1. The question of judicial activism vis a vis judicial overreach has cropped up yet again with few legislators having firm views against judicial adventurism. What is your opinion on this matter? Substantiate your views.
India adopted a Parliamentary Democracy under which laws are made by the legislature, this Constitution under art 50 provides for the separation of judiciary from other organs of the state. It follows the Policy of Checks and Balances, where each organ acts as counter balance to the other; problem arises when this balance is disturbed.
Judicial activism arises when the judiciary encroaches upon the domains of the executive and the legislature, where it not only makes the laws but also implements it, the need for judicial activism has arises because of lethargy, insensitivity and neglect of the needs of the people and the society by the other two organs,
Judiciary invented the Public interest Litigation to give voice to the vulnerable and the marginalized sections, this instrument has brought about sea changes in the lives of common people made the workplaces safer for women E.g. Vishakha guidelines , our cities cleaner e.g.: CNG in Delhi and Gujrat, and the recent ban on registration of new diesel vehicles in Delhi, transparent governance, Recent spectrum auctioning which has made the process simples and also generated better revenue for the state
Judiciary has not only acknowledged the problems of extremely vulnerable groups but also have given them rights, e.g. providing dignity to human and animal life, LGBT rights and Banning of Jallikattu.
People have accepted judicial activism because the other two organs have failed to deliver.
However ,the legislators and the executive complain that this proactiveness of judiciary has led to judicial overreach, where the popular mandate is being sidelined,
Law which is to be made by legislature is being made by non-elected judiciary, which is not answerable to the public. This causes loss of faith of public in democratically elected government.
Policy and economic decisions which are executives prerogative are hijacked by the Judiciary e.g.: fixing of the toll plaza fee,
Judiciary undermining the legislature and considering itself as the sole custodian of the public, Eg SC monitored floor test of Uttarakhand ,Directing the Governor to conduct floor test in MP.
Laws are being made either in accordance /reaction to judicial pronouncements rather than judiciary reviewing the laws made by legislature, So much so that PIL have become the new law making tools rather than debates in parliament.
Write a brief conclusion about how maintain the balance between all the three organs of the State.
Best answer: DAKU@PUNE
Judiciary, legislative, executive are the principle organs of India. The role, powers, actions of these three are clearly demarcated in constitution .Problems arises when they interfere each other’s areas knowingly or unknowingly. There are three terms namely judicial review; judicial activism and judicial overreach are common these days.
Judicial review–>emanates from article 13( if any law made my legislature inconsistent with FR shall be void)
Judicial activism –>judiciary called it as they are the ultimate guardian of law
Judicial Overreach–>termed by executive as they saw it interference in their powers. Sometimes they termed it as Adventurism.
If legislators, executives are not performing their duties well then judiciary acts. Recent years Judiciary having proactive role play and is more vocal on the legislation passed. They have taken firm stance if any laws that are not beneficial for the society in general and people at large.
In section 66A of IT act, SC repel the law as it was taking away the basic freedom of expression.
Some time SC takes suo moto cognizance and pulled up Government for inaction in certain areas. Recently on drought issue SC had set a timelines for State to act.
Recent action of HC against IPL matches in Maharashtra also shows the judiciary in action and lack of legislative will
Intervention in political crisis in Uttarakhand also shows the judicial activism of courts.
It’s not all about terminologies that legislative, executives, judiciary are using instead of it there should be proper coordination between all organs of India. Ultimately if they acts together there would a good laws and actions for the betterment of society, people. Eventually the roots of democracy will be strengthening.
2. Auction of resources and tendering of contracts are vulnerable areas of governance and prune to corruption. A policy overhaul is required to streamline these processes. Comment.
Natural resources are wealth of a nation. The utilization of resources should be in the best possible manner so that the benefits can availed by all citizens .Indian government award contracts to various firms for exploration of these resources, but more often such contracts are said to be opaque in nature and have lead to many scams where middle men were involved and due process where not involved like scams relating to 2G spectrum allocation, Coal sector scams or scams in defence sector.
