Q.11) “The separation of powers theory is threatened by the functional overlap between various government organs.” Comment. (10mark) (150 words)
Montesquieu propounded and explained the principle of separation of powers in his book The Spirit of the Laws (1748). SOP refers to the division of powers, authority, and responsibility among different branches (of the state) with the intention of preventing abuse of power. According to this theory, the primary function of the legislature is to make laws, the function of the executive is to enforce these laws and the function of the judiciary is to interpret the laws.
Since the early 1990s, Indian courts have dealt with matters ranging from governance lapses to legislative matters to political and policy matters with greater frequency, leading to constant friction between the three organs.
Although the Constitution of India does not strictly provide for separation of powers, these articles provide a general guideline:
- Article 50[i]: This states that the State or the Government concerned will take appropriate steps to ensure that the judicial branch is separated from the functioning and working of the executive branch.
- Article 121[ii] & 211[iii]: It, in a way, provides for the separation of the legislature and the judiciary. This article states that the conduct of justice or the way a judge discharges his duties of any Court cannot be discussed in the legislature (state or union).
- Article 122[iv] & 212[v]: This article is aimed at keeping the judiciary (the law interpreting body) and the legislature (the law-making body) separated. It does so by stripping the judiciary of any power to review and question the validity of proceedings that take in a legislature or the Parliament.
- Article 361[vi]: This article separates the judiciary and the executive. It states that the President or any governor of any state is not answerable to any court in the country for actions and activities are taken in performance/exercise of the powers and duties of their office.
The Indian Constitutional plan balances the two principles of SOP and the system of check and balance. Thus, each organ has control over the powers of the other organ:
- The judiciary exercises the power of judicial review under Article 13 on legislative and executive functions. The judiciary has the power to annul the laws passed by the Parliament. Similarly, it can declare unconstitutional executive functions void.
- India being a parliamentary democracy, the executive is part of the legislature. Thus, the legislature exercises “checks and balances” in both houses through various instruments such as Zero Hour, Question Hour, and various motions.
- Although the cases of second and third judges have been established for the collegium system of appointment, the constitution provides for the appointment of judges by the executive.
- In addition, Parliament has the power to impeach a judge for proven misconduct or misbehavior. Although legislatures cannot discuss the conduct of a High Court or Supreme Court judge, they can do so in cases of impeachment.
Checks and balances work in such a way that no part of the state becomes too powerful. “Separation of Powers” along with “checks and balances” is the most important feature of our constitution. These principles balance the powers of three pillars: executive, legislature, and judiciary.
Q.12) The public’s trust in Parliament is gradually eroding, while their trust in the judiciary is steadily increasing. Explain the reasons behind this. What damage does it cause to the democratic system? (15 mark) (250 words)
There is a worldwide trend in recent years that people’s confidence in elected bodies is decreasing and confidence in technical and non-elected bodies has increased. In western countries, it is indicated by low turnout during elections and in India, it is indicated by an increase in civil society movements.
Various reasons have been responsible for the fall in people’s trust in Parliament:
- The efficiency of Parliament has also declined. The number of bills passed has declined over the years. Around 340 bills were passed in the 1st Lok Sabha. And in the 16th Lok Sabha, only 133 bills were passed.
- Over the years there is a rise in criminalization in politics. A number of parliamentarians have also got involved in large-scale corruption cases like 2G spectrum scam, CoalGate scam and commonwealth games scam, etc.
- In recent years both houses of parliament are witnessing continuous disruptions. Opposition prefers walkouts over debates and discussions. Rajya Sabha’s research wing pulls out statistics from the last five years (2015- 19) which reveal that nearly 60% of the time allotted for the hour has been lost due to disruptions.
- Parliament’s inability to connect with the people. The major source of information on Parliament is the media which deals with the business appeal of the functioning of Parliament. Therefore, the disputes of the Parliament are visible more than the specifics in the functioning.
- There are also problems in the functioning of political parties. The functioning of the party is undemocratic. Parties are suffering from high command culture, family politics, etc.
All these issues have led to distrust in politicians and ultimately in Parliament. But, at the same time there is a rise in people’s faith in the judiciary:
- Access to the judiciary, especially after the introduction of PIL’s (Public interest litigations) in 1980 has improved.
- The judiciary is able to keep its generally spotless reputation. With a few exceptions, the judiciary is seen to be clean, in contrast to politicians.
- Judicial activism, in which the court has not only plugged loopholes, but has also directly intervened and, in certain cases, taken over the powers of the Executive. All this has helped people in more than one way. SC judgments like Vishaka guidelines, expansion of the right to life under article 21, transgender judgment, establishing SIT on black money, etc. are very popular
But this trend shows that all is not well in Indian polity. Nehru called parliament the temple of democracy. Thus, the decline of parliament is never good for democracy.
- The lack of trust and interest of the public in parliament is harming the public itself, they don’t participate in the process of policy formulation.
- The decline of parliament has led to judicial activism and in some cases judicial overreach. This jeopardizes not just the system of checks and balances, separation of powers but also undermines parliamentary democracy.
