakeholders to consultations on proposed Bills. For instance the Department
of Information Technology had invited experts for consultations on the draft
Electronic Service Delivery Bill, 2011. The Ministry of Finance had held
regional consultations over the draft direct tax code. Ministries at times publish
draft Bills in the public domain. However, Ministries did not publish some
draft Bills like the Public Interest Disclosure Bill, 2010 and the Judicial Standards
Accountability Bill, 2010. Once draft Bills are published time is allotted to
submit of comments.

Legislative scrutiny

Public participation during legislative scrutiny may be conducted through


Parliamentary Committees. Prior to1993, Bills were occasionally referred to
ad-hoc Joint or Select Parliamentary Committees. Since then Department
Related Standing Committees (DRSC) have been established to scrutinise
Bills. There are 24 DRSCs that cover all ministries of the central government.
Once a Bill is introduced in Parliament, it may be referred to a DRSC. Some
Bills that were not referred to the DRSC include Special Economic Zones Bill,
2005 and the National Intelligence Agency Bill, 2008. Committees publish
notices seeking suggestions within a specified timeframe. In most cases, a
period of 15 days is provided to send comments. The level of public
engagement with standing committees varies with different Bills. For instance,
in relation to the Companies Bill, 2009 that sought to repeal the existing
statute, the DRSC on Finance received 101 written missions and heard 12 oral
submissions. Public comments were not invited and consultations were not
held at this stage over the Right to Free and Compulsory Education Bill, 2009.

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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

Scrutiny of current laws is not mandatory in India. However, mechanisms


exist for undertaking review of laws. Various Commissions, such as the Law
Commission, conduct review of legislation. Since its establishment in 1956,
the Law Commission has submitted 236 reports. The Commission identifies
laws that require amendments or repeal. In preparing its review of laws the
Commission circulates its draft analysis amongst the public and invites
comments. It also organizes seminars and workshops in different parts of the
country to elicit opinion on proposed strategies. In 2011 the Commission
released a questionnaire on its website for the public to send comments on
498A of the Indian Penal Code, 1860. In March 2011 the Ministry of Finance
constituted the Financial Sector Legislative Reforms Commission for a review
of Indian financial laws. The Commission is also empowered to take evidence.3
The National Human Rights Commission was established to review legal
safeguards to human rights. It holds consultations with NGOs and experts on
human rights issues. The Second Administrative Reforms Commission was
established to revamp the public administration system. The Commission
reviewed several laws and consulted various stakeholders in preparing its reports,
such as its reports on Right to Information, 2006 and Public Order, 2007. The
DRSCs may also examine the efficacy of laws. For example, in November
2011, the DRSC on Human Resource Development invited public comments
on the implementation of the Right to Free and Compulsory Education Act,
2009.
Importance of Pre-Legislative Scrutiny
The pre-legislative scrutiny can lead to transparency in law making. This process
promises to imbue decisions with greater information, expertise and legitimacy,
and allow public agencies to figure out levels of resistance, and specific
grievances, to a bill. The drafters can then craft a more considered consensus,
weighing interests carefully. Parliament is not doing a stellar job of legislative
scrutiny right now apart from the distractions and adjournments, about a
third of the bills in this Lok Sabha skipped the standing committee.
New policy related to pre legislative scrutiny process has been unveiled by the
government. The new policy requires that all Ministries and Departments of
the Central Government have to put the proposals for new Bills and
amendments to existing laws on their websites and invite comments and views
from the people before finalising them.
A 30-day period must be set aside for this purpose. The Law Ministry gets to
vet the Bill only after the nodal department/ministry completes the consultations
and makes changes to the draft legislation (if necessary). A compilation of
peoples views received have to be attached to the Cabinet Note accompanying
the draft Bill which is sent to the Union Cabinet for approval to be tabled in
Parliament. These views must also be shared with the Department-related
Parliamentary Standing Committee when the Bill is referred to it for detailed
consideration. The draft Bill must be accompanied with a simplified version

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along with financial implications of the proposed law as well as an assessment


of the likely impact of the new law if approved by Parliament. This is necessary
to enable people to understand the legislative proposals and their likely impact
better without having to struggle through the difficult legalese in which the
provisions are drafted.

