Big Picture, GS-2, Indian Polity, Public Admin 2, Uncategorized

Developments in Arunachal Pradesh: Row over Governor’s role

Watch debate here!

Summary:

Arunachal Pradesh is headed for a constitutional crisis, with the governor’s office accused of favouring the Congress’s rebel MLAs and the BJP in the state. According to experts, Governor Jyoti Prasad Rajkhowa’s decision to advance the winter session of the assembly by a month and issue directions to vote on a resolution calling for the removal of the speaker at the first sitting of the House, with the deputy speaker in the chair, suggests a clear case of gubernatorial overreach.

Background: What happened?

Controversy erupted in the state when Governor Rajkhowa advanced the winter session of the assembly to December 16 from January 14, 2016 which evoked strong protest from the Congress-led state government and also several mass-based organisations. The governor called the session with directives to Deputy Speaker T Norbu Thongdok to preside over it and take up the impeachment motion notice served by 11 BJP and two Independent MLAs against Speaker Nabam Rebia. Previously, the Speaker in an order had disqualified 14 rebel MLAs from the House on the clause of anti-defection.

Present situation:

The Speaker of the state assembly had approached the Gauhati High Court with a writ petition and following which the court stayed till February 1 the Governor’s order to advance the Assembly session, describing the development in Arunachal Pradesh as disturbing.

How Governor defends himself?

The Governor defends himself by saying that he has power to summon the House under Article 174 (Clause 1) of the Constitution and he has the power to summon the House as and when he deems fit.

Supreme Court’s observations in such cases:

Article 175 does empower the Governor to address and send messages to the House or Houses (in states with a Legislative Council). The Governor can send messages “whether with respect to a Bill then pending in the Legislature or otherwise”, and the House “shall with all convenient despatch consider any matter required by the message to be taken into consideration”. However, as held by the Supreme Court in many cases, the power of the Governor is not absolute. He is bound to act on the advice of the state cabinet.

In Union of India vs Valluri Basavaiah Chaudhary (1979), a Constitution bench held that the governor is a “constitutional head of the state executive, and has, therefore to act on the advice of the council of ministers”. The governor has the power to summon, prorogue and dissolve the assembly under Article 174, but here again, the apex court has said that he is bound by the advice of the council of ministers.

Observations made by the Gauhati High Court:

  • The Gauhati High Court has suspended the governor’s directive until February 1. The court has observed that the governor, as the constitutional head of the state, is bound to act on the advice of the council of ministers.
  • The high court has come down heavily on Arunachal Pradesh governor JP Rajkhowa saying his action of preponing the Assembly session on the demand of opposition MLAs “taints” the decision and renders it “unworthy of the state’s constitutional head”.
  • The court has also observed that the power of the Governor to send message to the House was with respect to a pending bill in the House and this power under Article 175(2) cannot be utilised to send message on a pending resolution for removal of the Speaker and “hence this appears to be an act of exceeding the jurisdiction.”

Arunachal Pradesh has a legislative assembly of 60 members, and in the last Assembly election in 2014, the Congress emerged with an absolute majority, having bagged 42 seats. The party was followed by the BJP with 11 seats and People’s Party of Arunachal, PPA, with 5. Two independents also returned. The PPA subsequently merged with the ruling Congress, leaving the latter with a comfortable 46 members.

Editorials, Pub admin 1, Uncategorized

Public and Private sector

The debate about reforms pivoted on one central axis. What should be the role of the public and private sectors in development? This debate is not as simple as ideological purists think. And the mere rolling back of the licence-permit raj in areas of industrial production was only a small part of this debate. Admittedly, much of the energy of the debate has shifted from a concern about the role of the public and private to a concern about proper regulation of the private. This is all for the good. But you get the sense that thinking about the role of the public and private has become extremely ad hoc.

Just take one example, in the apparent ideological moorings of this government. It should be obvious to most that this government, contrary to the myth supporters had created, does not believe in disinvestment of state-owned companies. It has no intent of meeting even the disinvestment targets it had set itself for fiscal reasons. Quite the contrary, it seems to believe that with the right bureaucratic intervention, public-sector companies can be turned around. Certainly, some companies can. But it would take a peculiar obtuseness to argue that in some areas, disinvestment cannot be a good thing. The opportunity cost in terms of finances and human capital of the state running things that are unnecessary for it to run are still huge. Yet there remains an immense 1970s-style commitment to the public sector in areas of production.