- Having a negative perception about parliament thwarts a large number of young population from entering the electoral arena. This further breeds corruption and criminalization of politics.
As a result, there is an urgent need to halt Parliament’s deterioration and restore people’s faith. The parliament must devise techniques for reaching consensus through debates and discussions. The opposition must participate constructively. Electoral changes are required to combat criminalization and the use of money in politics. People’s participation in governance must also be increased.
|Criminalization of Politics
● 46% of Members of Parliament have criminal records. The current cohort of Lok Sabha MPs has the highest (29%) proportion of those with serious declared criminal cases.
● In the third all-India survey commissioned, the Association for Democratic Reforms (ADR) found that-
– A nationwide survey involving more than 2.7 lakh people revealed that for 41.34% of respondents, distribution of liquor, cash, and freebies was an important factor behind voting for a particular candidate in an election.
– 86% of interviewees felt that candidates with criminal backgrounds should not be in Parliament or State Assembly.
– 89% were willing to vote for a candidate with criminal records if the candidate had done good work in the past.
● As much as 67% of donations to national parties in 2018-19 came from “unknown sources,” an increase from 53% in the previous financial year, said a report released by the Association for Democratic Reforms.
● As per a report released by the Association for Democratic Reforms (ADR), more than half of the income of 23 regional parties whose annual audit and contribution reports were analyzed came from unknown sources in 2018-201
Q.13) “An institution that is accountable to none is against the ethos of democracy.” Discuss this statement in the context of the recent episodes of misconduct by the members of the Higher Judiciary. (10mark) (150 words)
In an age that increasingly demands more judicial intervention to solve the increasingly complex and sensitive issues of society, the need for judicial accountability and effectiveness is greater than ever. Judicial accountability is an essential element of an efficient system of justice, as it helps to ensure the competency of the judiciary and instills faith among the masses.
- The appointment procedure is non-transparent. After the Third Judges Case, an appointment is done solely by the judiciary. Thus, there are chances that non-deserving candidates enter the judiciary.
- Presently there is no mechanism except impeachment to act against a misconduct judge. Impeachment by the Parliament is a long-drawn-out and difficult process. Till now no judge of higher judiciary has been impeached.
- With the introduction of PILs, the doctrine of basic structure, and liberal interpretation of the right to life, the role of the judiciary has increased. Judiciary has started intervening in policy formation and policy implementation (Judicial Activism).
- In this scenario, allegations of corruption, misconduct, Benami property, etc. have increased against judges of the higher judiciary
- Certain informal measures against an erring judge such as relieving them of all judicial work, or transferring them to another high court have remained ineffective.
- Lower court judges in India are also evaluated through a system of Annual Confidential Reports (ACRs), which are completed by the senior-most judges of the lower court, and reviewed by the State High Court. But ACRs are neither filled up regularly nor is the evaluation process transparent.
In a democracy, all institutions work on the principle of Checks and Balances. Every institution has to be accountable to parliament as well as to the people. These principles are getting violated in the case of the judiciary. The present methods of accountability are either very difficult or very ad hoc in nature. Thus, there is an urgent need to evolve a comprehensive system to assess the performance of members of the higher judiciary.
- The Memorandum of Procedure that is being considered should provide for a transparent system of appointment.
- The office of Chief Justice of India can be brought under the definition of “Public Authority” under RTI Act.
- The government can revive the Judicial Standards and Accountability Bill, 2010 that has lapsed due to the dissolution of parliament. A system of performance assessment exists for the Civil Services in the form of the Annual Performance Appraisal Report (APAR) which is an objective-subjective hybrid document of performance assessment that can be introduced for judges also.
- In the European Union, the European Commission for the Efficiency of Justice conducts a periodic performance review of court systems of different member states. India can also have a similar independent Commission.
A joint consultation should be held with stakeholders including judges, lawyers, Bar Council, academics, and members of civil society to understand how best to initiate such a system in India. But even while measuring judicial performance, a delicate balance needs to be struck so that independence of the Judiciary is not affected.
Q.14) Explain the procedure for electing the President of India. Discuss the significance of the President’s role in Indian polity in this perspective. (15 mark) (250 words)
The President of India is the head of state of the Republic of India. The President is the formal head of the executive, legislature, and judiciary of India and is also the commander-in-chief of the Indian Armed Forces.
Method of election of Indian President:
- The President is elected not directly by the people but by members of the Electoral College.
- The Electoral College consists of the elected members of both the Houses of Parliament; elected members of the legislative assemblies of the states; and the elected members of the legislative assemblies of the Union Territories of Delhi and Puducherry.
- To achieve uniformity in the scale of representation of different states as well as parity between the states and the Union, the value of the vote of MP and MLA are determined in proportion to their representation.
- The process of election is through the “Single Transferable Voting system.” Each voter has a chance to give preferences for the candidates in the fray.
- In the first phase, the first preference votes are counted. In case a candidate secures the required quota in this phase, he is declared elected. Otherwise, the process of transfer of votes is set in motion. The process continues till a candidate secures the required quota.