Notes

The requirement of public consultation may be dispensed with in special cases


but reasons must be appended to the Cabinet note for such decisions. This
discretion will have to be ring-fenced through a more detailed protocol for prelegislative consultation which will specify the narrow list of circumstances in
which disclosure of the draft Bill may be dispensed with.
Recommendations by the National Commission to Review the Working of the
Constitution
Some recommendations for increasing public participation in the legislative
process were made by the National Commission to Review the Working of
the Constitution in its Report in 2002. The Commission suggested that draft
Bills should be subjected to thorough and rigorous examination by experts and
laymen alike. The proposed legislations should be circulated for public discussion
among professional bodies, business organisations, trade unions, academics and
other interested persons. It also recommended that all Bills should be referred
to DRSCs for consideration and scrutiny after public opinion has been sought
over the Bill. It was of the opinion that DRSCs may schedule public hearings,
if necessary.

Issue of Paid News


Paid News has been defined by PCI as - Any news or analysis appearing in any
media (Print & Electronic) for a price in cash or kind as consideration.
Paid News acts a cheating on democracy because:
a)

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)

Paid News seeks to circumvent election expenditure laws/ ceiling

d)

Paid News adversely affects level playing field

Incidences of Paid News in India

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.

In Uttar Pradesh, politicians complained about how leading newspapers


sold various packages or rate cards for publishing news in their favour
and/or completely blacking out news about their opponents.

EC has disqualified Smt. Umlesh Yadav, elected candidate at General


Election to Uttar Pradesh Legislative Assembly, 2007.
The Commission found her indulging in Paid News.

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In Maharashtra during 2009 Maharashtra elections the complaint against


Mr. Ashok Chavan was filed on the ground that he paid money to some
Marathi and Hindi newspapers during the 2009 elections to write in his
favour.

Existing Mechanism to Curb Paid News


There are various Guidelines/ Codes/ Norms/ Acts/ Organizations/
Professional bodies/ Legislations in existence to check the Paid News . Some
of these include Working Journalists Act, News Broadcasters Association
Code, Press Council of India Act and its Norms of Journalistic Conduct,
Indian Broadcasters Foundation Guidelines, Mint Code of Journalistic Conduct,
Cable Television Networks (Regulation) Act, 1995, Press and Registration of
Books Act, 1867, Code for Commercial Advertising on Doordarshan, etc.
The exiting regulatory set-up dealing with paid news is inadequate. The
voluntary self-regulatory bodies like the News Broadcasting Standards Authority
and Broadcasting Content Complaints Council arenot very effective. The punitive
powers of statutory regulators like the PCI and Electronic Media Monitoring
Centre (EMMC) found to be inadequate. There is a conflict of interest inherent
with appointment of media - owners as members of the PCI or self - regulatory
bodies. There is urgent need for a single regulatory body for both print and
electronic media or enhancing punitive powers of the PCI and setting - up a
similar statutory body for the electronic media
Steps needed for curbing Incidences of Paid News
Firstly it is for the newspapers and their organizations to do what they can to
eliminate the sources of this paid news. Managements should realize that
ensuring the fair wages is sure way of securing the fair pages in newspaper if
individual journalists are involved in paid news. Unions of working journalist
should achieve the implementation of prescribed wages as per Working
Journalists Act.
The paid news phenomenon represents a fatal combination of three Ms namely,
the media, money and mafia that can subvert free and fair elections. Earlier,
politicians used to hire musclemen with huge amounts of money and train
them in booth rigging. Now candidates are training media pens instead of
mafia guns to rig the minds of people with constant opinion bombarding. It is
not just a breach of media ethics or impropriety and not just the concern of
the Press Council of India. It is a crime against democracy, punishable under
law the syndrome is just not the concern of the Press Council of India but a
real challenge to the Election Commission of India, whose sole aim is to
conduct free and fair polls.
The Representation of Peoples Act 1951 is a well drafted piece of legislation
which can produce genuine representatives if genuinely implemented. Under
Section 123 of Representation of People Act 1951, bribery, undue influence,
appeal on the ground of religion, caste, etc, publication of false statement
relating to a candidate, free conveyance of voters, incurring of election
expenditure in excess of the prescribed limit and seeking assistance of
government servants are all considered corrupt practices. In 1989, booth
capturing was added as another corrupt practice in the law. In the present
context, the media sold space and time to perpetrate undue influence and by
the publication of false statements relating to winning chances of a candidate.

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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.

Analysis of working of Inter-State Council


In Article 263 of the Constitution, there is provision for the formation of an
inter-State Council. Although this Council has several functions, it is also
competent to tender advice regarding the resolution of inter-State disputes.
The Council charged with the duty of
a)

Inquiring into and advising upon disputes which may have arisen between
States;

b)

Investigating and discussing subjects in which some or all of the States,


or the Union and one or more of the States, have a common interest; or

c)

Making recommendations upon any such subject and in particular,


recommendations for the better co-ordination of policy and action with
respect to that subject, it shall be lawful for the President by order to
establish such a Council, and to define the nature of the duties to be
performed by it and its organization and procedure.

