1. Discuss the doctrine of separation of powers. With the help of suitable examples, illustrate its significance for a democratic polity.
The doctrine of separation of power means that all the three organs – the legislative, the executive and the judiciary- have been entrusted with specific duties, hence they must act within their defined functions and responsibilities and not cross into the jurisdiction of another organ while performing its duties. For ex: Executive is responsible for the implementation of acts and policies and not legislation. Similarly the Judiciary is meant to uphold the rule of law in the country and should not involve itself in the functions of other organs.
In India, strict separation of powers is not followed as it is followed in the U.S. In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. The doctrine of separation of powers is a part of the basic structure of the Indian Constitution as held by the Supreme Court in Kesvanand Bharti case.
Some of the articles in the Indian constitution which emphasizes the separation of powers are the following:
· 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.
Significance of the doctrine of separation of powers:
It helps prevent the abuse of power within different spheres of government. Within the context of the doctrine of separation of powers the courts are duty bound to ensure that the exercise of power by other branches of government occurs within the constitutional context.
Prevent despotism– As in case of case of emergency period 1975-77, it was the Supreme Court which through judgements like Minerva Mills, 1980 helps restore people’s faith in democratic functioning of the country.
Ensures accountability. The most noticeable example of a check is the power of the judiciary to appraise executive conduct and ordinary laws for the compliance with the Constitution and the Bill of Rights. Judicial review helps keep a check on the exercise of executive and legislative power.
Helps maintain functional autonomy. It helps prevent interference of one organ into functioning of other and thus help avoid chaos. Example- Parliamentary proceedings cannot be discussed in courts and vice-versa.
Guarantees civil liberty. As seen in case of Section 66A of IT Act which was struck down by the Supreme Court on the basis that it is against freedom of speech guaranteed by our constitution.
Increases efficiency of each organ. Member of each organ focus on their own work without the danger of getting interfered by the other. This improves efficiency. Example- Judicial legislation would have been common had the doctrine not been followed, this would have resulted in conflict of interest.
While the Indian polity has more or less maintained the separation of powers, there have been instances of its violation including- judicial overreach, adoption of ordinance route by the government etc. As the doctrine of separation of powers is not codified in the constitution, there is a necessity that each pillar of the State evolves a healthy trend that respects the powers and responsibilities of other organs of the government.
Article 50, of the constitution talks about the separation of power where judiciary, executive and legislative, all the three branches are separate from each other. The doctrine originated from” The Spirit of the Laws” a write up by Charles de Secondat, Baron de Montesquieu.
1) Checks and balances- Each organ checks the other two so as to maintain the equilibrium. Judicial review is an instrument which also becomes basic structure of the constitution allowing the judiciary to repeal the void/ arbitatory laws.
2) Accountability-It one go haywire the other is there to look after. Often we see various cases of judicial activism, for eg asking the govt to go for transparent coal block allocation and restoration of justice as in the case of Uttarakhand dissolving of the legislature without giving time to proof the majority on the floor. SC said “President is also fallible sometime.”
3) Preservation of FR- whether the case of art 66A or the JNU case justice has been restored and passed on to individual.
4) Prevents logjam- speedy and independent procedures are followed.
5) Independency-It give ample space to judiciary to exercise justice since contempt of court is punishable also certain privileges to legislative and executive give them an opportunity to speak out their views. Article 121 & 211 that is no discussion of higher judiciary judge’s act on Parliament similarly article 122&212 judiciary cannot examine the proceeding of legislature is a constitutional separation.
6) Prevent despotism- as in case of case of emergency period 1975-77 where senior most judge was not made CJI and further constitutional guidelines were not followed in declaring emergency.
Certain issues though exist like Judicial overreach, Judiciary and legislative not under RTI and the selection process of judges by the judges (NJAC), use of ordinance route for passing of laws, office of profit cases or judiciary interfering tribunals shows that lot need to be done on the line of USA we need to have separation of power in order of a healthy more transparent democracy.
