1. From where do the emergency provisions in the Indian constitution come from? Compare these provisions with that of other countries.
Part XVIII (Articles 352-360) of the Indian constitution provides for emergency provisions so as to tackle extra-ordinary situations affecting sovereignty and national interest.
Source of emergency provisions:
The emergency provisions in our constitution are mainly borrowed from the GOI Act, 1935
However, the provision for suspension of fundamental rights during emergency has been taken from Weimar constitution of Germany.
On the basis of types of emergency:
India- National Emergency(Article 352) , State emergency/President’s rue (Article 356) and Financial emergency(Article 360).
USA- National and Financial emergency.
Canada- Public welfare emergency, Public order emergency, War emergency etc.
Authority to declare the emergency:
India- Declared by President on the advice of executive.
USA- A state governor or the mayor can proclaim emergency in their respective area of jurisdiction. Federal emergency is declared by President.
Canada- Emergency can be declared by provincial, territorial and municipal governments.
Australia- Each state has different emergency law.
France- State emergency is proclaimed by Council of ministers.
On what grounds:
USA- financial breakdown, natural disasters.
France- threat of terror or terror attacks.
Time period required for approval:
India- to be approved by Parliament within 30 days
UK- 7 days
Canada- Emergency declared automatically expires after 90 days unless extended by the Governor-in-council.
France- It can be declared only for 12 days, post that it can be extended only after approval by the parliament.
To what effect:
India- All fundamental rights except Right to life can be suspended.
USA- The writ of Habeas corpus is suspended.
France- The President assumes unlimited powers and the country politics is transformed into democratic dictatorship.
Thus, it can be concluded that the emergency provision vary from one country to other depending on the political setup. It is observed that unitary polity/constitutions like the UK empowers only the national government to proclaim emergency while federal polity like USA, Australia empowers the provincial and local governments to declare emergency as well. Our emergency provisions are in conformity with the quasi federal nature of our polity with substantial safeguards to prevent abuse.
2. Which major countries of the world have bicameral parliament? How does India’s bicameral system differ from that of UK? Discuss.
A bicameral legislature is one in which the legislators are divided into two separate assemblies, chambers or houses. Bicameralism is distinguished from unicameralism, in which all of the members deliberate and vote as a single group. India is not alone in having bicameral system, as of 2015, somewhat less than half of the world’s national legislatures are bicameral.
US- US Congress is divided into Senate and House of Representatives.
UK- House of Lords and House of Common. Indian bicameral set up was inspired from system though both have differences.
Pakistan- It has Senate and National Assembly
Australia, Canada, France, Japan are other major countries with bicameral set up.
Difference between Indian and UK bicameral system
1) The upper house in UK House of Lords is unelected but Rajya Sabha is elected.
2) The Rajya sabha is much more powerful that House of Lords in their own countries.
3) The Vice President is Head of Rajya Sabha in India but UK does not have Vice President.
4) The member of House of Lords has life long term, Rajya sabha has 6 year term for its members.
5) The Parliament if UK is a Sovereign body but not in India. In India people are sovereign.
6) India a Constitutional republic, UK is a Constitutional Monarchy.
7) Prime minister and most of the other cabinet ministers in UK are from lower house by convention, whereas in India they may be from either house.
Some similarities do exist
1) Leader of the house in lower house of UK and India becomes the Prime Minister.
2) Both have cabinet system of government accountable to the lower house.
Being an elected house, Rajya Sabha enjoys more power than the House of Lords. However, in both cases, the upper house acts as an additional layer of scrutiny and has played indispensible role in legislation. Thus though India has bicameral system like other countries, it has unique features modified to suit its requirements and conditions.
3. DPSPs and Fundamental Duties enshrined in the Indian Constitution have their inspiration from other constitutions of the world. Comment.
Indian constitution is often called as an elective constitution as it is an amalgamative mix of salient features of many of the constitutions around the world devised into a document by the Constituent assembly.
The directive principles of the state policy enumerated under part IV of the Constitution under articles 36-51 cannot be enforced by court of law sourced from Irish constitutions which were in turn sourced from the Spanish one.
The DPSP of Ireland are enumerated in Article 45 of the Irish constitution which are similarly nonjusticiable are said to be a major influence since Ireland also endured similar colonial history says Jurist AEHoward.
