SYNOPSIS: IASbaba’s TLP – 2018: UPSC Mains General Studies Questions [27th November 2017]- Day 6

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Q.1) What is ‘doctrine of separation of powers’? How it has been enforced in India? Discuss.

Approach:

In Introduction, mention what is Doctrine of Separation of power. In body part, split it into two parts, first part write how there is separation of power. Here don’t use too much articles, it’s a GS answer. Then in second part mention there is over lapping.

Background

The French scholar Montesquieu pointed out that placing power in the hands of only one organ or group in a government entails tyranny. Assigning a different function to each organ and creating exclusive functions for them counters the concentration of powers and makes this doctrine a success.

Points to be covered

Indian Constitution doesn’t explicitly mentions about the doctrine, though it has been considered a part through basic structure principle, post Keshavnanda Bharti case.

Examples of separation

• Article 50: Constitution mentions about separation of power i.e. state shall take steps to ensure separation.
• Non-interference of judiciary: on working of legislature or executive i.e. judiciary cannot get into advise tendered by COM to president or proceedings of the house.
• Non-interference of Legislature: Except while moving removal motion against Judges. They cannot discuss conduct of judges.
• Legislature and Executive: Though executive is part of legislature, there are provisions to insulate legislature from interfering into working of executive except to ensure accountability.
• Appointments: No role of legislature or executive in appointment of Judges or vice versa.

Examples of overlaps

• Legislature- Delegated legislation, President is head but works on advice of CoM, impeachment. Passing of contempt charges. Removal of judges.
• Executive- Part of legislature, ordinances making.
• Judiciary- Judicial interference in rules formulation, legislation of bills in name of basic structure, constitutionality etc.
• Tribunals: Non judicial persons are appointed in tribunals to award charges.

Conclusion

Indian model is not a strict separation like in USA but is a system of checks and balances where each organ has separate core functions while overlapping in few functions, to keep abuse of power in check.

Connect the dots

• Judicial overreach
• Parliamentary control over executive

Best Answer: SHIVANI 

The constitution of India embraces doctrine of SEPARATION OF POWER in an implied manner. Although the concept of separation of power is not explicitly mentioned, our constitution includes provisions for reasonable separation of powers and functions between three organs of government.

PROVISIONS RELATED TO FUNCTIONAL SEPARATION OF POWER IN INDIAN CONSTITUTION:
1 ARTICLE 50 – State shall take steps to separate judiciary from executive.
2 ARTICLE 122 and 212 – Validity of proceedings in parliament and legislatures cannot be called into question in any court. This ensures immunity of legislatures from judicial interventions.
3 ARTICLE 121 and 211 – Judicial conduct of judge of supreme court and high court cannot be discussed in parliament and state legislatures.
4 ARTICLE 53 and 154 – Executive powers of union and state shall be vested in president and governor and they enjoy immunity from civil and criminal liability.
5 ARTICLE 361 – President and governor shall not be answerable to any court for the performance of powers and functions of his office.
FUNCTIONAL OVERLAP:
The doctrine of separation of powers is not strictly followed in India. Following points make it clear:
1 Legislature exercises some judicial functions like impeachment of president, removal of judges etc.
2 The heads of each governmental ministry is a member of legislature. Thus making executive an integral part of legislature.
3 Under some circumstances, president performs legislative functions like issuing ordinance, formulating laws during emergency. President performs judicial functions too like like granting pardon etc.
4 The tribunals and other quasi judicial bodies which are part of executive also

discharge judicial functions.
5 Higher judiciary supervises the subordinate courts. It also acts as legislature while making laws regulating its conduct.
INDIA BEING A PARLIAMENTARY DEMOCRACY DOES NOT FOLLOW AN ABSOLUTE SEPARATION OF POWERS, AND IS, RATHER BASED UPON FUSION OF POWERS, WHERE A CLOSE COORDINATION AMONGST ORGANS IS UNAVOIDABLE.

2. How does the legislature control the functioning of the executive? What are the issues arising of the existing mechanism of ‘check and balances’ in Indian polity? Discuss.

