Answers: GS Mains Test Series – 2016 : GS Paper-2 (Set-1)

1.       Why it is often alleged that incorporation of Article 35-A in the Constitution not only bypassed Indian parliament, but also created more discrimination? While discussing its key provisions, critically discuss the grounds on which it was challenged recently in Supreme Court.

A Delhi Based think tank Jammu and Kashmir Study Centre (JKSC) had recently announced to challenge Article 35-A in the Supreme Court. Kindly refer to this page in Wikipedia to understand issue around this article.

Answer

The provisions of this Article grant special privileges and rights to its permanent residents, and not to others living in the State of J&K. A major reason for the debate on the issue is the way Article 35 was amended and Article 35-A was incorporated into the Indian Constitution through a Presidential Order on May 14, 1954, by the Nehru Government without a discussion in the Parliament, whereas it required a Constitutional amendment.

Article 35-A has provisions that allow the J&K Legislature to mercilessly violate the fundamental rights of the citizens of J&K, who are also the citizens of India. This is in total contravention of the Fundamental Rights bestowed upon each citizen of the country by the same constitution.

Besides, Presidential order for adding a new article 35A is not just about simple modifications or exceptions of some provisions of the constitution but amounts to amending the constitution by overriding the power of the Parliament and is hence considered unconstitutional.

In case, this Article would not have been incorporated, the demographic pattern of the State of J&K would have been altered with citizenship rights to1.5 lac migrants and their subsequent progeny. The same would have perhaps altered the contours of the ongoing J&K problem.

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2.       Basic Structure doctrine by the Supreme Court has been often branded as an act of judicial overreach. Discuss critically.

Answer:

Judiciary has been largely playing an “interpretative” role since the 1950s and 1960s. And from 1970s, the Supreme Court, has been the major force standing up against legislative and executive excesses and inactions citing the basic structure doctrine time and again against the other two bodies.

It is been looked upon as a judicial overreach on the part of judiciary resulting in upsetting the balance of power between the executive, legislature and the judiciary and thwarting the true spirit of democracy.

By citing the basic structure doctrine time and again and acting as obstacle in the way of the other two pillars of democracy is a hindrance to the working of democracy. This can be argues with the fact that the legislature and executive are performing their functions efficiently with adequate amount of people participation on the floor of the house as well as putting every decision and bill for comments from the public domain.

Therefore, ideals of democracy of democracy are maintained always by the legislature and executive.  However, a watch must be kept to the extent of guidance and observance of the basic structure but not at the cost of eroding democracy.

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3.       The role and function of the Governor / Lt. Governor is unparalleled in administrative structure. Examine his power position in the light of recent events.

Under Art 168, the Governor is considered a part of the State Legislature wherein the body is responsible for discharging governmental functions. However, the post of Governor has seen numerous controversies. Hence it is necessary for the Governor to Act according to Constitutional proprieties such as –

• Appointment – The Constituent Assembly had provided for nomination and not election of the governor to prevent provincial separatist tendencies.
• Furnishing of information to Governor by CM- The provisions under Art 167 must not be interpreted as giving Governor the right to veto proposals of Council of Ministers.
• Discharging of Executive functions – The governor is not the office for discharging executive functions individually or personally but it is the State government’s responsibility in accordance to Rules of Business under Art 166(3).
• Centre-State relations – The governor should not be influenced by political considerations in reserving bills under Art 200. Here, Punchhi Commission recommendations regarding a fixed time-limit may be adhered to.
• Emergency provisions – The Governor should adhere to SC guidelines laid under SR Bommai Case before reporting to the President regarding imposition of President’s Rule under Art 356.
• Dual responsibility – The SC in Rameshwar Prasad case had observed the dual responsibility of the Governor to Centre and State. Hence, sufficient provisions regarding security of tenure should be provided.

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4.      “Although the distribution of powers between two governmental units (national and regional) appears to be same in both India and United States, yet there are some apparent distinctions between the two.” Explain.

