TOPIC: General Studies 2
- Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.
- Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Panchayti Raj System
We are effectively on the verge to begin 25th year since constitutional decentralization of power to include a third tier of governance. But the ground level change has been dismal and devolution still remains farfetched.
73rd and 74th Amendment:
The 73 rd Amendment (together with the 74th) is rightly called ‘a silent revolution’ for various reasons.
- First of all, the PRIs no longer operate at the whim of state governments and their laws.
- They are now a part of the Constitution and enjoy the status of institutions of self-government, as parliament at the federal level and legislative assemblies at the state level.
- The amendment prescribes regular elections every five years and election within six months of the dissolution of any PRI.
- To ensure free, fair, and timely elections there is a provision for the setting up of state election commission.
- The most revolutionary provision is the reservation of one-third of the seats for women in local bodies, along with reservation of seats for scheduled castes and scheduled tribes in proportion to their regional populations.
- The amendment lays down 29 functions to be entrusted to the PRIs.
- To maintain a democratic ethos, popular accountability, and transparency, the amendment emphases the need for periodic meetings of the gram sabha, composed of all adults in each village.
- These meetings will approve ongoing programmes and financial allocations.
- In brief, the amendment visualises the allocation of funds, functions, and functionaries to these bodies to ensure genuine and effective democratic decentralisation.
The oldest existing statute is the Bengal Districts Act of 1836. It is a statute with a single sentence and says the following, “Power to create new zilas: It shall be lawful for the State Government, by notification in the Official Gazette, to create new zilas in any part of West Bengal”. This is the text as it stands today, not as it was in 1836.
There have been amendments in 1874, 1903, 1920, 1948 and 1950. The parallel legislation still exists in Bangladesh. Two questions follow.
- First, why is such an old statute still on the statute books? Aren’t old laws being cleaned up and scrapped?
- The answer has to do with Article 372(1) of the Constitution. The Bengal Districts Act of 1836 will have to be repealed by the West Bengal Assembly.
- Second, why does Bengal (West Bengal) alone need a specific statute to create a zila (district)?
- The answer probably lies in the way land revenue legislation evolved. Since states can create and change districts, the number of districts varies.
- The 2001 Census had 593 districts, the 2011 Census had 640; the number has crossed 700 now. With that 2011 base, Uttar Pradesh had 71 districts and Lakshadweep had one.
- Though not explicitly stated, more districts are presumably created for administrative convenience and delivering public goods and services better. Take the Upper Dibang Valley in Arunachal Pradesh.
- In 2011, this had a population of 7,984 and a geographical area of 9,129 square kilometres. This makes it India’s largest district, but one with the lowest population density.
- The district headquarter is Anini and you can imagine the distance of other parts of Upper Dibang from Anini.
- When deciding on new districts, there are obvious criteria like population, geographical area and the distance from district headquarters.
- But the right answer isn’t always obvious. Once revenue laws have determined districts, government development programmes work through DRDAs (District Rural Development Agency), at least on the rural side; there are also elected representatives, through zila panchayats or parishads (ZPs) or district councils, further down to blocks and villages.
- Once there is a new district, barring time-lags, there will also be a new ZP, through the relevant state election commission.
- Think of various entities involved in a district’s development — the district collector/district magistrate/district Commissioner, the DRDA, the MP, multiple MLAs and ZPs. Unless they work together, a lot of resources, not just financial, will be frittered away.
- The argument extends lower down, to the gram panchayat, and these have got a substantial amount of resources, courtesy the Fourteenth Finance Commission.
- The standard points about capacity, a lack of devolution of functions, funds and functionaries, convergence and separate cadres.
- Perhaps those are prerequisites before one can answer my question.
- Decentralised planning is meant to start from below and “below” doesn’t mean the district. Gram panchayats/gram sabhas are supposed to have several “planning” functions.
- The intention is to make planning participatory. But unlike the district, and like the block, we don’t have a coherent governance and administrative structure. Unlike even the panchayat samiti, there is no direct link between the executive and the elected in the gram panchayat.
Decentralization should be implemented in letter and spirit especially for a country of size and stature of India. It is important for India to revise and reform the subjects and also encourage the states towards higher devolution via incentivisation..
Connecting the dots:
- Critically analyse the need for a reformed decentralisation framework for India in the age of glocalisation.
TOPIC: General Studies 2
- Separation of powers between various organs , dispute redressal mechanisms and institution
- Structure, organization and functioning of Executive and Judiciary.
‘There is a need for restraint in using Article 142’
The below article deals with the recent judgments of the Supreme Court invoking Article 142 of the Constitution to achieve results of a far-reaching nature, outside the laws governing the issues.
Article 142 provides that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it…”
Article 142 has been invoked for the purpose of doing tremendous good to large sections of the population and indeed to the nation as a whole. The Supreme Court has perceived its role as one which would require it to ‘wipe away every tear from every eye’, but perhaps it is time that the use of this vast, unlimited power included checks and balances.
Separation of Power versus Judicial Activism
According to the doctrine of separation of powers the Legislature, Executive and judiciary have to function within their own spheres demarcated under the Constitution and no organ can assume a function assigned to another. The framers of the Constitution have reposed ultimate trust in each organ to perform its functions as per the duties and powers conferred upon it by the Constitution.
The need for judicial activism, or creative interpretation of laws by the judiciary arises when laws are not framed for purposes or situations which demand the immediate attention of the government or if such laws are framed, they are insufficient to meet the situation.