Approach:

As you can see, the question has two direct parts.

The first part deals with the legislature control over Executive. If you start explaining this part itself, it can take more than 200 words. So in an answer you need to be very careful as to how much importance you are giving to one part. Do not write about control of judiciary in this part.

In second part you need to write about the issues faced in India regarding ‘division of power’ amongst different pillars of our democracy. In this part you can write a point or two on judiciary as well as the question is open ended.

Synopsis:

Indian polity works on the principle of ‘Checks and Balances’ and separation of powers. But separation of powers in India is not absolute. In India Executive is part of Legislature and legislature controls the functioning of executive in following ways:

Administrative Control: Administration is the duty of executive. Legislature brings to the notice many important issues through Zero hour, question hour, adjournment motion etc.

Legislative Control: Whenever a bill is introduced by a minister, opposition scrutinizes it and proposes amendments. It helps in controlling the power of executive and prevents the conversion of democracy into a dictatorship.

It also has the power to pass a no – confidence motion against the government and impeach the President, The head of the Executive. (Many of you have not mentioned this point.)

Financial Control: Parliaments keeps a check on the spending of the government as in how much amount has been spent and on what. It is mandatory for government to get the Budget passed in the Parliament.

Government also has to pass money bills and financial bills.

Government cannot withdraw any money from the Consolidated Fund of India without the permission of Legislature.

Issues with ‘Checks and Balances’:

Broadly if you analyse this question the problem arises when interference of one organ increases in the working of another or one organ tries to ignore the role of other and supersedes other.

Some of the examples are –

Negative role of opposition in governance process – This is being observed since last 15 years that opposition is not playing a constructive role in discussion while wasting time of parliament by walking out and boycotting the house.

This way bills are not passed and the process is delayed.

Increase in Ordinances – Executive is avoiding the parliamentary procedure and passing the laws through the process of ordinance.

Guillotine – many clauses are passed without discussion on them.

Quality of Debates – The quality of debate has been deteriorated and questions are asked with an intention to blame the government rather than social welfare.

Judicial Review and Judicial Overreach

Judicial Recruitments

Whip – Use of whip hinders the individual thinking of an MP and it is mandatory for the person to act strictly according to the ideology of the party on any issue.

Connecting the Dots:

Similar to the issues in separation of powers, the Constitutional provisions for Indian federalism and issues faced by Indian federalism can also be asked. Frame some points for that too.

Note: More points can be added to this list but keep in mind that it should depict the problem in separation of powers or ‘Checks and Balances’. Many of you have mentioned the problems of democracy which is not apt in this case.

Best Answer 1: Shivani

Legislature and executive, both are organs of government , assigned different functions. A strict separation of a power is not followed in India, rather, both work in cooperative way. Mechanism of check and balance gives power to different organs of govt to keep check on each other. Legislature also keeps a check on executive through following ways

1 LEGISLATIVE CONTROL – While enacting any law in parliament, govt needs to explain all its provisions and answer questions asked by MPs

2 FINANCIAL CONTROL – Govt is required to pass budget and financial bills in both houses of parliament.Govt cannot withdraw money from consolidated fund without approval of parliament

3 COLLECTIVE AND INDIVIDUAL RESPONSIBILITY – Whole council of minister is responsible to loksabha for any step taken by any minister. Even minister is answerable individually to loksabha. If loksabha does not approve the act, whole cabinet has to resign

4 PARLIAMENTARY DISCUSSIONS – Zero hour , question hour adjournment motion etc are available to legislature to control executive

5 PARLIAMENTARY COMMITTEES – Committees like public account committee holds executive accountable
6 CONSTITUTIONAL BODIES – CAG reports to parliament, Finance commissions reports are also tabled in parliament by president

ISSUES ARISING OUT OF EXISTING MECHANISM OF CHECKS AND BALANCES
Following issues shows how the mechanism of check and balances has weakened over time

1 ISSUE OF ORDINANCES – Ordinances are used as a method by executive to curb legislative control ex -Land acquisition bill etc