On the other hand, the two areas where you would expect the public to take a lead role, health and education, are on a galloping privatisation trajectory. Much of this is due to state failure. But a lot of the failure was almost deliberately induced to create opportunities for politically connected education entrepreneurs. Just the list of politicians who run educational institutions will point to this fact. But whatever the political-economy story, we still have a curiously schizophrenic view of the private sector’s role in this area. On the one hand, we want it to bear the load of state failure: It should perform the public sector’s role.

On the other, the private sector should bear costs and be burdened by excessive regulation. The ostensible rationale for this is the following: Normatively speaking, education is a right that should not be dependent on the ability to pay. This aspiration is correct. But how do you square that with the idea of private education, where ability to pay will determine what you can access to some degree? Our answer: We will impose more regulation, more price controls (as the All-India Council for Technical Education is now proposing), more control over selection mechanisms. So what we want is a private economy with extensive price controls? Price controls can work in some areas but as a generalised principle, a price-controlled private sector is a bit of an oxymoron — with probably moronic outcomes.

But what the state cannot get itself to honestly answer is why so many students are at the mercy of the private sector. The state is willing to put all its energies into running loss-making airlines, reviving defunct fertiliser plants. But it cannot commit itself to infusing new energy in public education, at all levels. If you destroy public university after public university, the private sector will laugh all the way to the bank. And then, in response to an outcry, we will pretend that regulation of the private sector can produce social justice. In retrospect, it is truly extraordinary how much energy, focus and moral piety has been expended on “regulating” private education in India.

Yet proportionately, so little political effort has been expended to improve public education. It is a pipe dream to think that we can build a good, equitable education system without a major revival of public universities and government schools. And a strong public system will automatically “regulate” the private system by reducing demand. But it is a sign of how warped our thinking on the public and private has become that we are happy to hollow out the public where we should not, and regulate the private in ways that are counterproductive.

The increasing confusion over the role of the public and private has many sources. Some of it is ideological mystification: We thought reform meant rolling back the state, not building it in some areas. This has become a self-fulfilling prophecy to the point where we do not recognise the potential within the public system. Some of it had to do with political economy. The whole logic of public-private partnerships was driven not entirely by the idea of efficiency gains but the creation of new forms for rent-seeking. This form of entanglement of state and capital ended up corrupting both.

Crony capitalism backed by the state delegitimised capital as well. The dividing line between an anti-corruption movement and an anti-private-sector sentiment became very thin indeed. The confidence that the Indian private sector, particularly its big players, was ready to play by anything other than crony capitalist rules has diminished. In fact, it has so diminished that RBI Governor Raghuram Rajan has to rightly give them sermons on just how low the legitimacy of capital is in India. Part of the confusion also came from a certain kind of laziness. We just assumed that wherever the state fails, the market will automatically provide the answer. Less went into thinking about the conditions under which each works. The 2009 financial crisis rightly led people to rethink regulation. But it was also used as a convenient excuse to pretend that the role of the public and private had been settled.

But the net result is a deep consensus that there is little point in having a debate around the role of the public and private, based on first principles, our recent historical experience, and the appropriateness of particular institutional forms to producing particular kinds of goods. So all the things that a public system should ideally produce — law and order, basic social rights like health and education — are increasingly privatised but with ad hominem and corrupt regulation. It is a good thing that this government ideologically does not believe in defeatism about the state. But it has done little to restore clarity on the roles of the state and the market, the public and the private.

– See more at: http://indianexpress.com/article/opinion/columns/private-sectors-rbiraghuram-rajan/#sthash.DmslOAeF.dpuf

GS-1, GS-2, GS-3, Pub admin 1, Public Admin 2, Social Issue, Uncategorized

A compilation of state-level good practices

Good Practices Resource Book 2015, focusing on social-sector delivery.

By “social sector” one often means education and health. (child protection, education, environment, financial inclusion, food security and public distribution, health, infrastructure and development, local governance, social security, water and sanitation, and women’s empowerment — have a broader “social security” canvas)

One, child protection

Sampark (Odisha).

Two, education

  1. Migration cards (Gujarat),
  2. Porta cabins (Chhattisgarh),
  3. Pratibha Parv (Madhya Pradesh);
  4. Saakshar Bharat (Andhra Pradesh).

Three, environment

  1. Avadi sewage treatment plant (Chennai),
  2. Dhara Vikas (Sikkim),
  3. environment management (Andaman and Nicobar Islands),
  4. forest produce tracking system (Karnataka),
  5. integrated basin development and livelihood promotion (Meghalaya),
  6. lake restoration (Rajasthan and Karnataka),
  7. well recharging (Kerala),
  8. air quality forecasting (Delhi),
  9. plastic waste management (Himachal Pradesh).

Four, financial inclusion

  1. panchayat banks (Jharkhand).