The following are the differences between the United States and India:

• Indian federation is not the result of an agreement between States unlike American federation.
• -There is only one citizenship for both the States and Union in india whereas there is dual citizenship in American federation -one federal citizenship and one state citizenship
• -Each State sends M.P.s to the Parliament depending upon the population of the State in India whereas in American federation each state has equal representation.
• -There are three Lists- Union List-(First List); State List (Second List); and Concurrent List – (Third List). The state can legislate only the subjects of the State List and Concurrent List. The States are not sovereign. The Union can encroach upon State’s Lists whereas in American federation, there is clear division of legislative powers of centre and state and have independent jurisdiction.
• -The Parliament, i.e. Center has been given residuary power whereas in American residual powers rest with state.
• -There is only one Constitution for Union and States in India whereas in American there are constitutions of centre and state.
• -India achieved uniformity in basic civil and criminal laws, except personal laws in some matters but America has civil and criminal laws that vary from state to state.
• -The Indian Union is an indestructible Union of destructible States. The area, identity of a state can be changed by Parliament. The States can be destructible. But the Union cannot be changed. But under American federation, States can separate itself from union.
• -The Central Government has been given the power to form a new State, to increase the area of any State, to diminish the area of any State; to alter the boundaries of any State; to alter the name of any State; and to form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a partnership the of any State(Article 3) whereas in American federation, centre doesn’t have such powers.
• -the Supreme Court has been given very wide powers, including appellate (Civil and criminal) jurisdiction whereas American supreme court have only appellate jurisdiction.

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5.        “There is a grey area which lies between actual sedition law and its implementation in India.” Critically examine the statement giving your view against or in favour of section 124-A of Indian Penal code.

Section 124A Of the IPC relates to Sedition. It reads as ‘Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.’

The Law Commission of India had undertaken a careful re-examination of Section 124A. In its 42nd report, published in 1971, it wanted the section to be extended to include disaffection towards the Constitution of India, Parliament and state legislatures and the administration of justice. It also wanted the punishment to be reduced to a maximum of seven years. While the sentence can be restricted to seven years, there is no reason to expand the ambit of the definition. The present section has stood the test of time and the courts have restricted its application to serious acts that incite violence or create a major law and order problem.

Indeed, the call for its abolition may be incorrect. For instance, there are a dozens of districts in different states facing a Maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution. Against the backdrop of this stark reality, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in certain cases.

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6.      “The DPSPs are seen as aids to interpret the Constitution, and more specifically to provide the basis, scope and extent of the content of a fundamental right.” What role has been played by the Directive Principles of State Policy towards interpretation of the Constitution? Explain and illustrate your answer.

Off late, the Supreme Court has resorted to Part IV of the constitution which relates to DPSPs similar to invoking of articles 14 and 21.  For instance, Article 21 relates to right to life. However, for right to lfife to be experienced in fullest way, an individual must be able to have bare necessities of life such as nutrition, clothing, shelter, education, freely moving about and commingling with fellow human beings. For this fundamental right to be a reality, it is necessary for provisions of DPSPs to be at work wherein the state takes the responsibility to provide to every necessity so that right to life is exercised in entirety.

However, if the DPSPs are interpreted to mean everything, then they will end up meaning nothing.  However, if the Directive Principles serve two distinct roles in judicial interpretation, then it would be right adoption of DPSPs in interpreting FRs. Firstly, Directive Principles meets the “public interest” threshold.  Secondly, DPSPs play a structuring role in selecting the specific conceptions that are the concrete manifestations of the abstract concepts embodied in the fundamental rights chapter.

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7.       “Political opportunism has always prevented the Rajya Sabha from fulfilling the sublime functions for which it was conceived.” Comment Critically.

The constitution envisaged Rajya Sabha as the Upper House of Parliament alongside the Lok Sabha where more informed, civilized and quality debates in comparison to Lok Sabha would take place.

