SYNOPSIS- IASbaba’s TLP 2017 [27th Feb] – Day 31

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1. There are elaborate provisions in the Constitution which mandate the separation of powers. Discuss these provisions along with suitable examples.

In India, strict separation of powers is not followed as it is followed in the U.S. But a system of checks and balance (this is a key word)  has been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature. The constitution makers have also meticulously defined the functions of various organs of the state. Legislative and executive, which acts the two facets of people’s will have all the powers including that of finance.

There exists clear division between the head of the state and the head of the government. The executive is president; the legislature is Parliament (Lok Sabha and Rajya Sabha) and the judiciary contains Supreme Court, High Courts and other lower courts. Similarly at the level of states, the Governor acts as executive and there exists legislative body at each state.

Constitutional Provisions

Article 50

Article 50 puts an obligation over the state to separate the judiciary from the executive. However, Article 50 falls under the Directive Principles of State policy (DPSP) and hence is not enforceable.

Articles 121 and 211

The legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court. They can do so only in matters of impeachment.

Articles 122 and 212

The courts cannot inquire the validity of the proceedings of the legislatures.

Article 361

The President and Governors enjoy immunity from court proceedings.

Checks and balances

The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it is not specifically mentioned in it. Hence, no law and amendment can be passed violating it. The system of checks and balances is essential for the proper functioning of three organs of the government. Different organs of the state impose checks and balances on the other. The following examples illustrate the checks and balances:

• Judiciary exercises judicial review over legislative and executive actions. Judiciary has the power to void laws passed by the Parliament. Similarly, it can declare the unconstitutional executive actions as void.
• Legislatures review the functioning of the executive.
• Executive appoints the judges.
• Legislative branch removes the judges. It can also alter the basis of the judgment while adhering to the constitutional limitation.

Checks and balances acts in such a way that no organ of the state becomes too powerful.

Best Answer: PBN (Selected because of Presentation. Most of the aspirants have written the same points)

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2. https://uploads.disquscdn.com/images/b879de52a5ca1f6571cc47d1f8b1b98823e24294336d8bbdb3a0f69fd401ab14.jpg

2. The legal rights of an average Indian is compromised by the delays in judicial proceedings. In this light, examine the significance of alternate dispute resolution mechanisms.

Introduction:

In India there is an acute shortage of judges and cases have been surmounting. Due to prolong delays in judgements people are losing faith in the judicial system. An average Indian is reluctant to approach court to seek justice owing to the huge amount of time and money involved.

Body:

The number of pendency cases are over 3crores and there over 45% vacancies in the high courts. The rate of justice delivery suffers a setback which infringes the legal right of an Indian to get justice in time, which is the essence of judicial process i.e., time bound delivery of justice so that the sense of justice is restored and the collective harm minimized.

ADR or “Alternative Dispute Resolution” is an attempt to devise machinery which should be capable of providing an alternative to the conventional methods of resolving disputes.

The Acts which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987. Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedings to take place in accordance with the Acts stated above.
It is now made obligatory for the Court to refer the dispute after issues are framed for settlement with the concurrence of the parties either by way of: Arbitration, Conciliation, Judicial settlement including settlement through Lok Adalat, or Mediation
advantages:

Advantage of Alternate Dispute Resolution:

1. It is less expensive. It is less time consuming.
2. It is free from technicalities as in the case of conducting cases in law Courts.
3. The parties are free to discuss their difference of opinion without any fear of disclosure of this fact before any law Courts.
4. The fact that parties are having the feeling that there is no losing or winning feeling among the parties by at the same time they are having the feeling that their grievance is redressed and the relationship between the parties is restored.

Conclusion:

Write a brief conclusion.

Best answer: Oolong slayer IPS

ADR or “Alternative Dispute Resolution” is an attempt to devise machinery which should be capable of providing an alternative to the conventional methods of resolving disputes.The Acts which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987.

The Malimath Committee underlined the need for alternative dispute resolution mechanism such as mediation, conciliation, arbitration, Lok Adalats etc. as a viable alternative to the conventional court litigation.