2 PASSING OF BILLS AS MONEY BILLS – Executive has used this route to pass important bill in case consensus is not achieved ex Aadhar bill

3 LACK OF EXPERTISE OF PARLIAMENTARY COMMITTEES – These committees consists of legislators and hence lacks expertise

4 LACK OF MEANINGFUL DEBATES IN HOUSE – Due to technical nature of bills, ill preparedness of legislators, excessive use of guillotine etc

5 FREQUENT USE OF WHIP PROVISIONS UNDER ANTI DEFECTION LAW – Prevents lagislators to voice their concerns

6 CASE OF JUDICIAL OVERREACH – judicial overreach undermines parliamentary role and judiciary assumes role of super parliament

Apart from the above mentioned cases, issues like appointment of large no of legislators as parliamentary secretary, direct involvement of legislators in executive works under MPLADs and MLALADs also weakened the mechanism of check and balances. There is need to ensure effective implementation of check and balances , which is crucial for sustaining the democracy.

Q.3) What are tribunals? How successful are tribunals in India? What reforms are needed to make tribunals an effective dispute resolution mechanism? Suggest.

Approach:

• Explain briefly about tribunals
• Mention about the successfulness of the tribunals, can take your stand and substantiate your answer accordingly
• Suggest some reforms for effectiveness of the tribunals

Introduction:

The word tribunal implies a judicial or quasi-judicial body with a lesser degree of formality than a court, to which the normal rules of evidence and procedure may not apply, and whose presiding officers are frequently neither judges nor magistrates. Private judicial bodies are also often styled ‘tribunals’. In general sense, the ‘tribunals’ are not courts of normal jurisdiction, but they have very specific and predefined work area.

In India tribunals were added in the Constitution by Constitution Forty-second Amendment Act, 1976 as Part XIV-A, which has only two articles viz. 323-A and 323-B.

• While article 323-A deals with Administrative Tribunals;
• article 323-B deals with tribunals for other matters.

The basic objective of administrative tribunals is to take out of the purview of the regular courts of law certain matters of dispute between the citizen and government agencies and make the judicial process quick and less expensive.

Successfulness of Tribunals:

The experience of India during the past two decades and more has demonstrated that the tribunals have an effective role to play in a country which has embarked upon a programme of rapid socioeconomic change.

Some tribunals like the Company Law Board, the Income Tax Appellate Tribunal and the National Green Tribunals (NGT) have been doing good work and their disposal rates are quite high. “NGT’s orders in particular have had the biggest impact in recent times. For example,

• Its direction to not renew the registration of vehicles older than 15 years and the removal of diesel vehicles older than 10 years has had a huge impact.
• Even its order restraining sand mining has curbed the menace of illegal sand mining to some extent.

However, there are some issues facing by the judiciary, as the pendency at these tribunals has defeated the purpose for which they were created – as parallel to the high courts, issues are:

• Drew attention to the low rate of disposal of cases by tribunals and
• He emphasized on the need to ascertain whether these institutions were delivering justice or were acting as a “barrier” to it.

Tribunals vis-a-vis regular Courts rightly created a lot of buzz and was reflective of the concerns of jurists, lawyers, litigants and bar associations over the functioning of Tribunals. The Tribunals in their present form do not inspire confidence of stakeholders and end up as post-retirement sinecures or a case of ‘dangling carrots’ rather than the noble aim of rendering justice in the form of public service to the community.

In order to restore public faith, the following reforms appear worthy for the effective functioning of tribunals:

• The correct function of Tribunals should remain to supplant and filter out cases for the superior judiciary and not to replace it. Other than highly technical matters, Tribunals can at best function as fact-returning bodies of experts leaving adjudication of disputes to regular Courts.
• Tribunals may not be allowed to be seen as post-retirement sinecures. An orientation capsule should be introduced for non-Judicial members.
• Members of Tribunals should be provided the best possible facilities and also members should be given the security of tenure but without the system of reappointment.
• Since “reduction of burden” on Courts and “quicker dispensation of justice” was ostensibly the aim of Tribunalisation, a stringent provision for time-bound redressal must be incorporated in all statutes dealing with Tribunals.