Five, food security and public distribution

  1. e-PDS (Andhra),
  2. Annashree Yojana (Delhi),
  3. e-Uparjan (MP).

Six, health

  1. care project for the chronically ill and infirm (Kerala),
  2. healthcare for all (Sikkim),
  3. decentralisation of ICDS (Odisha),
  4. Indira Bal Swasthya Yojana (Haryana),
  5. preventing vision loss in premature infants (Karnataka),
  6. malaria protection for pregnant women and children (Odisha),
  7. NRHM improvements (Assam).

Seven, infrastructure and development

public transport (Mysore).

Eight, local governance

  1. 24X7 metered water (Punjab),
  2. entitlement-based district planning (Bihar).

Nine, Social security

  1. Aam Aadmi Bima Yojana (Andhra),
  2. rehabilitation of manual scavenging (Uttar Pradesh),
  3. land deeds to tribal people (Tripura),
  4. placement-linked skill development (Jammu and Kashmir),
  5. early intervention for disability (MP).

Ten, water and sanitation

  1. community-managed water supply (Gujarat),
  2. open defecation-free villages (Jharkhand).

Eleven, women’s empowerment

  1. joint house ownership by husband and wife (Maharashtra),
  2. organic rice production (Maharashtra).

if you are looking for PDS delivery in Chhattisgarh or Bhoomi in Karnataka and cannot find it, that’s because those have been docketed in other years.

Good practices often originate in districts, sometimes even in blocks and villages. Consider the rehabilitation of manual scavenging. This is listed against UP, but is really a Badaun district initiative: “The Daliya Jalao initiative was a result of the combined efforts of the district magistrate and the district administration of Badaun, with the support of the local community…” It’s now being tried in 15 other UP districts.

 

 

Editorials, GS-2, Indian Polity, Public Admin 2, Uncategorized

Extreme justice is often injustice

While television anchors have harangued us about how juvenile crime has risen by 47 per cent, they have failed to inform us that actual juvenile crime is still less than 2 per cent of reported crime figures.

Second, most of it is non-violent crime and often the result of vagrancy. Most importantly, most children in trouble with the law come from extremely poor backgrounds and are often runaways from hunger and abuse at home. Does this most vulnerable section of our society require legislation to keep it from being a menace to the rest of us?

Harsh legislation is a cheap fix for politicians to douse public anger at events. But harsh laws do not diminish the problem, nor do they protect future victims.

  1. TADA [Terrorist and Disruptive Activities (Prevention) Act] and POTA [Prevention of Terrorism Act] did not end up reducing terrorism, but they ended up empowering lazy policing.
  2. The Act to prevent atrocities on Scheduled Castes often ends up as a vendetta tool in government employment.
  3. Section 498A of the Indian Penal Code, which was introduced to combat dowry-related crimes, has been so abused that the Supreme Court had to step in to regulate its blatant misuse;
  4. Criminalising cheque bouncing has resulted in our criminal courts being flooded with cases from financial institutional lenders and magistrates ending up as recovery agents.
  5.  Yet, we as a society, keep clamouring for harsher laws, which politicians enact to escape being targets of outrage. We fail to heed Irish statesman, author and political theorist Edmund Burke’s dictum that “bad laws are the worst sort of tyranny”.

The new Act has made possible the trial of a young offender as an adult if he or she is accused of a heinous crime. Heinous crime is defined as crime that carries a sentence of imprisonment for seven years or more under any law.

A variety of acts, including non-violent crimes such as forgery, or even crimes of incitement such as sedition, attract a prison term of seven years or more. Under the new law, a stone-pelting teenager in Kashmir or a teenage purveyor of counterfeit currency from Kanyakumari is as likely to be treated as an adult criminal.

From the policeman who makes the arrest, to the Juvenile Justice Board that takes the call on whether to allow prosecution as an adult, large amounts of discretion will necessarily operate. Those who can afford it can and will challenge any decision to prosecute in higher courts. The result is more likely to be greater uncertainty, and lesser justice, as criminal trials get stalled by appeals to superior courts.

“Extreme justice is often injustice,” wrote dramatist Jean Racine, and an India that disempowers the loneliest, the lost and the last will be a much harsher place. Whether safety lies in the path of harshness, or in effective implementation of existing laws, is a call for the republic to take.

Q“The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2015 ignores the reality of juvenile crime and disempowers the most vulnerable section of our society.” Critically comment. (200 Words)

GS-2, Indian Polity, Public Admin 2, Uncategorized

Issues related to Police

Following are the issues which need to be discussed in the conference (DGP Conference in Kutch):

  1. Collection and analysis of preventive intelligence:

The most important and challenging task faced by the law enforcement authorities and intelligence agencies today is the collection and analysis of preventive intelligence and follow-up action, especially pertaining to terrorists and insurgents who pose a constant challenge to internal security.

