SYNOPSIS : IASbaba’s Current Affairs Focus (CAF) Mains 2017: Day 4

Archives 

1.Governor has a constitutional obligation to preserve, protect and defend the constitution. They must not only be fair but also be seen to be fair. Elucidate.

Introduction:

Governor is the head of Executive branch of state under whose name the state is administered. He is appointed by President of India and carries out the administration as per the Indian constitution and acts as its guardian at state level.

Body:

1. Executive powers:

• Appointments: He appoints Chief Minister and other ministers on his behalf, appoints members of PSC, Advocate general, district judges, Vice-chancellors in state, State election commissioner.
• Emergency: During imposition of emergency when state cannot be run as per constitution, he overtakes all executive functions.

1. Legislative powers:

• Regards to bills: Only after his signature, bill becomes a law.
• Ordinance: Promulgating ordinance during recess of legislature.
• Disqualification: He decides on disqualification of members with EC.
• Financial bills: Only with his prior permission money bill can be introduced.

1. Judicial powers:

• Appointments: President consults governor before appointment of chief justice of High court and other high court judges.
• Pardon: except capital punishment and court martial, he can pardon all other sentences.

1. Discretionary:

• Dissolve assembly: On advice of CM, can dissolve the assembly.
• Appointment of CM: when no party gets majority.
• Royalty: Determine amount payable by government to autonomous tribal councils from license for mineral explorations.

1. Special powers:

• Development councils: For Saurashtra and kutch region of Gujarat.
• Law and order: Of Arunachal Pradesh and Nagaland.
• Administration: Of tribal areas of Assam and hill areas of Manipur.

Conclusion:

In performing above functions he has to preserve, protect and uphold the constitution of country. Also in exercising his discretionary and special powers, he should not only be fair but also they should see to be fair.

2. NITI Aayog must serve as a source of new ideas and achieve convergence between the Centre and States for evolving a long-term vision for India. Comment. Also examine its role in driving transformation in India.

Introduction:

NITI Aayog abbreviated as National institute for transforming India was established replacing soviet era Planning commission to take India forward in 21^st century by tackling new age problems and issues. Also to imbibe co-operative federalism from top down approach planning.

Body:

Functions of NitiAayog with respect to creating convergence between the center and state:

• To evolve a shared vision of national development priorities sectors and strategies with the active involvement of States in the light of national objectives
• To foster cooperative federalism through structured support initiatives and mechanisms with the States on a continuous basis, recognizing that strong States make a strong nation
• To develop mechanisms to formulate credible plans at the village level and aggregate these progressively at higher levels of government
• To ensure, on areas that are specifically referred to it, that the interests of national security are incorporated in economic strategy and policy
• To pay special attention to the sections of our society that may be at risk of not benefiting adequately from economic progress

Role in driving transformation in India:

• Strategic and long term policy and programme frameworks and initiatives, and monitor their progress and their efficacy.
• To provide advice and encourage partnerships between key stakeholders and national and international like-minded Think tanks, as well as educational and policy research institutions.
• To create a knowledge, innovation and entrepreneurial support system through a collaborative community of national and international experts, practitioners and other partners.
• To offer a platform for resolution of inter-sectoral and inter­ departmental issues in order to accelerate the implementation of the development agenda.
• To maintain a state-of-the-art Resource Centre, be a repository of research on good governance and best practices in sustainable and equitable development as well as help their dissemination to stake-holders
• To actively monitor and evaluate the implementation of programmes and initiatives, including the identification of the needed resources so as to strengthen the probability of success and scope of delivery
• To focus on technology upgradation and capacity building for implementation of programmes and initiatives
• To undertake other activities as may be necessary in order to further the execution of the national development agenda, and the objectives mentioned above

Conclusion:

NITI aayog has been playing active role in fostering relationship between center, state and local government. It has been able to cater to the functions it has been created for. They have come up with various initiatives like Atal Innovation mission, tinkering labs, various reforms etc. Still a lot needs to be done to achieve the results of its initiatives.

3. The agitation for a separate Gorkhaland state must be brought to a swift end through a solution which meets the aspirations of all the stakeholders. Critically analyse.