Issues Related to Inter-State Council

Issues Related to Structure: The structure of Council has been designed in


a manner that somehow ignores the participation of States in overall

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functioning of the Council. It has a top down approach. Also, it certainly


does not provide a common platform to the states where they can discuss
and exchange knowledge, skills and ideas related to development of states.
Even the Punchhi Commission Report talks about the sorry state of affair
of the ISC. The Commission underlined the need for strengthening and
mainstreaming the ISC and make it a vibrant forum for all the tasks
contemplated in Article 263.

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.

Temporary Body: As mentioned earlier, ISC is a temporary body, first


constituted through a Presidential Order in 1990, with Prime Minister as
its chairperson. Most recently it was reconstituted in 2013 by the UPA
government. With a new government in office, it needs to be reconstituted,
and here lies the opportunity to reform its structure and functions to make
it truly relevant to achieve the vision of cooperative federalism of the
new government.

Recommendations for improving the functioning of Inter-State Council


Best way for this is to restructure the ISC on the lines of a States-led Forum.
The restructured ISC should aim at better co-ordination among states which
can ultimately result into sharing, replication and up-scaling of innovative
governance and developmental practices and also help in developing innovative
solutions to address todays most pressing public policy challenges.
It should be dominated by Chief Ministers of States, and the central government
must take a back seat in functioning of the ISC. The Prime Minister, while
being the chairperson, must only discharge role of observer and to aid states
to reach at mutually acceptable solutions. At present, a Standing Committee
of the ISC has been constituted for continuous consultation and processing of
matters for the consideration of the Council. Selective representation from the
Business Community, Civil Society, Academia, Media, and Central Government
in accordance with the selected theme, must be allowed in such Standing
Committee to take an informed all-round view on the subject under
consideration.
A. Recommendation of ARC-1 (The Administrative Reforms Commission)
With regard to Inter-State Council the Commission made the following
recommendations:

Establishment of an Inter-State Council under Article 263 of the


Constitution which would discuss all issues of national importance in
which the States are interested.

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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The Council will be wide-embracing and will provide a standing machinery


for effecting consultations between the centre and the states. Only issues
of real and national importance need be taken up there. Others should be
settled by conferences convened by the ministries concerned, at a lower,
preferably official level.

The Council should have an appropriate secretariat. The Secretary of the


Council should be an officer having the knowledge, experience and status
that will enable him to work effectively.

B.

Sarkaria Commission Recommendations

Notes

With regard to Inter-State Council the Commission made the following


recommendations:

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;

It is very difficult for Council to work without an independent permanent


secretariat;

The separate identity of the National Development Council should be


maintained. However, its status should be formalized and duties reaffirmed
through a Presidential Order passed under Article 263 and it be renamed
as National Economic and Development Council (NEDC).

C.

Punchhi Commission Recommendations

The main recommendations of the Commission regarding the Inter-State


Council and its secretariat were as under:
a)

The Inter-State Council need to be substantially strengthened and activised


as the key player in intergovernmental resolutions. It must meet at least
thrice in a year on an agenda evolved after proper consultation with
States.

b)

The ISC must be empowered to follow up the implementation of its


decisions for which appropriate statutory provisions should be made. The
Government will be well advised to evolve an appropriate scheme to
utilize the full potential of ISC in harmonizing Centre-State relations
which has become urgent in the changed circumstances. Issues of
governance must as far as possible be sorted out through the political and
administrative processes rather than pushed to long drawn adjudication in
the Court.

c)

Inter-State Council appears to be the most viable, promising, Constitutional


mechanism to be developed for the purpose provided it is properly
restructured and duly empowered. Once ISC is made a vibrant, negotiating
forum for policy development and conflict resolution, the Government
may consider the functions for the National Development also being
transferred to the ISC.

d)

The Council should have functional independence with a professional


Secretariat constituted with experts on relevant fields of knowledge
supported by Central and State officials on deputation for limited periods.

e)

ISC should have an organizational and management structure which different


from the Government departments and flexible enough to accommodate

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management practices involving multidisciplinary skills conducive to federal


governance under the Constitution.
f)

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)

The Secretary of ISC should be designated ex-officio Secretary of the


Department of States reporting directly to the Union Home Minister who
is to be ex-officio Deputy Chairman of the Council.