  • While there’s a dire need to improve the capability of the intelligence-collection machinery and upgrade its resources, the intelligence-sharing mechanism leaves a lot to be desired. Our intelligence, collected by state and Central agencies, still sits in silos.
  • Apart from the fact that it’s often not analysed properly, the mania for getting credit drives the organisation having the intel to follow it up even if it doesn’t have the wherewithal.
  • Our efforts in setting up the Natgrid, to build a secure sharing platform, have remained tied in knots despite huge investments.

The DG/IG conference needs to discuss and find a way out of the current situation and lay down a roadmap for establishing a robust intel collection and sharing mechanism.

What needs to be done?

  • The Central intelligence agencies have to strengthen their capabilities and also help states upgrade their machineries for collecting both human and technical intelligence.
  • States also need to pick up on generalised inputs flowing to them and work on specific information, rather than ignoring it all as vague and non-actionable.
  1. Criminal Investigation:

The other important, but badly neglected, aspect of policing is criminal investigation. Standards have declined sharply in the last few years. Unfortunately, the so-called premier investigation agencies like state CIDs and the CBI are no exception.

  • Apart from investigations and conclusions of trials taking an abnormally long time, these tend to fall flat in court, often attracting the judiciary’s wrath. On the other hand, investigation is no longer a coveted job in the states.
  • The fate of cases involving terrorism is no better. Several cases investigated by special units/ agencies have not only ended in acquittals but also resulted in courts posing serious questions as to the veracity of the evidence presented and the procedures adopted.

The directors general and inspectors general of police attending the conference need to discuss and debate this situation to find urgent remedies. They also need to examine existing laws and procedures and suggest modifications and measures for improvement.

  1. Vacancies:

Central investigation agencies like the CBI, the National Investigation Agency (NIA) and the Enforcement Directorate continue to have huge vacancies, as officers from states are not willing to join and sister agencies are staffed with officers from the Central armed police forces.

  • Even the apex court’s direction to fill these posts and experiments like additional remuneration have not yielded the desired results. This is unfortunate, and it can’t be allowed to persist.
  • The conference may discuss whether a system whereby certain posts in the investigative wings of states are financed by the Centre and states are obligated to depute a fixed number of officers to Central agencies could be the way out.
  • These officers may revert to the states after five or six years, taking with them valuable investigative experience.
  • A system of fast-track promotions — based on merit determined by a limited competitive exam — for officers recruited at the sub-inspector level, who have put in a certain minimum amount of service, may be another solution.

Even, most states have a huge number of unfilled vacancies. They tend to fill these on the eve of elections and train personnel in facilities arranged in an ad-hoc manner.

  1. Outdated arms and equipments:

Most state police forces continue to use obsolete equipment and arms, and lack the latest technology that would help in investigation and intelligence-gathering.

  • State governments haven’t considered it their responsibility to apportion a part of their budgets to upgrade police capabilities, even though law and order is their domain.
  • They need to realise that investing in better law enforcement will yield dividends in the form of more economic investment and development.
  1. Lack of Organisation:

There are no organisations to provide the police forces with tested and dependable specifications on equipment and technology. They are generally dependent on vendors, who often sell outdated or not-so-suitable technology.

  • Though the Bureau of Police Research and Development (BPR&D) has been tasked with this responsibility, it hasn’t been able to fulfil this need.
  • The conference needs to discuss a mechanism, under the BPR&D and with the involvement of organisations like the DRDO, the IITs, IISc, etc, to help decide on specifications for equipment as well as identify and develop the latest technology to be inducted at regular intervals.
  • IIT Bombay’s effort to set up the National Centre of Excellence in Technology for Internal Security, with assistance from the department of information technology is a right step.
  1. Lack of proper training:

Well-trained and motivated human resources are key to any police force’s success. But, most training academies are poorly staffed and often don’t have the necessary facilities. Institutions need to be upgraded in terms of facilities, equipment and technology.

  • There’s a need for advanced personnel planning and commensurate training facilities.
  • The best officers must be encouraged to join as trainers. It must be mandatory for personnel, including officers, to undergo in-service training before promotion.
  1. Involvement of state administrators:

While the DG/IG conference is attended by the Union home minister and senior ministry officials, it doesn’t involve chief secretaries and senior officers of the state home departments.

  • This is peculiar since law and order and investigation are state subjects. Any recommendations or decisions arrived at cannot be implemented without the express support of state administrations.