In contrast the dynamic nature of Indian Directives, seen in socio economic sphere especially giving it a legal backing in ChampakanDorairajan case(1951) made sure that DPSP (Art 46 non-discrimination) can raise the constitutional effectiveness of Fundamental rights, Irish constitution DPSP are seen majorly as static .
Similarly the DPSP despite their external influence while incorporating them have been rendered uniquely Indian by the influence of Gandhian principles of promotion of cottage industries (Art 43), no intoxicants (47), organisation of village panchayats (Art 39), prevention of cow slaughter (Art 48)
Also addition of DPSPs by constitutional amendments like Free legal aid(Art 39A), Workers participation (43A) and protection of wildlife (48A) by 42nd amendment 1976 have emphasised the dynamic nature of DPSPs to the changing and evolving needs of the society making India a welfarestate in its orientation.
Similarly Fundamental duties which trace their origin from the constitution of erstwhile USSR , recommended by the Swaransingh Committee in 1976 gave rise to Part IVA (Art 51A) which incorporated the Fundamental duties via the 42nd amendment
As the directive principles are addressed to the state, the fundamental duties are addressed to the Citizens. The citizens enjoying the fundamental rights must respect the ideals of the constitution, to promote harmony and spirit of the brotherhood.
The difference in both the duties lies in the objective of incorporating them while the Soviet Union made the duties compulsory and violation of them could cost them a penalty the Indian ones are not compulsory nor a limiting factor but are a gentle reminder to the citizenry of the country about their duties towards the society.
JusticeKurienJoseph says that Fundamental duties are nothing but an extension of the conceptofDharma of Ancient India which are imbibed across generation hence there is no coercion in enforcement or in their following
Thus it can be said though the idea of DPSPs and Fundamental Duties were sourced from outside countries the Soul and theessence of them in theory and practice is uniquelyIndian.
4. What are the key changes in the new policy for oil and gas exploration? Why were these changes introduced? Who will benefit from these changes? Elucidate.
The government has recently released a new policy for oil and gas exploration known as Hydrocarbon Exploration and Licencing Policy. It is aimed to make the best use of country’s limited hydrocarbon reserves so as to reduce the increasing dependance on imports. It replaces the NELP that was in place earlier.
Key changes in HELP
1) Open Acreage Policy- Explorers can bid fro any block from the designated areas
2) Uniform licensing policy- Single license for all type of hydrocarbon exploration like il, gas, methane etc.
3) Change from Profit sharing model to Revenue sharing model
4) Concessional royalty for hydrocarbons explored from difficult areas like deep water
5) Pricing freedom by adopting arms length policy
6) On the tap application
Need for the changes
1) The CAG report criticized the Profit sharing model. In KG Basin deal reliance was reducing their production due to lower oil/gas price hence causing loss to the government.
2) The Kelkar committee report had pointed out issue in contract management in profit sharing deals.
3) Rangarajan committee had suggested adopting revenue sharing model.
4) The open acreage and uniform licensing policy is expected to boost investment in exploration sector.
5) The policy aims to increase domestic production of hydrocarbons reducing dependence on imports.
Who will benefit
1) The government is assured of revenue from extracted hydrocarbon throughout as it does not have to wait for companies to recoup their investments.
2) The explorers have advantage of open acreage policy where they can extract any hydrocarbon under their allotted block
3) Concessional royalty for deep water area will make it attractive.
4) The freedom for pricing will be beneficial for the bidders.
These changes will increase the interest among E&P companies. More competition means better price for the government from bidding. Exploiting local reserves can reduce the import cost which in turn will help the consumer ultimately. Hence, suppliers, facilitators and consumers are benefited from this policy.
5. What are the salient features of the Real Estate Bill? Why was the Bill required? Also discuss the challenges in the enforcement of the proposed law.
India’s notoriously unregulated and highly murky real estate sector characterised by non-transparent paper work and delays got a modicum of hope with the passing of Real estate regulation act recently by the Parliament.
1) It establishes the State Real Estate Regulatory Authority for that particular state as the government body to be approached for redressal of grievances against any builder. This will happen once every state ratifies this Act and establishes a state authority on the lines set up in the law.
2) This law vests authority on the real estate regulator to govern both residential and commercial real estate transactions.
3) This Act obliges the developer to park 70% of the project funds in a dedicated bank account. This will ensure that developers are not able to invest in numerous new projects with the proceeds of the booking money for one project, thus delaying completion and handover to consumers.