Uniform Civil Code


The term civil code is used to cover the entire body of laws governing rights
relating to property and otherwise in personal matters like marriage, divorce,
maintenance, adoption and inheritance.
As things stand, there are different laws governing these aspects for different
communities in India. Thus, the laws governing inheritance or divorce among
Hindus would be different from those pertaining to Muslims or Christians and
so on.
A Uniform Civil Code administers the same set of secular civil laws to govern
different people belonging to different religions and regions. This supersedes
the right of citizens to be governed under different personal laws based on their
religion or ethnicity. The common areas covered by a civil code include:
a)

Personal Status

b)

Rights related to acquisition and administration of property

c)

Marriage, divorce and adoption

History of Uniform Civil Code


Codification of laws dates back to the Colonial Period. The Colonial Masters
played an instrumental role in shaping the legislative literature of our country.
The Lex Loci Report of October, 1840 emphasized on the necessity for
codification of Indian law relating to crimes, evidences, contract etc., but it
recommended that personal law ofHindusand Muslimsshould be kept outside
such codification. A formal declaration of the policy was made by Warren
Hastings in the Administration of Justice Regulation, 1780, where it was
pronounced that while dealing with disputes of marriage, divorce or inheritance,
people would be governed by their personal laws.
The British codified the law of crimes and made a secular law to deal with the
crimes. In the realm of personal laws very few attempts were made. The
attempt for a Codified Hindu law has also failed.
Post-colonial period, the framers of the Indian constitution and Mr. Nehru,
were convinced that a certain amount of modernisation is required before a
uniform civil code is imposed on citizens belonging to different religions including
Muslims. The issue was sensitive and a uniform civil code could be seen by
the citizens as an invasion on their culture and religion. The framers felt that
certain time should elapse before such a proposal can be undertaken. In backdrop
of partition, where chaos and bloodshed became the order of the day, again
brining an issue regarding religious laws would not have been a wise decision.

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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)

It will encourage communal harmony

Goa Implemented Uniform Civil Code


In India, Goa is the only state to have implemented the directive principle on
the Uniform Civil Code and converted it into a law called the Goa Civil Code
or the Goa Family Law. It is the set of civil laws that governs all the Goans
irrespective of the religion or the ethnicity to which they belong.
The Uniform civil code in Goa is a progressive law that allows equal division
of income and property regardless of gender between husband and wife and
also between children. Every birth, death and marriage has to be compulsorily
registered. For divorce there are severe provisions. Muslims that have their
marriages registered in Goa cannot take more than one wife or divorce by
pronouncing talak thrice. During the course of marriage all the property and
wealth owned or acquired by each spouse is commonly held by the couple.
Each spouse in case of divorce is entitled to a half share of the property and
if one dies the ownership over half of the property is retained by the other.
According to the Uniform Civil Code even if the children (both male and
female) have got married and left the house, the other half has to be divided
equally among them. Thus the parents cannot disinherit the children totally as
they can dispose only half of the property in a will and the rest has to be
compulsorily and equally shared amongst the children.
Conclusion
In order to promote the spirit of uniformity of laws and accomplish the
objectives enshrined in Art.44 of the Constitution, the following suggestions
need immediate consideration:
a)

A progressive and broadminded outlook is needed among the people to


understand the spirit of such code. For this, education, awareness and
sensitisation programmes must be taken up.

b)

The Uniform Civil Code should act in the best interest of all the religions.

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c)

A committee of eminent jurists should be considered to maintain


uniformity and care must be taken not to hurt the sentiments of any
particular community

Controversy over Provision related to RTI on


Political Parties
The Central Information Commission decided that political parties are public
authorities under the Right to Information Act and directs them to designate
information officers and appellate authorities as required under the Act to
dissipate information if asked by the citizens under the provisions of RTI Act.
The Right to Information Act passed by Parliament in 2005 applies to bodies
set up under the constitution or under some law, and bodies owned, controlled
or substantially financed by the government. The term substantially
financed is not defined. But the CIC has expanded the scope of this term to
rule that substantial financing does not imply majority financing and that
tax exemptions, allotment of premium land for party work and accommodation
in Delhi at subsidized rates is adequate ground for classifying political partiesas
substantially financed. Thus this amounts to indirect financing. Moreover, since
political parties are continuously engaged in performing public duty and
wield significant (direct and indirect) influence on governmental power, they
ought to be covered under the RTI.
The declaration of political parties as public authority would promote
transparency and encourage public debate. There are questions being raised on
the functioning of political parties and the funds they receive. Political parties
are an integral part of the democracy. Unless and until they are accountable to
the public democracy cannot be succeeded. Hence, there is a need to attain
more transparency regarding the functioning of political parties. By bringing
political parties in the public authority domain the confidence of the common
man on democracy and the political system of the country would increase.
Hence, political parties should be brought within the public authority domain
because:
a)

Larger public interest calls for declaration of Political parties as public


authority as it is likely to promote public debate. - It is imperative to
increase transparency of political parties to maintain and enhance public
confidence in them.

b)

Declaration of political parties as public authorities would help increase


transparency thereby maintaining and strengthening accountability of
political parties towards the public.