SIGNIFICANCE OF ADR:
– It is less expensive than court.
– It is less time consuming than court.
– It is free from technicalities as in the case of conducting cases in law Courts.
– The parties are free to discuss their difference of opinion without any fear of disclosure of this fact before any law Courts.
– Parties involved are having the feeling that their grievance is redressed and the relationship between the parties is restored.
– It was founded on the Constitutional basis of Articles 14 and 21 which deal with Equality before Law and Right to life and personal liberty respectively.
– ADR also tries to achieve the Directive Principle of State Policy relating to Equal justice and Free Legal Aid as laid down under Article 39-A of the Constitution.

In today’s time when the judicial system is heavily burdened and cases run without solution for years, ADR has proved to be really beneficial in unclogging the burden and providing speedy justice. The need of the hour is to further streamline this system and make it citizen friendly for better results.

3. Compare and contrast the constitutional federal structure of India with that of USA.

Introduction

A federation is a state having one central (federal) government acting for the whole country and several state governments existing side by side having control over their areas. Both the governments exercise power over their definite sphere as provided in the Constitutions and does not interfere with each other’s functions.

Body:

Similarities between the federalism of US and India

1. Written Constitution: The Constitution of both US and India is a written Constitution, which provides for a federal political structure where both the governments exercise their respective powers.
2. Bill of Rights and Fundamental Rights: Both the constitutions provide fundamental rights to its citizens through “Bill of Rights” of the USA and the Part 3 (art 12-art 32) of the Indian constitution.
3. Supremacy of the federal/ central governments: Both the countries have strong central governments, the states do not have the power to secede from the union.

Differences between the federalism of US and India

1. Amendment powers: in USA the states can initiate the constitutional amendment procedure which is not possible in India.
2. Ease of amendment : the USA’s constitution is very rigid which requires difficult majority for the amendment, i.e., 3/4th majority of states, where as in India constitutional amendments affecting the powers of the state require only half the states to ratify to become operational
3. Residuary powers: the residuary powers in India belong to the Centre under art 248, whereas it rests with the states in USA.
4. Citizenship: a citizen of USA has dual citizenship of the country as well as the state, entailing different rights and obligations, the Indian citizen has only one citizenship.
5. Distribution of seats in upper house: the senate has uniform composition of 2 members from each state in the USA, while the upper house in India has uneven distribution based on the population of the state.
6. Intervention by the federal government: in India the Centre can intervene into states functions in case of national emergency (art 352), national importance (art 249), president’s rule (art 356) etc. while the federal government cannot do such a thing in USA.
7. Office of the governor: the Governor of the state is appointed by the Centre in India, who is also the agent of the Centre, while the Governor is elected in USA and acts independent of the federal government.

(Students can choose any similarity and difference that they find appropriate, in addition to those mentioned above)

Conclusion:

Write a brief conclusion.

Best answer: Jyoti Gopinath

Though India and USA constitutions are federal by principle,they differ significantly one another with few similarities. This is mainly due to the historical, Social and Economic background of India and US.

1.The Indian federal system is popularly know as Quasi Federal, because the states are created by the constitution but the constitution does not provide any guarantee for the continuance. The parliament can any time may use Article 3 and 4 to change its boundaries with out it concurrence, where as it is not possible in USA without respective state concurrence and their existence is guaranteed by constitution.

2. The State’s are not independent completely for the Center supervision Article 355 ensures that the State has to follow the direction of Center or else the center can impose President’s rule in state where as in USA there is no such provision states are supreme in there spears of power.
3. In India. the states are depend on the Center for certain extent to their financial needs, Same with the USA but the states in USA are much more self reliant than in India.
4. There is no case of Single Judiciary, Single Citizenship. All India services, Only One constitution,etc as we have India in USA. Where as in USA states have their own constitution, Judiciary, Citizenship apart of Federal One’s.
5. The amendment of constitution has to accepted by the majority states and states can also initiate the amendment to Constitution in USA where as in India maximum portion of constitution can be amended by the Parliament itself except in few cases.
6. The residuary powers are rested with the Parliament in India where as in USA it is with states.
7. The US has elected Governor for each state through election, where as in India governor is appointed by Center.

Though India has many unitary features compared to USA, but those are unwarranted to maintain the Order, Stability and Integrity of India. The increasing bent towards cooperative federalism will surely make India more federal in spirit

4. The regulatory regime for films needs an overhaul in India. Comment in light of the recent controversy surrounding CBFC.