In news:

West Bengal’s Darjeeling district has been on the boil over a separate state demand and witnessed widespread clashes recently. Gorkhaland demand has been there for more than 75-80 years. Ongoing for over decades, language is at the heart of the Gorkhaland crisis. Supporters of Gorkhaland want a separate Nepalese-speaking region. Over the years, because of mishandling of aspiration of people and from the beginning of the 20th century, the Gorkhaland demand has been regularly raised. The present crisis in Darjeeling was sparked by fears of Bengali being imposed in schools in the GJM-administered areas where a majority of the people are Nepali-speaking Gorkhas.

Way forward:

• The State government must reach out to the Gorkhaland Jan MuktiMorcha and work out a way to transfer powers to the Gorkhaland Territorial Administration (GTA) as was promised in 2011. Short cuts cannot solve the Gorkhaland issue as it is culturally rooted.
• Take steps to empower the Gorkhaland Territorial Administration.
• The GTA itself needs to strengthen its administration.
• A dialogue must be initiated with those demanding a separate Gorkhaland state and the issue thoroughly examined, and that it should not be kept lingering for long.

Conclusion:

The demand for carving out a separate state, Gorkhaland, from West Bengal is a decades old demand. The issue needs to be handled diplomatically. The cultural divide based on ethnicity and language must be bridged and this can be done only through discussion and engagement rather than violence. The GJM and the state government with the Centre as mediator must come together to bring this issue to a peaceful end.

4. Parliamentary system has had limited success in representing the aspirations of a nation as diverse as India. It has led to debates over the efficacy or rather suitability of the parliamentary system. What are your views on this issue? Should India switch over to presidential system? Critically examine.

SYNOPSIS:

Our parliamentary system is a paradox to vote for a legislature in order to form the executive. It has created a unique breed of legislator, largely unqualified to legislate, who has sought election only in order to wield executive power.

There is no genuine separation of powers: the legislature cannot truly hold the executive accountable since the government wields the majority in the House. The parliamentary system does not permit the existence of a legislature distinct from the executive, applying its collective mind freely to the nation’s laws.

For 25 years till 2014, our system has also produced coalition governments which have been obliged to focus more on politics than on policy or performance. It has forced governments to concentrate less on governing than on staying in office, and obliged them to cater to the lowest common denominator of their coalitions, since withdrawal of support can bring governments down. The parliamentary system has distorted the voting preferences of an electorate that knows which individuals it wants but not necessarily which parties or policies.

Besides, India’s many challenges require political arrangements that permit decisive action, whereas ours increasingly promote drift and indecision. We must have a system of government whose leaders can focus on governance rather than on staying in power.

The presidential system of Government does have a few advantages

• Direct accountability of the President to the parliament and also needs to have a country wide support to get elected rather than few targeted areas.
• The executive, legislative and judiciary are not just separate in powers but in institutions. Each institution derives its legitimacy directly from the people, not from another branch.
• India’s many challenges require political arrangements that permit decisive action, whereas ours increasingly promote drift and indecision.

• India must have a system of government whose leaders can focus on governance rather than on staying in power.

Concerns in the Indian context:

• The notion that the presidential system could lapse into dictatorship took root first during Indira Gandhi’s Emergency in the mid-1970s. It was widely believed that she wanted to adopt the presidential form of government to further her own autocratic reign
• A diverse country like India cannot function without consensus-building. This “winner takes it all” approach, which is a necessary consequence of the presidential system, is likely to lead to a situation where the views of an individual can ride roughshod over the interests of different segments.

• The other argument, that it is easier to bring talent to governance in a presidential system, is suspect Besides, ‘outside’ talent can be brought in a parliamentary system too. On the other hand, bringing ‘outside’ talent in a presidential system without people being democratically elected would deter people from giving independent advice to the chief executive because they owe their appointment to him/her.
• Those who speak in favour of a presidential system have only the Centre in mind. They have not thought of the logical consequence, which is that we will have to move simultaneously to a “gubernatorial” form in the States. A switch at the Centre will also require a change in the States

• A switch over to the presidential system is not possible under our present constitutional scheme because of the ‘basic structure’ doctrine propounded by the Supreme Court in 1973 which has been accepted by the political class without reservation

The present parliamentary system has been tried and tested for nearly 70 years. Rather than change the system, there is a need for reform and cleanse the electoral processes.