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.

Issues in the working of the Political Parties


Political parties are political organizations of individuals that seek to influence
government policy, usually by nominating their own candidates and trying to
seat them in political office. These parties participate inelectoral campaigns,
educational outreach or protest actions.
Political parties are indispensable to any democratic system and play the most
crucial role in the electoral process in setting up candidates and conducting
election campaigns. In recent years, we have witnessed a succession of unstable
governments, and the reason for such a recurring phenomenon is said to be the
archaic and chaotic functioning of political parties. Alliances and coalitions are
made, broken and changed at whim, and the balance of power seems to be
held not by those at the Union level, but by minor parties on the fringes. This
is because of the poor internal working system of the party.
Problems in the Working of Parties:
1. Absence of Inner Party Democracy: Over the last fifty years of
Independence, no political party has been able to observe the basic norms
of inner party democracy. The authority in organizational matters has
always been from the top to the bottom through successive layers of
party structures. Leaders of political parties in Independent India have not
always emerged through a process of democratic elections and promotion
from the lower levels to the higher and the top. Thus leadership in most
political parties in India may be democratic in appearance but highly
oligarchic in reality.
It is suggested by some scholars that enforcement of party constitution
through legal and judicial action may be necessary. Regular organizational
elections should be mandatory. In order to control bossism in parties,
many analysts have suggested the introduction of a more democratic
process of nominating party candidates by a primary election by the party
membership. An alternative suggestion is to authorize each local party
unit to have a significant say in nominating the party candidates in that
area for legislative offices.

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2.

Representation of Women: Political parties cannot remain indifferent


towards women who constitute nearly 50% of the electorate. Although
almost all parties have attempted to build women organizations to secure
their support and make their organization more broad -based, but in practice
they have fielded much less proportion of women candidates in the
elections giving them proportionately much less representation in the
legislative bodies than their actual population strength. In recent times
this has been a matter of crucial concern in view of the controversy over
reservation of 30% or so of the seats in these bodies.

3.

Need for Funds: To perform various functions and contest elections in


an effective manner, every political party requires huge funds. Apart from
expenditure of office establishment, full time-workers, agitations,
propaganda and travel, parties have to organize election campaigns. But
the financial matters of party are kept secret while other aspects of
organization are known to people. Very little is known about finances of
political parties. In fact, secrecy is maintained even within a party.

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.

Regionalisation: The regionalisation of political parties has compelled


many of the parties to orient their highly centralized organization and
decision-making structure to suit the new demands of party at the state
level, thus adopting a confederation like approach for the party
organization. This has resulted in a lesser assertion of national control
over state units.
Secondly, regionalism and regional parties have made ethnicity acquire
a growing respectability at home and abroad.
Thirdly, as national politics has now entered a coalition phase, regional
parties are being grouped together to provide a working majority at the
center. At the same time, differences in the economic, educational and
social interests of regional middle classes, intermediate castes and the new
classes are bound to overwhelm the unifying capacity of regional pride.
Moreover, as concerns of the national polity move away from egalitarian
restructuring, the regional parties too are likely to fall prey to the new
economic forces represented by liberalisation, globalization and the NRIs.

6.

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Casteism: Although there is hardly any instance in India of a political


party being totally identified with any particular caste group, yet there are

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cases of certain castes lending strong support to particular political parties.


Thus while political parties struggle among themselves to win different
caste groups in their favour by making offers to them, caste groups too
try to pressurize parties to choose its members for candidature in elections
7.

Communalism: The partition of the former united India in 1947 in two


independent nations had its origin in the forces of communalism that
swept the sub-continent during the first half of the last century. Despite
the emergence of India as a secular state, the politics of communalism
and religious fundamentalism in the post independence period has led to
a number of separate movements in various states and regions of the
country. Communal polarization, rather multi-polarization, has posed a
threat to the Indian political ethos of pluralism, parliamentarianism and
federalism. Despite the adoption of the principle of secularism as a
constitutional creed, which ironically allows communal parties to compete,
the trend towards communalism and fundamentalism in Indian politics
have been growing day by day.

8.