Conclusion:

Perhaps the real need for tribunals is in highly specialised areas. They should only be set up for very specialised areas of law that require technical expertise on a given subject matter such as telecommunications, patents, securities markets and not simply to reduce the burden on the courts.

Best Answer: sandhaya

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4. The CAG should only delve into the propriety and mathematics of a policy or decision. By being prescriptive, the CAG only exceeds its constitutional mandate. Critically comment.

Approach:

The answer must have following parts-

• A brief introduction on CAG.
• Its constitutional mandate.
• Describing the conflict between constitutional mandate and it being prescriptive.
• CAG should involve into propriety of decision or policy or not.
• What should be way ahead?

Background:

Article 148 of the constitution provides for an independent office of the CAG of India.
CAG is the guardian of the public purse and audits the entire financial system of the Central as well as State governments. CAG presents three reports, audit report on appropriation account, audit report on finance account and audit report on public undertaking, which are further examine by the public account committee.

Conflict:

The role of the CAG came into question in 2011 when the then prime minister, told that the CAG was going beyond the assigned role in law by delving into policy. This was said in the background of some CAG observations on policy regarding the allocation of 2G telecom spectrum and the allotment of the Krishna-Godavari gas fields.

CAG should involve in performance audit:

• Usage of public fund for private expenditure- in public-private partnerships, for corporates. Thus, being guardian of private purse it’s the duty of CAG to keep an eye on such spending.
• CAG’s insights into issues like demonetization if taken positively will help government to get more informed decision.
• In the Munimji judgement, Supreme court observed that the CAG’s function to carry out examinations into [economy, efficiency and effectiveness with which government has used its resources is inbuilt in the 1971 Act. The apex court held that the CAG was something more than an auditor of a company or corporation, and could comment on the efficacy of the government’s policy decisions.

CAG should not carry out performance audit:

• Such revelations hamper the functioning of the government.
• Allegations are raised regarding the difference between actual figures and the proposed figures.
• Leads to negative image regarding government in public eyes as well as globally.
• CAG is ought to make auditor functions and not supposed to suggest policy measures.
• The role of CAG is restricted to auditing and it is not supposed to perform the functions of comptroller as is the case in UK.

Way forward:

• CAG should strive to adopt suggestive approach rather than prescriptive. It can use its reports as means to suggest future course of action.
• Government need to see CAG as a mentor and use it to strengthen itself and plug financial leakages. This approach can go a long way in improving service delivery to public which is ultimate goal of both bodies.

Conclusion:

On one hand, misappropriation or diversion of public funds shouldn’t be tolerable in democracy and on the other hand constitutional bodies aren’t expected to perform duties exceeding its constitutional mandate. Moving ahead what is required is central and state government complementing CAG’s efforts.

Connecting the dots:

A balance answer should be written. Taking definite stand (yes/no) should be avoided in such questions as each of the dimension (CAG being prescriptive and not being so) has positive and negative aspects to it.

Best answer: ANSHUMAN MATHUR

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5. The pendency of huge number of cases in different courts of India demands a revolution in the field of alternate dispute resolution. Comment. What steps have been taken in this direction? Discuss.

Background:  Addressing a gathering of lawmakers, members of the judiciary and eminent jurists, with Lok Sabha Speaker Sumitra Mahajan, Chief Justice of India Dipak Misra and Union minister of state for law and justice, PP Chaudhary, in attendance, President Kovind insisted that the alternate dispute resolution mechanisms available under the Indian judicial system “have to be looked at very seriously, including in their ability to prevent matters from coming into the courtroom at all.”

Approach:

• Question is a mix of two important issues i) Judicial Case Pendency ii) Role of Alternate dispute resolution in reducing this burden.
• Write about the no. Of pending cases in judiciary and some reasons in brief.
• Link issue with alternate dispute resolution and write ADRs utility and benefits.
• Provide how revolution in ADRs is needed, improving their effectiveness while suggesting some measures.
• Write down steps taken in this direction.