5. Government litigation reportedly constitutes nearly half of all litigation in the Indian judiciary. In this light, a new litigation policy is the need of the hour. Examine.

Judicial system in India is in the process of undergoing reforms. However, a National Litigation Policy is long overdue. Both executive and the judiciary have understood the need for such policy.

Why it is necessary to have a National Litigation Policy?

Government litigation reportedly constitutes nearly half of all litigation in the Indian judiciary. It acts as a constraint on the public exchequer. It has also contributed to judicial backlog, thus affecting justice delivery in India.

A National Litigation Policy would reduce the trivial litigations in which the government is also a party and would make the government a responsible litigant, which could use alternate dispute resolution mechanisms to bring an end to various litigations.

The policy also helps to reduce the number of cases, thus reducing the burden of the judicial system, which currently has to deal with a large number of cases. The Supreme Court, since the 1970s, has berated successive governments for being callous and mechanical in pursuing litigation.

The Law Commission of India also studied this problem in its 126th Report in 1988, and made appropriate observations on this front.

Attempts so far:

The Law Minister in the United Progressive Alliance government had launched a “National Litigation Policy” (NLP) in 2010 to transform the government into a “responsible and efficient” litigant. The policy aimed at not only reducing average pendency of cases, but also placing compulsive restraint on the government from approaching courts for petty claims or serious ones.

This concept of a national litigation policy has been explored by other countries as well. The Australian Taxation Office, for example, conducts its litigation in accordance with the PS LA 2009/9 Conduct of Tax Office Litigation, which is an elaborate set of guidelines obligating the government to be a model litigant.

Why it failed?

The policy failed as an initiative due to ambiguity.

The policy is seen as a replete with rhetoric and generic phraseology which has no scope for implementation. Instead of being an analytical policy document attempting to address the causes of excessive government litigation, it appears to have been drafted on anecdotal notions of the problem, with no measurable outcomes or implementation mechanism.

The policy fails to provide a yardstick for determining responsibility and efficiency. The policy then idealistically states that there should be greater accountability regarding governmental litigation, and mandates “suitable action” against officials violating this policy. However, the text does not define this “suitable action”, or prescribe any method to conduct any disciplinary proceedings.

The NLP 2010 also creates “Empowered Committees” at the national and regional levels, apparently to regulate the implementation of the policy. But there is ambiguity about their role and powers, resulting in lack of transparency in their functioning. While these committees are intended to be integral to the accountability mechanisms under the policy, the ambiguity in their roles and functions make them susceptible to a constitutional challenge.

The NLP 2010 also lacks any form of impact assessment to evaluate actual impact on reducing government litigation. This absence of a monitoring mechanism is evident from the fact that there is no data available even today to accurately verify the extent of government litigation in India. Without such evaluation, this litigation policy remains a theoretical, ambiguous and fairly inadequate document on the pretext of policy reform.

What has the new government done in this regard?

The new government at the centre proposed, in September 2015, a national litigation policy for out-of-court settlement of cases among government departments, public sector undertakings and other government bodies. However, no concrete decision has been taken yet in this regard.

The ongoing revision of the NLP needs to ensure certain critical features are not missed out:

It must have clear objectives that can be assessed.

The role of different functionaries must be enumerated.

The minimum standards for pursuing litigation must be listed out.

Fair accountability mechanisms must be established.

The consequences for violation of the policy must be provided.

A periodic impact assessment programme must be factored in.

What else needs to be done?

All the state governments have already notified state litigation policies to reduce government litigation. The law ministry should take up the matter now.

To further bring down pendency of cases in courts, both the Centre and states should withdraw “frivolous and ineffective cases”.

States and central government departments should set up empowered panels and suggest withdrawal of frivolous cases, particularly those of petty offences and traffic challans.

To discourage future litigations, the government should compulsorily introduce arbitration and mediation clauses in work contracts of its staff and public sector employees.

Conclusion:

PM Modi recently expressed greater political will to deal with the problem of pending cases. Now, government response to the problem needs to be much more dynamic and resourceful. A litigation policy can have a profound effect on how the government thinks about itself as a litigant, and can help curb the problem, provided it is a constructed with a thorough understanding of the problem and offers solutions based on evidence rather than conjecture.