Criminalisation: Although the influence of muscle power in Indian politics


has long been a fact of political life since the First General Elections of
1952, when some feeble allegations were made about the use of outlaws
by the politicians to further their electoral prospects, the intensity and
frequency of such allegations, have increased in more recent times, and
the criminalisation of politics and the persons known to have criminal
past becoming legislators and ministers has not only become very common
but is being openly defended by the party leaders. A stage has now
reached when the politicians openly boast of their criminal connections.

9.

Growing Violence: The growth of political parties and emergence of


various political groups in India has brought into focus a very disturbing
and serious phenomena in the body politic of India.There are some
sections of the population and highly organized political groups and
parties, who do not like to remain within the orbit of the Indian Constitution
and work outside the existing political apparatus and party norms, and in
the process have taken to political violence and terrorism in a big way,
as the only method for political participation. This has not only spread
panic amongst the general population in some areas of the country, but
people seem to have lost confidence in the efficacy of government in
ensuring security for the general populace. Criminals now call the shots.
They dictate and the Governments obey. Whether it is the hijackers of
a plane or kidnappers of a film star, their writ runs supreme.

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.

Reservation for Women in Legislature


Social justice generally refers to the idea of creating a society or institution
that is based on the principles of equality and solidarity, that understands and
values human rights, and that recognizes the dignity of every human being.
The 108th Constitution Amendment Bill seeks to reserve, as nearly as possible,
one-third of all seats for women in the Lok Sabha and the state legislative
assemblies (including Delhi). The allocation of reserved seats shall be determined
by such authority as prescribed by Parliament. As nearly as possible, one third
of the total number of seats reserved for Scheduled Caste/Scheduled Tribes
(SC/ST) in the Lok Sabha and the legislative assemblies shall be reserved for
SC/ST women. Reservation of seats for women shall cease to exist 15 years
after the commencement of the Act.
In Lok Sabha : Reserved seats may be allotted by rotation to different
constituencies in the state or union territory. If a state or union territory has
only one seat in the Lok Sabha, that seat shall be reserved for women in the
first general election of every cycle of three elections. If there are two seats,
each shall be reserved once in a cycle of three elections. Similar rules apply
for seats reserved for SC/STs. Of the two seats in the Lok Sabha reserved for
Anglo Indians, one will be reserved for women in each of the two elections in
a cycle of three elections.
In Legislative Assemblies : The Bill reserves one-third of all seats in the
legislative assemblies that are to be filled by direct election for women. Such
seats may be allotted by rotation to different constituencies in the state. For
SC/ST seats, similar rules as those for the Lok Sabha apply.

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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

Provide more democratic


choice to voters.
Allow more flexibility to parties to
choose candidates and constituencies
depending on local political and social
factors.
Can nominate women from minority
communities in areas where this will
be an electoral advantage.
Does not decrease the democratic
choice for voters.
Does not discriminate against male
candidates.
Might make it easier for members
to nurture constituencies whose average
size is about 2 million people.

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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Real Estate (Regulation And Development) Bill,


2013
Real estate development and housing construction was largely the concern of
State institutions till the 1980s with very few private promoters and a nascent
industry. With the liberalization of the economy, conscious encouragement
was given to the growth of the private sector in construction, with a great deal
of success, and the sector today is estimated to contribute substantially to the
countrys GDP.
Currently, the real estate and housing sector is largely unregulated and opaque,
with consumers often being unable to procure complete information, or to
enforce accountability against builders and developers in the absence of effective
regulation.
GOI has introduced amendments in the Real Estate (Regulation And
Development) Bill, 2013 - to provide a uniform regulatory environment in the
real estate sector which is laced with black money, corruption, red tapism, land
mafias and corruption. The core objectives of this Bill are twofold i.e. to
ensure sale of immovable properties in an efficient and transparent manner
and to protect the interest of consumers in the real estate sector.
The salient features of the Bill are as under:
The Bill regulates transactions between buyers and promoters (sellers) of
residential real estate projects. It establishes state level regulatory authorities
called Real Estate Regulatory Authorities (RERAs) in order to do so. Residential
real estate projects, with some exceptions, need to be registered with RERAs,
and their details must be uploaded on the website of the RERA. This implies
that promoters cannot book or offer these projects for sale without registering
them with RERAs. Real estate agents dealing in these projects also need to
register with RERAs. The Bill also establishes state level appellate tribunals
called Real Estate Appellate Tribunals. Decisions of RERAs can be challenged
before these tribunals.
The Bill outlines the duties of promoters, buyers, and real estate agents. For
example, the Bill requires that promoters keep 70% of the amount collected
from buyers for a project, in a separate bank account. This amount must only
be used for construction of that project. The state government can alter this
amount to less than 70%. The Bill also provides for penalties for the breach
of certain provisions of the Bill.
Proposed benefits of the Bill:
The Bill provides for a uniform regulatory environment, to protect consumer
interests, help speedy adjudication of disputes and ensure orderly growth of
the real estate sector. The Bill contains provisions of registration of real estate
projects and registration of real estate agents with the Real Estate Regulatory
Authority; functions and duties of promoters and allottees; establishment of
Real Estate Regulatory Authority; establishment of fast track dispute resolution
mechanism through adjudication; establishment of a Real Estate Appellate
Tribunal; offences and penalties etc.
These measures are expected to boost domestic and foreign investment in the
sector and help achieve the objective of the Government of India to provide
Housing for All by 2022, through enhanced private participation.