However, in reality it is political opportunism which has prevented Rajya Sabha from fulfilling the functions for which it was conceived.

This is because instead of giving tickets to candidates who can add to the quality of debates by virtue of their work experience or academic qualifications, political parties have largely resorted to electing only “leaders” from within their fold who were unable or unwilling to contest elections to Lok Sabha. Thus, even leaders who are not capable of engaging in quality debates on complicated legislations and holding the executive to account are being elected.

Another flaw with the Rajya Sabha, the domicile factor is hardly been fulfilled in appointing members to the House. Thus, people from outside the state, even those who have no past knowledge of the socio-economic and political scenario of the state, are getting a seat in the Upper House.

Therefore, Political parties should abandon such practices of political opportunism and try to elect deserving candidates from outside the political fold and also as far as possible, from the state concerned.

8.      What do you understand by “restorative justice”? Do we have some kind of legal framework for delivery of restorative justice in India? What improvements would you suggest towards a strong restorative justice delivery under the criminal justice system in India? Discuss.

A formal definition of Restorative Justice is that it is a theory of justice that emphasizes repairing the harm caused by criminal behaviour. It is best accomplished through cooperative processes that allows all willing stakeholders to meet, although other approaches are available when that is impossible. This can lead to transformation of people, relationships and communities.

On the recommendation of the Committee on Reforms of Criminal Justice System (2003), India adopted “plea bargaining” under Code of Criminal Procedure to take out from the system cases punishable up to seven years of imprisonment for negotiated settlement without trial.

Restorative justice is a welcome idea particularly in the matter of juvenile justice, property offences, communal conflicts, family disputes, etc. What is needed is a change of mindset, willingness to bring victims to the centre stage of criminal proceedings and to acknowledge that restoring relationships and correcting the harm are important elements of the criminal justice system.

The foundational principles of restorative justice must be followed in sincerity:

• Crime causes harm and justice should focus on repairing that harm.
• The people most affected by the crime should be able to participate in its resolution.
• The responsibility of the government is to maintain order and of the community to build peace.

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9.      Differentiate between Insolvency and Bankruptcy. Discuss the changes proposed in Insolvency and Bankruptcy Code 2016 and its expected outcomes.

There is a very thin line of difference between Bankruptcy and Insolvency. Insolvency is a financial situation and bankruptcy is a legal condition. Insolvency may or may not lead to bankruptcy.

The code consists of a clear speedy mechanism for early identification of financial distress and initiate revival/re-organisation of the company if it is viable. The bill proposes a timeline of 180 days to deal with the applications for insolvency resolution with an option of extending it by 90 days for exceptional cases. The code also contains provisions for a fast-track insolvency resolution process for certain categories of entities where the resolution process has to be completed within 90 days with a window for a one-time extension of 45 days. There are two separate adjudicating authorities: The Debt Recovery Tribunal (DRT), which has jurisdiction over individuals and unlimited liability partnership firms. Appeals from the order of DRT shall lie to the Debt Recovery Appellate Tribunal (DRAT). The National Company Law Tribunal (“NCLT”), which has jurisdiction over companies, limited liability entities. Appeals from the order of NCLT shall lie to the National Company Law Appellate Tribunal (“NCLAT”). The code also proposes to set up Insolvency and Bankruptcy Fund.

Once the code will come into place it will minimize the problem of delay as there are strict timelines within which the case has to be disposed off. The code will also consolidate the existing laws thus making the process simpler. Easy exit option is anticipated for sick firms and insolvents. It will help improve the ease of doing business in India.

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10.   Critically examine the implications of Lokpal and Lokayukta (Amendment) Act, 2016 on the NGO sector in India. Do you think that this amendment would be able to bring increased transparency in NGO sector which is known for its opaqueness? Discuss various hurdles.