Introduction:  Justice Dispensing System in India has come under great stress for various reasons of which one is huge pendency of cases in various courts. . The Indian Judiciary Annual Report 2015-2016’ and ‘Subordinate Courts of India: A Report on Access to Justice 2016’highlighted that a whopping 2.8 crore cases are pending in district courts across the country. Judiciary needs an alternative mechanism to resolve the cases in a time bound manner.

Body:

As per the Law Ministry accumulation of first appeals, continuation of civil jurisdiction in Higher Courts, appeals against orders of quasi-judicial forums going to High Courts, rising number of appeals, frequent adjournments, indiscriminate use of writ jurisdiction constitutes majorly the pending graph. In order to resolve these pending cases a revolution is needed in ADRs.

Arbitration and mediation: These include arbitrators/ Mediators who help the two opposing parties reach an amicable solution out of court.

Lok Adalat : To provide settlement of disputes in an informal atmosphere. Both parties are present but without a counselor in front of the judge to reach a solution.

Gram Panchayat: To solve petty cases at village level. Instead if dragging cases in the court year after year, cases are resolved quickly.

Family Court: Especially for the purpose of marital disputes, divorce cases, guardianship of wards, etc

Mahila/ Bal Nyayalaya: Made for the purpose of settlement of cases which are specific to problems such as eve teasing, acid attacks, etc or juvenile cases in Bal Nyayalaya.

Though these are of great help certain problems are still in place,

Lok Adalat cannot decide case on merit.

Certain cases go for appeal in higher court, etc

Many gram nyayalays lack in proper infrastructure.

Steps taken to make ADRs an effective mechanism in delivering justice

1. Power has been conferred upon the courts so that it can intervene in different stages of proceedings. But these goals cannot be achieved unless requisite infrastructure is provided and institutional frame work is put to place.
2. A Scheme of Holding of Lok Adalats as an “Alternative Grievance Redressal Mechanism” for speedy disposal of industrial disputes has been made indispensable part of the adjudication system.
3. Several legislative and administrative initiatives have been taken including separate benches for Trade disputes, Tribunals and Lok Adalats etc
4. In order to bring revolution in effective justice delivery mechanism. The institutional framework must be brought about at three stages, which are:
5. Awareness: ADR literacy program is being done for mass awareness and awareness camp is being organised to change the mindset of concerned disputants, the lawyers and judges.
6. Acceptance: In this regard training of the ADR practitioners is being made by some University together with other institutions. Imparting training is being made a part of continuing education on different facets of ADR as far as judicial officers and judges are concerned.
7. Implementation: For this purpose, judicial officers are be trained to identify cases which would be suitable for taking recourse to a particular form of ADR.
8. Setting up of Mediation Centres in all districts of each state with a view to mediate all disputes have brought about a profound change in the Indian Legal system. These Mediation centres have started functioning with an efficient team of mediators who are selected from the local community itself.
9. Not many Indians can afford litigation. This kind of state of affairs makes common people, especially rural people, cynical about judicial process. The ADR mechanism has bridged the trust deficit. Gram Nyayalayas have been empowered to process 60 to 70 percent of rural litigation leaving the regular courts to devote their time to complex civil and criminal matters.
10. More and more ADR centres is being created for settling disputes out-of-court. ADR methods have the potential to achieve the objective of rendering social justice to the people, which is the goal of a successful judicial system.

Conclusion: With the increase in population and advancement of technology, new complexities have stemmed up which will only increase the pendency rate in judiciary. Thus it is very important to promote ADR mechanism, which will help in providing justice in the quick time and thus will help in achieving one of the objectives of our preamble i.e Equality in justice.

Connecting the dots:

Both the issues focussed are important and can be asked separately. Many voices being raised in this direction by President and CJI etc,You can be asked to relate this issue  with the need for national litigation policy.

Best Answer:  Gurpreet Singh

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