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The Bill is expected to ensure greater accountability towards consumers, and


to significantly reduce frauds and delays. The Bill is also expected to promote
regulated and orderly growth through efficiency, professionalism and
standardization. It seeks to ensure consumer protection, without adding another
stage in the procedure for sanctions.

Notes

Issues related to the Bill


A few key issues to consider in the Bill are related to the following: (i) certain
states have already enacted laws to regulate real estate; (ii) commercial real
estate has not been included within the ambit of the Bill; (iii) certain smaller
sized projects have not been covered under the Bill; and (iv) 70% of the
amount collected from buyers must be kept in an escrow account.
Firstly, at present, certain states, such as West Bengal and Maharashtra, have
already enacted laws to regulate real estate. So, any central law on real estate
that is subsequently enacted will override provisions of state laws if they are
inconsistent with the central law. For example, while this Bill (introduced at
the centre) requires that 70% of the amount collected from buyers be kept in
a separate account and be used only for construction of that project,
theMaharashtralaw requires that theentire amountcollected from buyers be
usedonly for purposes collected.
Secondly, while the Bill seeks to regulate residential real estate, commercial
real estate has been excluded from its ambit. The Standing Committee has
also pointed out that commercial and industrial real estate should be regulated
by the Bill.
Thirdly, registration with RERAs is not required forprojects that: (i) are less
than 1000 square metres, or (ii) entail the construction of less than 12
apartments, or (iii) entail renovation/repair/re-development without re-allotment
or marketing of the project.The Standing Committee has pointed out that the
exclusion of projects, smaller than 1,000 square meters or 12 apartments, from
the purview of RERAs could lead to the exclusion of a number of small
housing projects. Instead, it has suggested that only projects that are smaller
than 100 square meters or three apartments need not register with the RERA.
Finally, the Bill mandates that 70% of the amount collected from buyers of
a project be used only for construction of that project. Typically, the project
cost of a real estate project includes the cost of land and the cost of
construction. In certain cases, the cost of construction could be less than 70%
and the cost of land more than 30% of the total amount collected. This
implies that part of the funds collected could remain unutilised, necessitating
some financing from other sources. Consequently, this could raise the project
cost.
TheStanding Committeemade certain other recommendations in relation to
the Bill. It suggested that all real estate agents be registered with RERAs; and
that a new provision be inserted to allow RERAs to give directions to state
governments to establish a single window system for providing clearances for
projects. Additionally, a time limit should be specified for state and local
authorities to issue completion certificates for projects.
Recent changes to the Bill approved by Cabinet
The following changes have been made: firstly, the application of the Bill has
been extended to cover commercial real estate, in addition to residential real
estate; and secondly, the amount to be kept in an escrow accounthas been
reduced from 70% of the amount collected from buyers to 50%.

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The Whistleblowers Protection Act, 2014


Whistle blowing can be defined as an act of disclosure of information by
people within or outside an organization and that which are not otherwise
accessible to public, generally of activities of organization that are against
public interest. Whistle blowing as a channel of unveiling information about
illegal or unethical activities thus helping to take a positive step towards
reduction of corruption.
Salient features of the Act:
Under the Act Whistleblowers may make complaints about:
a)

Corruption (as defined in the Prevention of Corruption Act, 1983);

b)

Willful misuse of power or discretion which may lead to demonstrable


loss to the Government or wrongful gain to any person including a public
servant; and

c)

Commission of or attempts to commit offences recognized under law by


any public servant to the competent authority.