However, in recent years there has been several judgments of the Supreme Court, wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution. These judgments have created an uncertainty about the discretion vested in the court to invoke Article 142 where even fundamental rights of individuals are being ignored.
Constructive application of Article 142
Below are some of the cases where Supreme Court is lauded for its constructive application of Article 142 in an effort to bring complete justice to various deprived sections of society or to protect the environment.
- Cleansing of the Taj Mahal, whose marble was yellowing on account of sulphur fumes from the surrounding industries. Today, on account of the court’s efforts over a period of years, the heritage has been restored to its original beauty.
- Similarly, undertrials were rotting in jails for greater periods than the maximum punishment which could have been inflicted on them, as their very existence was forgotten by the criminal justice system. With a single stroke of the pen, thousands of them were released.
Stories of miraculous changes brought about to the lives of ordinary people — especially those who, on account of poverty, illiteracy, and ignorance were unable to seek remedies from the courts — were innumerable.
- One of the important instances of application by the Supreme Court of Article 142 was in the Union Carbide case — relating to the victims of the Bhopal gas tragedy — where the Court felt a need to deviate from existing law to bring relief to the thousands of persons affected by the gas leak.
In this judgment, the Supreme Court, while awarding compensation of $470 million to the victims, went to the extent of saying that to do complete justice, it could even override the laws made by Parliament by holding that, “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.” By this statement the Supreme Court of India placed itself above the laws made by Parliament or the legislatures of the States.
However later in Supreme Court Bar Association vs. Union of India. It mentioned that the said article could not be used to supplant the existing law, but only to supplement the law.
Foraying into forbidden territory
However, in recent years, one has come across several judgments of the Supreme Court wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution.
Unfortunately, these judgments have created an uncertainty about the discretion vested in the court to invoke Article 142 where even fundamental rights of individuals are being ignored.
It is argued by the critics that in some of its judgements (given below), the court, in its anxiety to do justice in a particular case or matter, has failed to account for the far-reaching effects of its judgments, which may result in the deprivation of the rights of a multitude of individuals who are not before the court at that time.
- The coal block allocation case: Allocation of coal blocks granted from 1993 onwards was cancelled in 2014 without even a single finding that the grantees were guilty of any wrongdoing. The cancellation carried with it a penalty of ?295 per tonne of coal already mined over the years. Article 142 had necessarily to be invoked. The individuals were not heard on their particular facts, but only their associations were heard. The result was devastating, so far as these lessees were concerned.
- The ban on the sale of alcohol along national and State highways: While the notification by the central government prohibited liquor stores along National Highways only — those abutting the National Highways — the Supreme Court put in place a ban of a distance of 500 metres by invoking Article 142. Additionally, and in the absence of any similar notification by any of the State governments, the court extended the ban to State highways as well.
As a result of the order, thousands of hotels, restaurants, bars and liquor stores were forced to close down or discontinue the sale of liquor, resulting in lakhs of employees being thrown out of employment. It may be noted that the total percentage of accidental deaths caused due to drunken driving, as found by the court from the statistics of 2015, was only 4.2% as against the 44.2% caused by over-speeding.
The Supreme Court had itself held that the right to employment is a basic right traceable to Article 21. However, in its order banning the sale of alcohol along highways, it made no reference to the loss of employment to lakhs of people, a direct consequence of the order.
- The transfer of cases filed against persons accused in the Babri Masjid demolition case: A two-judge bench passed an order which was in the teeth of an earlier three-judge bench decision of the Supreme Court, between the same parties, which was binding on it. Despite the decision of the larger bench, the court was prepared to hold, while invoking Article 142, that in view of the long pendency of the case for 25 years, it would direct that the trial would now stand transferred from Rae Bareli to Lucknow.
Critics argue that the judgment did not merely supplement the law but supplanted it by reason of the binding nature of the three-judges bench decision, which was res judicata between the parties. The trial was in fact nearing completion at Rae Bareli; it would now take at least two years for the examination of a few hundred witnesses at Lucknow before conclusion of the trial, as the charge of conspiracy has also to be gone into.
In Indian Constitution the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the function of another. The doctrine of Separation of Powers has been included in our basic structure doctrine as has been ruled and upheld by the Supreme Court in a number of cases. Thus it holds a position of utmost importance.
Judicial activism may be a welcome measure on in a short run where it helps in maintaining the rule of law and allows one organ to sustain the administration of the country when other organs are not performing. If it is practiced for a long time it may dilute the theory of separation of power and the doctrine of checks and balances.
Over the recent past, however, increasing powers are traced to Article 142 to decide a host of issues that would fall within the domain of other institutions. The exercise of such powers with no one to turn to against such exercise except the very body that had exercised the powers in the first place is certainly not democratic and borders on authoritarianism or at the very least, rule of the intelligentsia.
Article 142 is an extraordinary power to be sparingly used where there is a legislative or executive void and comes into play when the conclusion is founded on statute or law but a remedy has to be created. Surely, its purpose is not replacing the wisdom of other institutions with that of the judiciary.
There is time to institute checks and balances for the Supreme Court to introspect on whether the use of Article 142 as an independent source of power or should be regulated by strict guidelines, so that arbitrariness takes place judicial activism, will remain within the purview of doctrine of separation of powers and checks and balances.
Connecting the dots:
- “Article 142 gives the supreme court virtual license to intervene in any matter whatsoever.” Critically analyze in the light of recent events.
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