Conclusion:

The state police forces and the Central armed police forces have been facing several problems and confronting new challenges. To tackle these, a dynamic national strategy and farsighted policies are required that go beyond state boundaries. The DG/IG conference should, therefore, serve as a platform for serious thinking on issues confronting the police. It is necessary to provide impetus to senior officers to make an objective assessment of where they stand today and what they are required to do in the next five years to meet the complex challenges of policing and internal security.

GS-2, Public Admin 2, Uncategorized

Misdiagnosis of the Rajya Sabha malfunction

Mohammad Tahir representing Bihar in the Constituent Assembly during the debate on the Constitution on July 28, 1947 said that

“the Upper House is a creation of imperialism” and argued that independent India did not need it.

To which Gopalaswami Ayyangar, replied that “the role of the Upper House is merely to delay legislation which might be the outcome of passions of the moment until the passions have subsided”. It was obvious even to our founding fathers that the “House of People” (Lok Sabha) can fall prey to passionate rhetoric and thus felt a need for a “House of Elders” (Rajya Sabha) to instil calm.

Next is this false narrative of indirectly elected members of the Rajya Sabha having veto powers over the members of the Lok Sabha who are direct representatives of the people.

In our first-past-the-post electoral system where a political party can form a government without the majority of citizens voting for it, legislation passed by the Lok Sabha may not necessarily represent the views of the majority. It then becomes even more pertinent and critical to have an active and vibrant Rajya Sabha.

That the Rajya Sabha would an indirectly elected body and would act as a balance to certain whimsical legislation of the people’s representatives in the Lok Sabha was a conscious design of our founding fathers. If anything, this need has only been exacerbated with creeping majoritarianism in the current Lok Sabha. The inability to build consensus by a ruling party cannot be disguised as opposition obstruction.

The need to build consensus in both Houses of Parliament to pass legislation should be the guiding principle of our parliamentary democracy.

Then, there is the argument that the Anti-Defection Act, which immediately disqualifies any member of Parliament who either changes political parties mid-way or disobeys the whip of her party, aggravates the chances of a dysfunctional Parliament.

The core principle behind the Anti-Defection Act is to prevent horse-trading on the floor of the House and penalise members who succumb to temptations from opposition parties. This principle still remains very relevant for a large, diverse polity such as ours, with a large number of regional parties.

The Lok Sabha recently held a discussion on a private member’s bill to de-criminalise certain Section 377 of the Indian Penal Code. There was no whip issued by the major parties and members voted according to their choices, many times contrary to their party colleagues.

The choice of when to issue a whip rests with the party. The Anti-Defection Act in itself cannot be made a villain for an internal matter of political parties over degrees of freedom to be given to their members for voting in Parliament.

Scope for reform

There is clearly a need for new rules to prevent productivity of the entire House being held hostage by a few members rushing to the Well. There has to be an outlet for opposition members to voice their protests without disrupting productivity. One suggestion is to have designated day(s) in a week on which the opposition can raise, discuss and debate issues rather than the government dictating the order of business every day of the session. There can be innovative ways to create a framework within which the right to protest is not taken away but is done constructively.

Read Less check and more balance, another good article

Q.  “The Upper House is a creation of imperialism and independent India did not need it.” Critically comment.

GS-3, Public Admin 2, Uncategorized

‘Smart’ to ‘sensitive’ policing

In 2014 Modi shifted DGP conference’s permanent venue from Delhi to Guwahati for the first time since its inception in 1965, where he spoke on

  1. S-Sensitive and Strict,
  2. M-Modern and Mobile,
  3. A-Alert and Accountable,
  4. R-Responsive and Reliable,
  5. T-Techno savvy and Trained” police.

This year PM said-

“sensitivity has to be vital element of policing. Police forces should establish strong links with local community and connect with people.”

Need of police reforms on following parameters-

  1. Reforms needed at PS (police station) level,
  2. raising competitive spirit at PS level,
  3. reviving beat constable system to collect information,
  4. improving behavior of policemen, maintaining cleanliness at PS and winning confidence of vulnerable sections,”
  5. “Initiative towards SMART policing,”
  6. “Inter-state police coordination and bringing symmetry in police insignia/uniform,”
  7. “Changes needed in laws/procedures to improve investigation and prosecution.
  8. Improving coordination among prosecution, investigation and judiciary,”
  9. woman safety and tourist police.
  10. Need of police university and Forensic Science University like in Gujarat (Gujarat Forensic Science University, and the Raksha Shakti University, to upgrade quality of police training )

Achilles heel of the Indian Police is the inadequately staffed, under-equipped, and soulless police station, something that has brought ignominy to the whole force. At very few police stations, even now, can you get a complaint registered without greasing the palm of the station house officer or his minions. This is shameful but true.

what we need is not more policing, but what can rightly be called “smart” policing. There are limits to government spending on the police. The latter should learn to utilise available sources with the greatest skill and economy, and not fritter them away in wasteful exercises.