2. What is right to legal aid? Why is it significant? Examine various alternate dispute resolution mechanisms that ensure fast and affordable justice.
Right to Legal aid is the free legal services to the poor and the needy sections who cannot afford to get the service of advocate to reach courts, judiciary, tribunals. it has been made part of our directive principles of state policy(article 39A) wherein the state shall try to proivde legal aid to the poor and vulnerable
1) Legal aid is one of the means to ensure that the opportunities for securing justice are not denied to any person by reason of poverty, illiteracy, etc. It is free legal assistance to the poor and weaker sections of the society. It promotes accessibility & democratic ethos.
2) Preamble-It upholds the principle of equality and talks about socio, economic and political right.
3) Article 14- It talks about equality i.e. everyone is equal before law.
4) Articles 38- According to Article 38 (1) the State shall strive to promote the welfare of the people and maintin social order.
5) Article 39 A- promotes justice on the basis of equal opportunity so free legal aid so that opportunities for securing justice is not denied to citizens. Same was acclaimed in Maharashtra vs Manubhai Pragaji by SC judgement.
6) Costly & time consuming & safeguard to undertrials since judgement often hinders one to go to court but this provision helps even the weakest to raise voice.
Various alternate dispute mechanisms(ADR)-
1) Arbitration: The dispute is submitted to a tribunal which makes a decision and the award is binding. It is less formal than a trial. there is no right to appeal. Also there is very little scope of judicial intervention.
2) Conciliation: A non-binding procedure in which an impartial third party comes to assistance. It is less formal. If both parties agree the decision shall become binding. ) eg.National legal service Authority-established Lok Adalat, Gram nyayalaya to settle dispute in a expedite manner.
3) Mediation: A mediator is called that helps parties communicate so they can solve the dispute themselves. It leaves the outcome with the parties.Mahila Courts,Village Panchayats,Elders etc
4) Negotiation: It is non-binding procedure. No involvement of third party. It occurs in business, government branches.
5) Order 33 of the Civil procedure court give an individual ample opportunity by not charging the fee and person to be represented by pleader in case one is unable to do.
6) Various tribunals ,ombudsman and fast track courts established to fasten the judgement process.
ADR has proven successful in clearing the backlog of cases at various levels of judiciary, but due to lack of awareness it is not able to relieve the burden of judiciary. National and Legal services authority should disseminate more information on this so that they become a lifeline for the poor.
Q.3 Devolution of political and administrative power mean little if not backed by financial autonomy. Comment
In the quasi- federal system like India with three tiered politico administrative structure Constitutional guarantees like the 73rd and 74th amendments along with legislative backing like PESA have ensured a vibrant diverse with adequate representation of various sections but in order to ensure all round infrastructural and human development proper and timely devolution of funds along with financial autonomy is a must.
Why financial autonomy is needed:
a)The recent CAG report has revealed that sum of 80,000 crore has not been devolved from centre to states from 1996 to 2015 which significantly impacted many of the planned goals.
b) The Mani Shankar Aiyar committee set up in 2013 said that the process of devolution and autonomy has not been understood fully and states and Local bodies have suffered because of it.
c) Centrally sponsored Schemes also with their one size fits all approach have also tied up limited state finances with lack of autonomy to design to address local needs
eg: Tamil Nadu with it excellent health indicators can utilise the funds under NRHM to some other purpose if even the autonomy.
d) Similarly lack of financial devolution from state to Panchayati Raj institutes and Urban Local bodies and inability to generate internal revenues has led to decay of urban sprawls and lack of progress in villages.
e) With the new slogan of competitive and cooperative federalism it becomes more imperative for states to have more financial autonomy to design their own schemes , incentivise workforce and attract investment .
what needs to be done:
Proponents of financial autonomy argue that the recommendations of both Central and State finance commissions be made binding which will ensure both proper devolution and autonomy of finances to states and Local bodies
Mani Shankar Aiyar committees report to grant autonomy in all spheres for gram sabhas to design and implement own schemes needs to be welcomed and it will ensure true and accountable grass roots development.