In recent days actions of the censor board is in news for all the wrong reasons.

The Central Board of Film Certification (CBFC) which is mandated with the task of certifying films for public viewing under the provisions of The Cinematograph Act, 1952 but over the years, it has turned itself into a body that’s known more for its acts of censorship –  cutting out scenes, muting profanities, or even better, banning a film altogether. The changes demanded are often arbitrary and reflect a lamentable lack of appreciation for the artistic integrity of the film and the creative freedom of the filmmaker.

The board has been in the news with increasing and alarming regularity for its decisions to ask for sometimes ridiculous audio and visual cuts in films in order to make them adhere to a perceived ‘Indian’ standard of morality and also for its clownish attempts to “sanitise” films.

However, the board’s problems run much deeper than these.

The rot in the CBFC is systemic, rife with controversial appointments to important posts, corruption, an outdated act that leaves too much to interpretation, and a propensity to over-err on the side of political correctness. On the guillotine, often, are the visions and hard work of filmmakers as well as artistic sensibilities.

CBFC’s stringent, scissor-happy attitude has been indirectly responsible for the general mediocrity in Indian commercial cinema, restricting what filmmakers can and cannot depict on screen and thereby curbing artistic freedom and fostering an environment where broad, accessible, majoritarian content is passed off as ‘entertainment’.

Certain terms and clauses in the Cinematograph Act such as “public order”, “decency” or “morality” are quite vague and open to interpretation.

The Examining Committee which carries out certification process are often party workers who have been given a CBFC appointment as reward for political favours. Many are severely underexposed to cinema and lack the artistic sensitivity to evaluate a potentially provocative scene or line of dialogue as per context.

Therefore, unless the Cinematograph Act itself is overhauled and made more contemporary, film certification is bound to be plagued by irrational and deeply subjective yardsticks of what is “moral”, or “decent” or against “public order”. Implementing Shyam Benegal Committee’s recommendations on the functioning of the CBFC may end the Board’s glory days of wanton censorship.

Best answer: (No best answers)

5. What are generic drugs? Why generic drugs are essential for a developing country like India?

A generic drug is identical–or bioequivalent–to a brand name drug in dosage form, safety, strength, route of administration, quality, performance characteristics and intended use.  Although generic drugs are chemically identical to their branded counterparts, they are typically sold at substantial discounts from the branded price.

Or

A generic drug is a drug defined as “a drug product that is comparable to a brand/reference listed drug product in dosage form, strength, quality and performance characteristics, and intended use.” It has also been defined as a term referring to any drug marketed under its chemical name without advertising or to the chemical makeup of a drug rather than to the advertised brand name under which the drug is sold.

Importance of generic medicines in Indian context-

• Cost difference between branded and generic drug is so much that even well to do people cannot afford a branded drug. In India a large population falls below poverty line and also affected with health related issues, hence generic drugs helps poor in accessing the essentials drugs.
• India has the highest burden of TB,diabetes cases in the world and the antibiotics required for the treatment is very costly if brand named drugs will be taken thus pushing people into poverty.
• The study by The Lancet showed that in health expenditures about two-thirds goes to for purchasing of drugs. Hence generic drug save a lot of expense on health not only of patients but also of governments, which run the public health care system.
• Due to the blind usage of antibiotics,people tend to develop antibiotic resistance making first line of drugs ineffective so generic drugs can be the next alternative.
• Economic and employment perspective – Indian pharma companies are the largest providers of generic medicine in the world.  The generic drugs industry generates impressive economic dynamism, employment, foreign exchange, FDI, medical tourism, etc.

Conclusion:

India being affected by both poverty and health related issues, hence access to essential drugs to needy section of the society is most important need. Government should do all those efforts to get easy access to the generic drugs. Also it should ensure all time availability of essential drugs in Jan Aushadhi outlets.

Best answer 1: SRUSHTI DESHMUKH

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Best answer 2: Kartik

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2. https://uploads.disquscdn.com/images/8fdff5ad467f585c7d31ecef9b77fc164ffe8888ea9db00f877b7bebfa07b658.jpg