Centre and State lists-

“Police” is a State subject under List II, Entry 2 of the Seventh Schedule of the Constitution. (“Public Order” is one entry ahead in the same list and schedule.)

This is a rigid distribution of powers, something that our founding fathers debated extensively and settled for. They believed that the States comprising the quasi-federal structure needed control over the police if they were to be truly effective in maintaining public order.

As things stand, the Centre cannot create a police force which enjoys powers conferred by the Code of Criminal Procedure (CrPC). (The constitutionality of the National Investigation Agency under the Union Home Ministry is a matter of debate.)

This is why all paramilitary forces like the Border Security Force, Central Reserve Police Force and Central Industrial Security Force are not police forces in the real sense of the term. They have only limited powers of arrest and detention, and they ultimately depend on the State police for their day-to-day operations. Even the Central Bureau of Investigation has to get the consent of the State government to exercise powers of investigation outlined in the CrPC when it operates in a State. This is why the Centre and the States will have to work in harmony and beyond considerations of politics.

Unfortunately, the past few years have been rough. There have been specific instances involving senior Indian Police Service (IPS) officers serving in the States, who were pushed into controversy for no fault of theirs. Instances such as States not releasing IPS officers for Central deputation, and the Union Home Ministry snatching away IPS officers from States without the latter’s consent, have all caused a lot of friction and embarrassment. Yet, if you ignore these as mere aberrations, there is a generally healthy relationship between New Delhi and the States in the matter of strengthening the police, especially in times of crises.

This is how it should be in a civilised democracy. There is an acute need to divorce politics from policing.

Q.  “The Achilles heel of the Indian Police is the inadequately staffed, under-equipped, and soulless police station, something that has brought ignominy to the whole force.” In your opinion, what needs to be done to change this image of police in India? Critically discuss. (200 Words)

GS-2, Indian Polity, Public Admin 2, Uncategorized

Court-monitored CBI probes: Is judiciary overstepping its brief?

Observation made by Parliamentary Committee —

  • Parliamentary committee has raised a question on increasing number of court-monitored CBI probes. It states apex courts have started performing the functions of the lowest rung of criminal justice system, taking over the role of a magistrate.
  • At present, many high-profile cases like 2G spectrum case, Vyapam Scam, Coal Block Allocation Scam, Virbhadra Singh corruption probe, Shardha Chit Fund Scam etc. are being monitored by SC and several other HC.
  • Committee also slammed establishment of special CBI courts in states saying it is leading to dual judicial system which is not contemplated under Constitution.

Watch Rajya Sabha TV Debate here

Why do we need monitoring of Judiciary?

  • Investigating agencies like CID, CBI and others are under constant pressure from political masters and this affects the investigation. If SC-led monitoring didn’t happened, cases like 2G, Coal Block Allocation Scam etc. would never have come to the surface. Credibility of investigation agencies is therefore always under doubt w/o monitoring of courts.
  • Moreover, when a leader of opposition comes under scan of investigation, his party demands for independent monitoring of investigation under apex courts.

Why there must be no monitoring by Judiciary?

  • Under Article 22 of Indian Constitution, right to free & impartial trial has been given to the accused and he is considered to be innocent until proved guilty, i.e., a presumption of innocence is given to him to constitutionally. For this judiciary must be totally neutral and must give fair chance to the accused to prove his innocence.
  • But if investigation of a case is started under apex courts, this infringes the right of accused as under same judiciary whole investigation has happened and same judiciary will try him in the end.
  • Parliamentary Committee observed if monitoring, ordering of investigation kept on happening under apex courts there is clear danger of inversion of pyramidical structure of governance provided under the constitution.
  • Therefore, monitoring under apex courts cannot be the institutional answer to independent monitoring of investigation.

 

Way forward —

  • Power given to courts for interfering, ordering and monitoring the investigation by CBI or other is institutional power and has been given by parliament. But daily-basis of monitoring must be checked as it not only infringes the right of accused but also over-burdens the judiciary. Judiciary can’t monitor every investigation.
  • Therefore, we need a constitutional answer and Lokpal can be the answer for monitoring the investigation, free from political intervention.
  • In US, a different kind of approach is being followed. After Watergate Scam, US broughtIndependent Counsel Act in which Federal Court establishes an Independent Counsel which will be responsible for investigation and prosecution. Funds for the independent Counsel are provided by Federal Court.
  • For independent and impartial investigation we need independence of police from political masters. Police Reforms has been ordered by SC in 2006 but unfortunately nothing has been brought yet. Therefore, we need to correct our executive machinery.