The Lokpal and Lokayuktas Act, 2013 (LLA, 2013) has been amended to include the functionaries and office bearers of NGOs for disclosure of various informations. The LLA, 2013 is an Act intended to regulate and control corruption in public institutions. However, NGOs which are generally private institutions for public purposes, have also been included within the purview of LLA, 2013 under certain specific circumstances.

The amendment of 2016 pertains to sections 14(g) and Section 14(h) of the LLA, 2013. The implication of these two changes would be:

• Any NGO receiving more than Rupees 1 crore grant annually will now be covered under the amended law.
• Any NGO receiving more than Rupees 10 lakh annually from foreign sources under FCRA 2010 will now be covered under the amended law.

However, civil society and NGO activists look at this amendment as an “unnecessary intervention” by the government, which would create disruptions in the working of trusts, societies, charitable and non-profit organisations. Experts state that the provision of intimating asset details will discourage senior philanthropists and social workers from participating in social development services. However, over all, it appears to be a welcome move as it will ensure transparency and accountability on the part of the NGOs.

11.    Do you agree with the view that the provision of discretionary jurisdiction of Supreme Court (under article 136) has led to clogging up the justice delivery system? While citing some examples to support your view, critically discuss if it is possible to define limitations on the exercise of discretionary jurisdiction vested in the Supreme Court?

The Supreme Court in Mathai @ Joby vs. George has lamented over the abuse of Article 136 of the Constitution whereby unscrupulous litigants approach the Supreme Court at the drop of a hat, thereby clogging up the justice delivery system. The Supreme Court has held that there is an urgent need to address the issue and has accordingly placed the matter before a larger bench for framing guidelines for entertaining Special leave petitions under Article 136 of the Constitution.

Article 136, no doubt, states that the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

However, it is not mentioned in Article 136 of the Constitution as to in what kind of cases the said discretion should be exercised.

Hence, some broad guidelines need to be laid down now by a Constitution bench of this Court otherwise the Apex Court will be flooded with all kind of special leave petitions and the functioning of the Court will become impossible.

In Tirupati Balaji Developers Pvt. Ltd. vs. State of Bihar, it was observed that Article 136 is an extraordinary jurisdiction vested by the Constitution in the Supreme Court with implicit trust and faith, and extraordinary care and caution has to be observed in the exercise of this jurisdiction.

12.    Critically examine the key features of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill, 2015 was introduced in Lok Sabha in 2015. The Bill enables the creation of commercial divisions and commercial appellate divisions in high courts, and commercial courts at the district level.

The Act aims to provide a window of 60 days within which the parties can file an appeal against the order of the Court. Appeals would be filed before the Commercial Appellate Division of the appropriate High Court. The Act also states that the Appellate Division shall strive to dispose of the appeal within six months. The Act Further states that the parties can appeal only against specified types of interim orders passed by the Commercial Courts and Divisions.

The Act appears to be a piece of legislation which seeks to reduce the amount of delay in high stake commercial matters. However, the Act has been criticized because new resources aren’t used to create the Commercial Divisional Courts and this could lead to further delays in matters which do not fall under the ambit of the Act. The Act aims to support Makin in India and also boost the ease of doing business in India. For this to work out fruitfully, the loopholes must be tackled with.

13.     “The Representation of Peoples Acts have been amended for several times, often witnessing a progressive improvement in the election process and sometimes reflecting the tussle between the executive and judiciary.” Discuss Critically.

The RoPA,1951 aims at smooth functioning of the election process by keeping a check on corruption practices as well as qualification and disqualification of MPs and MLAs.