4) This law makes it mandatory for developers to post all information on issues such as project plan, layout, government approvals, land title status, sub-contractors to the project, schedule for completion with the State Real Estate Regulatory Authority (RERA) and then in effect pass this information on to the consumers.
5) The current practice of selling on the basis of ambiguous super built-up area for a real estate project will come to a stop as this law makes it illegal. Carpet area has been clearly defined in the law.
6) Currently, if a project is delayed, then the developer does not suffer in any way. Now, the law ensures that any delay in project completion will make the developer liable to pay the same interest as the EMI being paid by the consumer to the bank back to the consumer.
7) The maximum jail term for a developer who violates the order of the appellate tribunal of the RERA is three years with or without a fine.
8) The buyer can contact the developer in writing within one year of taking possession to demand after sales service if any deficiency in the project is noticed.
9) The developer cannot make any changes to the plan that had been sold without the written consent of the buyer. This puts paid to a common and unpopular practice by developers to increase the cost of project.
10) Every project measuring more than 500 square metres or more than eight apartments will have to be registered with the RERA.
WHY SUCH AN ACT WAS NEEDED:
The real estate sector contributes to nearly 9% of our GDP but even then the sector remains highly unregularised, opaque and fluctuating this step is seen as a long pending reform to protect the interest of the buyers and give them a proper appellate structure and will also build more trust in the buyer-seller relationship and being more transparent will benefit the sector in the longer run by bringing in more investment especially FDI and thus benefit the economy.
Strong builder lobby and nexus with bureaucrats and politicians may prevent any meaningful reform from happening
Many of the states are yet to implement the Act in total, state has been full autonomy in implementation many fear will lead to dilution of rules.
In many states, the project may not cover the existing project which may render the reform useless.
Rate of interest in many states like Rajasthan and Maharashtra has been fixed too low which may not prevent the errant builders from finishing the project on time.
Teething issues, since much of the work is Online, there needs to be a robust IT infrastructure to depend upon which may cause delay.
The clause of 70% amount to be held may lead to lack of funds from builders side which may cause further delays.
The definition of post construction defects within 5 years are still unclear in most of the states.
The RERA seen as a long pending reform needs to be implemented fully in order to revive confidence in the sector and boost up revenues in the sector and to be truly transformative both on paper and on the ground.
BEST ANSWER : LINCOLN
The Real Estate (Regulation and Development) Act 2016 was much needed law to regulate the booming real estate sector in the country. It aims to bring in transparency and accountability in the sector.
Salient features of the Act
1) It sets up Real Estate Regulatory Authority (RERA) at state level and Real Estate Appellate Tribunals above it at state level.
2) All projects of at least 500 sq m or 8 flats will have to register with RERA.
3) 70% of the sale proceeds have to deposited in an escrow account.
4) The details of plans etc. have to uploaded on the RERA website. Quarterly progress reports have to published. Any change in plans will needs at least 66% of buyers agreeing to it.
5) Single window clearance have been introduced for projects. RERA will have to decide on application 30 days else deemed approved.
6) Real Estate agents have to be registered at RERA.
7) Violation of provision of Act will lead to imprisonment of 3 years and or penalty of 10% of cost of projects.
8) Builders will be liable for any defects up to 5 years after hand over of the property.
Need for the law
1) Lack of transparency in the project details had affected many buyer due to delay of projects wrong information etc.
2) Housing for All and other projects will see boom in the sector needing strong regulator.
3) Tackles the information asymmetry between builders and buyers.
4) Will help attract investment in the sector due to the transparency.
Challenges in enforcement
1) The enforcement have to be done at state level. Many states have not set up RERA yet.
2) Strong politician builder nexus has lead to diluting the enforcement provisions as seen in Karnataka.
3) It is applicable on on going projects too making things difficult for the projects.
4) 70% of cost in escrow account will leave very less money with builders leading to higher borrowing from banks.
5) The Act is not clear on delays due to permits from other departments like electricity water etc, Builders will be penalised for such delays which should not be the case.
6) Commercial real estate is also under the ambit of the bill adding to regulatory burden. The power asymmetry in commercial sector is less.
RERA is truly a revolutionary Act which will bring in transparency and accountability from builders and empower the buyers. But the dilution of provision have to tackled and hurdles in execution due to other permit delays need to factored in when he Act is implemented.
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