Question

‘Now-a-days judicial activism has become a common phenomenon. Increasing number of Court-monitored investigation has raised few questions’. Do you think judicial activism of this kind is acceptable? Suggest measures for free and fair investigation.

Editorials, GS-2, Public Admin 2, Uncategorized

State of the service

We currently treat our best bureaucrats badly because we don’t punish bad ones; our government has become too big for small things and too small for big things; and the state is unable to deliver on its own intentions.

Blaming India’s bureaucracy for all this is silly. (notables bureaucrats include V.P. Menon for the integration of princely states and Sukumar Sen for our first election). The only job of the civil services is execution, but not only is the bureaucracy’s collective performance on that narrow metric painful, many bureaucrats don’t have the specialisation to deliver the 12 projects detailed in Nandan Nilekani’s wonderful new co-authored book,  Rebooting India . Further, the notion that bureaucrats must protect India from its politicians is wrong and not dissimilar to academic Daniel Bell’s case in his recent book, The China Model, that choosing country leadership without elections delivers superior policy outcomes. In a democracy, policy is a child of politics.

The first avatar of India’s bureaucracy was the Indian Civil Service (ICS). The second avatar began after Independence. Sardar Patel convinced Nehru of the importance of a “uniform national administrative structure with considerable central control”. A permanent generalist civil services staffed by a highly meritocratic selection process led to a golden period for the civil services because politicians and bureaucrats were idealistic and frugal, one-party democracy kept the political economy simple, and the primary goal was nation-building. The third avatar began in the 1970s, when the national political monopoly broke down, politics became the country’s highest EBITDA (earnings before interest, taxes, depreciation and amortisation) margin business, idealism diminished and bureaucrats began taking sides.

This led to them losing their independence, retaining their permanence and amplifying their “generalness”. It also coincided with the start of the period — 25 years after Independence — when nation-building skills became less important than poverty reduction skills.

The fourth avatar of the bureaucracy should be about creating an adventurous and accountable state focused on execution. Moving to a cost-to-government structure that monetises all benefits, like houses and cars, and enrols everybody in the employee state insurance and provident fund schemes will enable a more liquid and fluid civil servant labour market. Sharper performance management will end the “outstanding” ranking for 95 per cent of civil servants, which punishes the good and honest ones. This will also enable giving top jobs to 45-year-olds. Then, it will replicate the up-or-out colonel threshold of the army, which prevents the pyramid from becoming a cylinder; people not shortlisted for promotion beyond joint secretary should retire early. It will create a UPSC-administered lateral entry process at the level of joint secretary, equal to 30 per cent of staff. It will introduce an equivalent of Australia’s senior executive service, under which all appointments after joint secretary will be done on five-year contracts through an open application process.

It will enable 25 per cent of all senior positions to be co-terminus political appointees confirmed by a standard and transparent vetting process. It will create a culture of bold decision-making with explicit legal protections; the backseat drivers and post-mortems of the last decade have created an understandable preference for following rules over doing the right thing.

The Indian state is not designed for the scale, complexity and accountability it faces. This is not the bureaucracy’s fault. Change will be most sustainable and effective if it comes from inside the civil services, but their senior leadership often spend their final years trying to get post-retirement jobs, rather than caring about systemic reform or their younger colleagues.

Change from outside is a second-best choice, but it is unrealistic to expect people to cut the tree they are sitting on. We need a new configuration of the capabilities and relationship between siyasat (the politics), hukumat (the state) and awaam (the people). Voters are massively changing politics. But only politicians can do civil service reform.

Editorials, GS-2, Indian Polity, Public Admin 2, Uncategorized

Fundamental duties’s role in our polity

Any debate on the Constitution naturally focuses on the historic significance of the primacy of the fundamental rights of citizens. These rights placed India at the forefront of nations that cherish human rights. The historic significance of these rights lies in the fact that a people who suffered colonial oppression and the loss of basic rights for a long time reasserted themselves with a rare zeal in a constitution they gave unto themselves. It’s equally important that these fundamental rights were not limited to the celebrated freedoms under Article 19(1) and the right to life and liberty, but were extended to other parts like the freedom of religion also. The Constitution guarantees that these rights will be protected from any encroachment.

No doubt fundamental rights are crucial to the survival of a vibrant democracy, there’s an equally important aspect for a polity to survive, citizens should have a high sense of duty. The Constitution-makers didn’t think it necessary to list out the duties of citizens because they couldn’t have perceived a society that ignores such duties. Through 42nd AA, 1976, Fundamental duties were added in Part IV-A of Indian Constitution (Article 51-A).