Reason of corruption:
There is huge amount of money involved and no audit is conducted at time of allocating the contracts giving scope for scams to happen. There is ineffective regulatory oversight.
The ministers involved do not go for wider consultation and award contracts in a hurry.
Many projects are stuck up due to nepotism or sometimes change in government and this also give chance for scams to happen.
Long delay in getting clearance for different ministries.
Complex and long drawn procedures.
Less use of technology in assessment.
Overburdened manpower and infrastructure.
Ambiguous policy norms giving discretion to public servant.
Lack of transparency and accountability.
Obsolete laws and procedures.
Promoting e – auction: with greater transparency and records on display there will be lesser opportunities.
An independent oversight committee: will be fully responsible for transparency and fairness of auction process.
Procedural Guidelines: A clear guidelines be followed must be provided to each department and any exceptions must be recorded with reason.
Promoting whistle blowing: This is another area that will be revolutionary for transparency.
Addressing collusive corruption: as tendering process are seen prone to collusive corruption amendment in PCA 1986 for collusive corruption will act as deterrent.
Single window clearances and enhancing ease of clearance process.
Innovative ideas like Swiss challenge can be tried out.
The enactment of insolvency and bankruptcy code and imposition of huge caution deposits thereby identifying incapable bidders reducing redundancy.
Identifying and penalising corrupted officials and terminating from their posts helps root out corruption at the beginning.
Protection of whistle-blowers.
Enhancing the powers of ombudsman.
Creating awareness among common man makes the system more accountable and transparent to the vulnerabilities brought about by these corrupted practices.
Protection of whistle-blowers, enhancing the powers of ombudsman, creating awareness about them among common man makes the system more accountable and transparent to the vulnerabilities brought about by these corrupted practices.
3. Promotion of swadeshi on one hand and initiatives to attract FDI on the other are not contradictory. Rather they merge together to form the greater policy environment to promote employment. Examine.
In the recent scenario, ‘Swadeshi’ does not meant to be opposing each and every thing which comes from outside India, but it meant to be becoming self-reliant. The term ‘Swadeshi’ consists to promote as well as stimulate domestic industries like small scale and cottage industry.
Nearly 50 per cent of India’s GDP still comes from the unorganized sector. 90 per cent of employment comes from the unorganized, informal, non-corporate sector which is largely sustained on relationships and not formal financing. It is creating an ecosystem for this unorganized sector which forms an important aspect of swadeshi.
Creation of ‘swadeshi’ infrastructure and manufacturing activity is very vital for accelerating the growth and to remove poverty and unemployment. However, there is a growing realization that Swadeshi on its own cannot meet employment challenge as –
India’s manufacturing activity has weakened because of domestic inefficiencies, whether it is infrastructure or power. There is also a need to try making our industry competitive.
There is lack of adequate domestic resources to meet investment requirement of the economy
There is lack of sufficient technological and managerial depth in India.
Also in the present globalization scenario, a country cannot live isolated; integrating the needs of the country with the world is a measure to ensure the success of various socio-economic schemes undertaken for the benefit of the people.
Therefore, creation of ‘swadeshi’ (local) infrastructure with ‘videshi’ money (foreign investment) plays very significant role in the developing world. FDI is needed to finance our manufacturing sector and infrastructure. It is the mostly preferred source of external finance for the reason that they are not debt creating as well as non-volatile in nature. It is also a very good means for the transfer of technology and knowhow to the developing countries.
FDI in infrastructure like Road, Railway etc is needed to ensure efficient logistics and modernization for traditional industries. FDI in e-commerce will ensure better marketing of Swadeshi goods within India. FDI in Service sector such as insurance, pension will provide employment such that it is not detrimental to swadeshi industry. It also helps to strengthen trade ties with the rest of the world thus promoting employment opportunities.
Presently, we are facing highly competitive world so we need both inflow and outflow FDI for accelerating the growth on one hand and to remove poverty and unemployment or to generate employment, we cannot ignore the importance of ‘Swadeshi’ on the other hand. Thus, they merge together to form the greater policy environment to promote employment.