The following authorities are competent to receive whistleblower complaints:


a)

The Prime Minister at the Centre and the Chief Minister in the States
against Ministers of the Union or the States respectively;

b)

The respective Chairpersons of the House against members of Parliament


or the State Legislatures (other than those who may be Ministers);

c)

The High Court in relation to any judge or judicial officer or arbitrator in


the States (judges of the High Courts and the Supreme Courts are not
covered by this law as the Judicial Standards and Accountability Bill is
pending in Parliament. However this Bill will lapse after the current Lok
Sabha is dissolved after the general elections this year);

d)

The Central Vigilance Commission or such other authority as the Central


Government may notify for all other public authorities and public sector
undertakings at the Union level; and

e)

The State Vigilance Commission or such other authority as the State


Government may notify in due course to receive complaints against public
authorities and state level public sector undertakings.

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)

Recommend that formal proceedings be initiated against the public servant


complained against.

b)

Take appropriate steps to redress the loss caused to the Government.

c)

Recommend initiation of appropriate criminal proceedings against the


person complained against.

d)

Recommend taking corrective measures.

e)

Recommend any other necessary measure for the purpose of the law.

f)

Close the case (complainant must be given an opportunity to object to the


closure order).

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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Whistleblowers would be entitled to official protection only if all of these


conditions are met, could face action if they are not, and the central and state
governments would be the final authorities with the power to judge each case.
Issues related to the Act
a)

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)

Penalty: The Vigilance Commission may reveal the identity of the


complainant in certain circumstances (which may lead to victimisation)
but the Bill does not provide for any penalty for victimising a complainant.
However, a complainant may be penalised with imprisonment and a fine
for making false complaints. This was recommended by the Law
Commission report and the Cabinet Note stated that the Bill aimed to
protect honest officials. Such provisions may deter persons from making
a disclosure to the Vigilance Commission.

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.

New Land Acquisition Bill


Land acquisition refers to the process by which government acquires private
property for public purpose.
The original Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 was passed by end of 2013 and
was brought into effect on 1st January 2014. The 2013 Act brought in several
changes to the process of land acquisition in the country. Firstly, it increased
the compensation provided to land owners, from 1.3 times the price of land
to 2 times the price of land in urban areas, and 2-4 times the price of land in
rural areas.
The Ordinance was promulgated on December 31, 2014 and will lapse on
April 5, 2015 if not passed as a law by Parliament. Thus,the Right to Fair

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Compensation and Transparency in Land Acquisition, Rehabilitation and


Resettlement (Amendment) Bill, 2015has been introduced in Parliament to
replace the Ordinance. The Bill has been passed by Lok Sabha,with certain
changes, and is pending in Rajya Sabha.

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.

Supreme Court strikes down Section 66A of


Information Technology Act
Over the past few years, incidents related to comments, sharing of information,
or thoughts expressed by an individual to a wider audienceon the internet have
attracted criminal penalties under Section 66(A).
Section 66A of the Information Technology (Amendment) Act, 2008 prohibits
the sending of offensive messages though a communication device (i.e. through
an online medium). It provides punishment for sending offensive messages
through communication services. These messages may be any information
created, transmitted or received on a computer system, resource or device.
Article 19(1)(a) of the Constitution guarantees to citizens a right to freedom
of speech and expression. The immediately succeeding clause, Article 19(2),
however limits this right in allowing the state the power to impose by law
reasonable restrictions in the interests, among other things, of the sovereignty
and integrity of India, the security of the state, public order, decency or morality,
defamation, or incitement to an offence.
But none of these grounds contained in Article 19(2) were capable of being
invoked as legitimate defences to the validity of Section 66A of the IT Act.
Therefore recently Supreme Court has stated Section 66A of the Information
Technology Act as unconstitutional in its entirety, thus striking down a
draconian provision that had led to the arrests of many people for posting
content deemed to be allegedly objectionable on the Internet. According to
the Supreme Court Section 66A arbitrarily, excessively and disproportionately
invades the right of free speech and upsets the balance between such right and
the reasonable restrictions that may be imposed on such right.
It also struck down a similar law in Kerala: Section 118(d) of the
KeralaPoliceAct is struck down being violative ofArticle19(1)(a) and not
saved byArticle19(2) what has been said about Section 66A
wouldapplydirectly to Section 118(d) of the KeralaPoliceAct, as causing
annoyance in an indecent manner suffers from the same type of vagueness and
over breadth, that led to the invalidity of Section 66A, and for the reasons
given for striking down Section 66A, Section 118(d) also violatesArticle19(1)(a)
and not being a reasonable restriction on the said right and not being
savedunderany of the subject matters contained inArticle19(2) is hereby
declared to be unconstitutional.
The bench, however, upheld the governmentspowerto create separate offences
for the cyber world and declared as constitutional Sections 69A and
79(3)(b),underwhich blocking orders and take-down notices are issued
towebsitesto remove certain objectionablecontentin accordance with
guidelines. The court said the guidelines provided necessary safeguards.

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