A close look will reveal these duties are fundamental to the survival of this nation as an organised polity. Some of the core duties need to be mentioned to illustrate the point: It shall be the duty of every citizen to cherish and follow the noble ideals which inspired our struggle for freedom; to promote harmony and common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectoral diversities; to renounce practices derogatory to the dignity of women; to value and preserve the rich heritage of our composite culture; to develop a scientific temper, humanism and the spirit of inquiry and reform; to protect and improve the natural environment, etc.

In 1998, Atal Bihari Vajpayee’s government had appointed the Justice J.S. Verma Committee “to operationalise the suggestions to teach fundamental duties to the citizens of the country”. This committee submitted its report containing a number of recommendations for the government to act on. There are schemes being implemented by the ministry of home affairs, HRD ministry, the environment ministry, etc, to promote the teaching of fundamental duties.

We are living in a period in which Indian society is being subjected to unhealthy and dangerous pulls and pressures. The school environment and the social milieu are such that children learn all the wrong things about each other and become victims of social prejudices. The Justice Verma Committee had suggested changes in school and teacher education curricula to incorporate the teaching of fundamental duties, in a serious way, to children. If children learn these in the classroom, they will grow up with a sense of duty imprinted on their minds.

India has a composite culture. Every citizen has a duty to preserve it. Every race that inhabited this land has contributed to the development of this culture. The great rishis evolved a global perspective on man — “Vasudhaiva kutumbakam” sums up that perspective. They believed that ultimately, there is one truth, but wise men say it differently (ekam sat vipra bahudha vadanti). This non-sectarian, secular and universalist perspective of the ancient rishis should form the core of citizens’ duties.

The prime minister has rightly said our children should be taught the Constitution. Yes, and more than any other thing, they should be taught the citizen’s duties. The Supreme Court, too, has said that since duties are obligatory for citizens, the state should strive to achieve the same goal. Rights and duties have to exist together. Rights without duties will lead to anarchy.

Relation between part III and part IV of the Indian constitution:
In Inre Kerala Education bill

The Supreme Court observed “though the directive principles can not override the fundamental rights, nevertheless, in determining the scope and ambit of fundamental rights the court could not entirely ignore the directive principle but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible.

The Supreme Court began to assert that there is “no conflict on the whole” between the fundamental rights and the directive principles. They are complementary and supplementary to each other.

In Chandrabhavan and Kesavananda Bharati cases inaugurated a new era of integrationist approach which could emphasis the under pinning of interrelated value of part III and part IV, Kesavananda Bharati’s case stood for penetration of the notion of distributive justice under Article 39(b) and (c) into the property relations by upholding the constitutionality of Article 31c. the legislative contributions through agrarian and economic reforms, labor welfare and other social justice statutes have by focusing on social welfare, ultimately enhanced the worth of fundamental rights. Judicial review, by removing unreasonable provisions monitored this process. In practice, the interconnections of rights are more sensitized when the government takes the directive principles of state policy seriously.

In Minerva Mills Limited v/s Union of India
The court observed that the constitution was founded on the bed-rock of balance between part III and part IV. To give absolute primacy to one over the other was to disturb the harmony of the constitution. This harmony and balance between fundamental rights and the directive principles is an essential feature of the basic structure of the constitution. Both the fundamental and directive principles of the state policy are embodying the philosophy of our constitution, the philosophy of justice social economic and political. They are the two wheels of the chariot as an aid to make social and economic democracy a truism.

In Bandhua Mukti Morcha v/s Union of India
The approach of sticking to strict legalism in the implementation of laws enforcing directive principles, which in turn promote fundamental rights, has increased the role of directive principles in the inter-relationship doctrine.

The integrative approach towards fundamental rights and directive principles or that the both should be interpreted and read together has now come to hold the field. It has now become a judicial strategy to read fundamental rights along with Directive principles with a view to define the scope and the ambit of the former. Mostly, directive principles have been used to broaden and to give depth to some fundamental rights and to imply some more rights therein for the people over and what are expressly stated in the fundamental rights.

By reading article 21 with the directive principles, the Supreme Court has expanded the horizon of article 21 and derived there from different rights of the citizen. Some of them are;

1)Right to life includes the right to enjoy pollution free water, air and environments. The court has derived this right by reading article 21 with article 48A.
2)Right to health has been recognized as fundamental rights of the workers under article 21.
3)Right to education under article 21A is to be understood with reference to directive principles contained in article 41 and 45.

Thank you!