Many amendments have taken place since its implementation with the abolition of election tribunals. Some noteworthy amendments include:

• Insertion of section 126A which banned exit polls. Exit polls had a huge impact on the elector. There were Claims of paid news channels putting false exit poll results, thereby affecting the process of election. Banning it was a major step in strengthening democracy
• Repealing of section 8(4) which allowed convicted MPs and MLAs to stand for elections by filing a complaint. It put a hold on corrupt leaders finding way into the Parliament thereby instilling a sense of integrity
• Insertion of Section 62(2) which allowed a person in detention to contest elections as he’s no longer ceased to be an elector as his name is included in the electoral roll except for conviction in certain cases. This measure gives the opportunity to rectify the mistakes as well as make his vote play a pivotal role in election process.

Various other amendments have been made time and again in the RPA Act. These amendments surely deepen the pillars of our democracy as well as considers the fundamental rights of the individual with utmost importance. When the people are represented well, the Nation will be represented well. Therefore, the tussle between the executive and the judiciary must be overlooked for a bigger goal which aims at strengthening democracy.

14.                What are the issues and constraints in the State Funding of Elections in India? Do you think that India should make efforts towards complete state funding of Elections? Examine the pros and cons of the same.

State funding of elections has been suggested in the past in response to the high cost of elections and as a measure against corruption in the electoral process. Starting from Indrajit Gupta Committee on State Funding of Elections (1998) to Law Commission of India Report on Electoral Reforms (2015) have commented on the aspect of state funding of elections.

The major advantage as cited by the Indrajit Gupta Committee is that it establishes a fair playing field for parties with less money. However, on the other side of the coin, the State funding has neither cleaned the corruption, nor freed the political parties of their financial burden. With mounting expenditure on the Central and State Governments, State funding would be an additional financial burden on them.

Most of the committees have suggested that India should go for partial state funding.  However, State funding may succeed only when it is total and not partial, because there is no guarantee that even after it was introduced, rich parties and candidates would not pump black money into campaigns to boost their chances of victory. Partial funding leaves scope for the party to use its funds for campaigns of individual candidates would fail to prevent the use of black money.

However, state funding is not a panacea. It is necessary to adopt other measures, irrespective of whether State funding is provided or not.

15.    Discuss various provisions for the linguistic minorities in the constitution of India. Do you think that there are adequate explicit and implicit provisions in the constitution towards protection of linguistic minorities? Discuss.

A linguistic minority is a class of people whose mother tongue is different from that of the majority in the state or part of a state. The constitution provides for the protection of the interests of linguistic minorities.

Article 29 of the Constitution of India provides explicit guarantees for protecting the interests of minorities:

• Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
• No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Having stated the right of minority peoples to maintain their own language and culture, the Constitution adds on the explicit protection of the rights of minorities to provide their own education in their own language, certainly an important part of language maintenance details this right along with protection against discrimination in the receiving of government grants for education.

Besides these general safeguards, the Indian Constitution includes a section titled Special Directives where language and education issues beyond simple protection for minorities are explicitly addressed. Article 350 guarantees the right of all people to use a language they understand in “representations for redress of grievances.

16.   Why the calorie based model of estimation of poverty has been discarded in recent approaches? Discuss.

Average per capita calorie intake has been extensively used to assess the extent of poverty in India. The 1993 Lakadawala Committee used this approach and fixed a threshold daily calorie intake per capita at 2,400 and 2,100 calories for rural and urban populations, respectively. This approach has been discarded now because of several limitations of this approach.
Firstly, the most important limitation of this approach is that there is hardly any consensus on the subsistence calorie threshold. Then, there is a change in calorie norms over time, which makes it harder to press for a uniform calorie threshold. Secondly, this threshold calorie approach also does not take into account the non-nutritional attributes of the food such as taste. It is not the calorie content that makes a householder select her food basket, taste also matters a lot. Thirdly, it has been indicated that there is not a very strong link between the income of a household and calories consumed by members of this household.

Therefore, following the calorie based method could be rather an arbitrary approach to estimate the poverty line.

17.    Discuss various measures taken in India for filling the gulf of regional disparity in India.

Disparities in economic and social development across the regions and intra-regional disparities among different segments of the society have been the major impediments for India.