Judge Isher Ahluwalia committees report on Urban local bodies having freedom to raise own revenue by levy of user fees and sale of municipal bonds has to be implemented across the country.
Hence there is an urgent need for granting financial autonomy to lower tiers of governance to ensure bottoms up development and to realise true meaning of development.
BEST ANSWER: WICCONMAN
In order to reach to the masses and adhere to DPSP welfare state, the govt passed 73rd and 74th constitutional amendment (CA) which was landmark since being first in the entire world.
The CA talked about a three tier govt which one at centre second at state and third at local level so that delegated legislation could be there which should impact the in required manner not one size fit all policy.
The CA added schedule 11 & 12 were some 29 & 18 functions which reflect a more indicative planning.
Though the idea was nuance but for any political and administrative policy to reflect one need huge resources, need authority to do and personnel’s to implement and this all requires huge finances with certain autonomy and accountability.
Financial autonomy helps-
1) One can frame policy & disperse fund according to the finances available.
2) One can go for preventative measures or austerity measure depending upon the need of the hour.
3) Every state has different priorities Kerala & TN need less fund in case of education & health which is is more for UP & Bihar. One needs more investment for business for e.g. Gujarat and other need infra for company’s set-ups like UP & Rajasthan.
4) Funds help us to work on your strength for e.g. NE can go for tourism promotion.
5) The main reason for India’s under development during colonial time was lack to financial, political & administrative autonomy, the reason for not accepting the dominion status was this also.
Missions like Swachh Bharat, entrepreneurship, make in India & ease of doing business (now state can go for MoUs with other countries like Singapore and AP), NREGA, NHM, RTE, infrastructure etc need fund. Recent Finance Commission devolution of Fund to 42% from earlier 32% and converging the CSS & issuing of municipal bonds shows that govt has realize the importance of financial autonomy.
4. Various committees have examined the ecologically sensitive Western Ghats and recommended developmental strategies. Examine those recommendations through the lens of sustainability.
The Western ghats are tropical rainforests that area a biodiversity hotspot. It is a ecological sensitive regions spanning over six states in Indian peninsula. They are in danger due to human encroachment, pollution and climate change.
To protect the western ghats major expert committees have given their recommendations,
1.Madhav Gadgil Committee also called Western ghats ecology experts committee
2.High level working group under Kasturirangan (Kasturirangan committee)
Oommen V Oommen Committee
Gadgil Committee Recommendations:
The Western Ghats Ecology Expert Panel (WGEEP) designated the entire hill range as an Ecologically Sensitive Area (ESA).
The panel, in its report, has classified the 142 taluks in the Western Ghats boundary into Ecologically Sensitive Zones (ESZ) 1, 2 and 3.
ESZ-1 being of high priority, almost all developmental activities (mining, thermal power plants etc) were restricted in it.
Gadgil report recommended that “no new dams based on large-scale storage be permitted in Ecologically Sensitive Zone 1
It specifies that the present system of governance of the environment should be changed. It asked for bottom to top approach (right from Gram sabhas) rather than a top to bottom approach. It also asked for decentralization and more powers to local authorities.
The commission recommended constitution of a Western Ghats Ecology Authority (WGEA), as a statutory authority under the Ministry of Environment and Forests, with the powers under Section 3 of the Environment (Protection) Act, 1986.
Examination of Madhav Gadgil Report
The major criticism faced by Gagdil Committee report was that it was more environment-friendly and not in tune with the ground realities.
Recommendations were sited as impractical to implement.
Gadgil report has asked for complete eco-sensitive cover for Western Ghats which hamper different states on energy and development fronts.
There was criticism against the constitution of a new body called WGEA. States insist that protection can be given under existing laws.
Gadgil report doesn’t give solution for revenue losses due to implementation of its recommendations.
Gadgil report is against dams in Western Ghats, which is a crucial blow on the ailing power sector. Considering the growing energy needs of India, critics argue that this recommendation cannot be taken.
Kasturirangan committee Report Recommendations
Instead of the total area of Western Ghats, only 37% (i.e. 60,000 sq. km.) of the total area be brought under ESA under Kasturirangan report.
Complete ban on mining, quarrying and sand mining in ESA.
Distinguished between cultural (58% occupied in Western Ghats by it like human settlements, agricultural fields and plantations) and naturallandscape (90% of it should come under ESA according to committee).
Current mining areas in the ESA should be phased out within the next five years, or at the time of expiry of mining lease, whichever is earlier.
No thermal power be allowed and hydropower projects be allowed only after detailed study.
Red industries i.e. which are highly polluting be strictly banned in these areas.
Kasturirangan report on Western Ghats has made several pro-farmer recommendations, including the exclusion of inhabited regions and plantations from the purview of ecologically sensitive areas (ESAs).
Examination of Kasturirangan committee Report
The Kasturirangan panel used remote sensing and aerial survey methods for zonal demarcation of land in Western Ghats. The usage of such techniques, without examining the ground reality, has caused many errors in the report.
The power is vested with the bureaucrats and forest officials and not with gram sabhas.
Many fear that the farmers would get evicted if the Kasturirangan Committee report is implemented. Under this report, the mining and quarrying lobbies is expected to flourish. When these lobbies and tourism flourish, it will be disastrous for the environment. There will be water shortage, there will be pollution. Finally, farmers will have to quit the area. They will not be able to do farming there.
The use of “erroneous method” had caused inclusion of many villages under Ecologically Sensitive Areas (ESA) though there were only rubber plantations and no forest land!
Kasturirangan report included ecologically non-sensitive areas under ESA, and left out many ecologically sensitive areas.
Recommendations of Oommen V Oommen Committee
The committee recommended the government to make changes in the clauses of Environmentally Fragile Land (EFL) in the Western Ghats.
The committee adopted satellite survey to determine EFL and even plantations and estates were included in it!
It also recommended to stop land acquisition proceedings according to the Kasturirangan committee report.
The panel has made several pro-farmer recommendations, including the exclusion of inhabited regions and plantations from the purview of ecologically sensitive areas (ESAs). The Kasturirangan report had said 123 villages fall under the ESA purview.
5 . The report said forest areas should be fenced to prevent the animals straying into it.
Now these all reports are available to government and is need to worked on in proper manner, Government has to balance the wheel of environment sustainability and economic development.
5. Do you think according the status of ‘living entity’ to rivers would help in their rejuvenation? Critically analyse.
On March 15, New Zealand river Whanganui became the first in the world to be granted a legal human status. Days after that the Uttarakhand HC had accorded the R.Ganga and R.Yamuna the status of living persons.
It also declared the Director of the Namami Gange project, the Chief Secretary of Uttarakhand and the Advocate General of the state “loco parents” — the human faces to protect, conserve and preserve the rivers and their tributaries.
This means that the rights under part III of the constitution i.e., Art 21 and Art 23 will be applicable to the rivers now.
Benefits of Granting living entity status:
Now Harming and polluting rivers will be legally same as to harming a person. It will also help in preserving the endangered aquatic animals in river ecosystem.
Direct accountability to govt officials to protect and conserve rivers and their tributaries.
Recognition of spiritual significance as for is these rivers living symbol of our culture and civilization.
It will help the govt in cleaning of these rivers especially the Namami Gange Programme.
Issues arising sue to legal status:
Problem of implementation: Discharge of industrial waste into the rivers will not stop overnight, the implementation authorities need more powers to implement the rights
No alternatives: In the absence of any other alternative the municipal sewage and industrial waste will continue to flow into the rivers, this will make the implementing agencies to go easy on the offenders.
Legal confusion: in the absence of clear definition of rights of rivers there is lot of ambiguity and confusion around the judgement.
Legal Burden: The status will encourage many to file cases on behalf of the rivers which will put additional pressure on the already over-burdened judiciary.
Infrastructure hurdles: Construction of dams, power generation units which are crucial for power generation and irrigation will be adversely affected as new projects will be challenged in the court.