Governments from the past to the present have taken up various measures to address the gulf of regional disparity in India which makes a Bharat within India.

Some of the measure date back to the Nehruvian era which introduced the concept of 5 year planning after India became Republic. The most recent 11th and 12th five year plans have been focussing on inclusive growth, which itself is an indication of government’s effort to curb regional disparity.

Back ward regions like Bihar, Orissa have got special status and funds to address the developmental requirements.

There is also the issue of Naxalism in backward states, for which the government sanction specific packages to get them within the mainstream society.

Besides that, development schemes like Indira Awas Yojna, Sarva Siksha Abhiyan, Mid-day Meal Scheme and MGNREGA are serious efforts taken by the government to address the regional disparity gulf.

Lastly, the concept of CSR has been doing its bit to address the regional disparity gap.

18.   What are the opportunities and challenges created by the mega-regional trade agreements such as TTIP and TPP for India? Discuss various policy options for India.

The TTIP accounts for about 60 per cent of global trade where about 30 per cent is global trade in goods and 40 per cent is global trade in services. TPP will encompass 40 per cent of global gross domestic product (GDP) with a population of 800 million. Both agreements intend to emphasise greater trade openness. These mega RTAs create opportunities and challenges for excluded countries like India. Potential effects are that India may sustain loss in market access due to exclusion from preferential treatment and unattainable higher trade standards. India can take these challenges and transform them into opportunities for serious economic growth and development. India will have the opportunity to update and upgrade its domestic regulations on tariffs and non-tariff issues, reach out to new markets and perhaps benefit from an increase in global economic growth. For India to gain the greatest benefit from these opportunities, it will require a balanced approach between market liberalisation and support for domestic industries.

Therefore, to counter the mega regional bodies, India must exhibit friendly investment environment and exit policy and also increase the FDI limits in various sectors. Bureaucratic hurdles need to be lessened and favourable domestic market would be justified.

19.   “The merger of Ministry of Overseas Indian Affairs with the Ministry of External Affairs, though pragmatic, has been construed as a negative step.” Discuss while keeping in focus the current government’s policy stance towards Indian Diaspora.

The main reason for the merger was to avoid “duplication” of work as most of the work of MOIA was done by Indian missions abroad. Also the merger is expected to increase efficiency in MEA’s emergency work abroad.

The current government has made the diaspora a centre piece of foreign policy. Numerous meetings are addressed and India’s priorities and needs are projected by the government officials on their visits. However, the government of the day has not been able to address their demands or announce any new plans for removing their grievances like travel issues and protection of their properties in India.

The West Asia is in turmoil and there have been fall in oil prices. This has caused fears of a massive return of Indian nationals. This will have a bearing on the job market. States must be prepared with plans for rehabilitation of Indians, with the possibility of offering the same kind of jobs they were doing abroad.

The recent move of merging the two ministries is a welcome move for the government as it will reduce the duplication of works and increase the staff availability. But from the diaspora perspective, the move seems to be disheartening as the ministry had a special focus on the diaspora.

However, the merged ministry must be able to pay similar effort on the diaspora which the erstwhile MOIA was paying.

20.  Discuss the composition, role and functions of the GST council.

The GST council is the key decision-making body that will take all important decisions regarding the GST. It will have representation from the central government as well as all the state governments.

The GST council will be chaired by the Union finance minister with a state finance minister as deputy chairman. All the state finance ministers along with the minister of state for finance in charge of revenue at the centre will be part of this council.

The council will have the last say in finalizing the shape of the GST. It will finalize the tax rate under the GST as well as the revenue threshold for traders to be exempt from this tax. It will make recommendations on the taxes, cesses and surcharges that will be subsumed by the GST. It will also decide if and when petroleum and petroleum products will come under the GST’s ambit.

The council will also decide which goods and services will be exempt from the tax to protect the common man as well as the fine print of the sharing of administrative duties between the central board of excise and customs and the state tax officers.