- All doubts and disputes in connection with the election of the President are inquired into and decided by the Supreme Court whose decision is final.
The parliamentary system consists of a nominal head (President) and an elected head (Prime Minister). Actual governance is under the Prime Minister but the role of the President is not less significant.
- Work as the guardian of the Constitution by keeping the executive accountable and ensuring reconsideration of hastily passed bills.
- He ensures continuity of the government by allowing interregnum.
- He ensures the safety of India and its territories by serving as the head of armed sources and by imposing emergencies after scrutiny as per the requirement.
- He represents India in all international forums and thus helps in maintaining foreign relations.
- He maintains checks on unconstitutional legislation or laws imposing a threat to the integrity of India.
- Declaration of emergency has to be under the President’s scrutiny, it helps in the government’s arbitrary decisions.
The President should act as a strong link between the Union and the states, and preserve the unity and integrity of the nation at all times. At the same time, it is his duty to ensure that the Union Parliament can function in the true spirit of democracy. Any action of his that tilts the balance, and gives undue preference to the Union executive is bound to affect the balance in the federation.
Q.15) The Parliament’s Public Accounts Committee is known as the “mother of all Parliamentary Committees.” Discuss its composition and functions briefly. What constraints does PAC encounter in carrying out its main objective of keeping the Executive accountable for the use of public funds? (10mark) (150 words)
The Public Accounts Committee (PAC) is one of the standing committees of the Parliament. It has 22 members, 15 are from Lok Sabha and 7 from Rajya Sabha. They are “elected” by members of Parliament amongst themselves via a system of proportional representation by means of a single transferable vote.
Functions & Powers:
- It examines the three audit reports of CAG submitted to the President: appropriation of the Union accounts, financial accounts, and public undertakings.
- It examines the appropriation accounts and the financial accounts of the government and any other accounts laid before the Lok Sabha.
- It examines the accounts of the public service corporations and other such bodies whose accounts are audited by CAG.
- PAC also examines audit reports of various autonomous and semi-autonomous bodies, the audit of which is conducted by the CAG.
Thus, it has the power to scrutinize and check on slackness, negligence, and wrongdoing on the part of the Executive. Holding the Executive to account for its use of public money is one of its key roles and thus, it is called the “mother of all Parliamentary Committees“.
However, despite holding the executive accountable, it faces a number of significant challenges:
- Most of the functions it performs are Ex Post Facto in nature, thus having little or in taking proactive steps.
- Inadequate funding and manpower to carry conduct all investigations
- Reports may be lengthy, complex, and difficult to interpret due to a lack of technical expertise.
- It takes up any issue after the CAG has examined and submitted its report, thereby huge delay in examining the reports
- The number of times either opposition as well as ruling party members prefer walkouts over genuine debates and discussion.
- The government is frequently unresponsive to PAC.
Steps to strengthen the PAC:
- On the appointment of the CAG, the PAC should be consulted.
- To address the increasing complexity of public policy, technical specialists should be consulted.
- Committee meetings can be broadcast live on television.
- Allow parliament to examine the government’s compliance with any recommendations contained in PAC reports, similar to how an additional monitoring report by the audit institution would be assessed.
Thus, PAC serves as a vital training ground for future Ministers and officers, instilling a feeling of responsibility for public funds in them. It should be strengthened further to ensure transparency and accountability to Parliament.
Q.16) In our polity, Parliament is the supreme representative institution of the people. Examine the numerous functions that the Parliament carries out. In this context, what legislative reforms are required to make Parliament more productive and efficient in meeting the needs of society? (15 mark) (250 words)
The constitution of India provides for a parliamentary form of government. In which the representatives of people in Parliament are directly elected. Parliament performs different types of roles.
Major functions of the Parliament:
- The Parliament makes laws on all subjects listed in the Union List. It can also make laws on subjects listed under the Concurrent List. In case there is any conflict or overlapping in the provisions existing in the Union and State enactment, the Union law prevails.
- Union Parliament has exclusive powers to provide ways and means through which revenue has to be raised for public services.
- The existence of opposition also ensures that the nation gets to know about the alternative points of view.
- Parliament is the most powerful organ so far information about the functioning of the government is concerned. The information provided in the Houses is authoritative and Ministers are bound to provide information.
- The power to amend the Constitution vests with the Parliament. Constitutional amendments have to be passed by each house by a majority of total membership as well as by the two-thirds majority of members present in voting.
- Parliament has the exclusive powers to impeach the President and remove judges of the Supreme Court and the High Court through a prescribed procedure. Parliament can also punish a person for contempt or defamation of the House.
- Elected members of the Rajya Sabha and the Lok Sabha Constitute the Electoral College for the election of the Vice-President. Along with elected members of the State Legislatures, they form the Electoral College for election to the office of the President.
Following legislative reforms are required to make Parliament more productive and efficient :
- Office of the Speaker – It should be modified on lines of the office of the speaker in England. The Speaker should be given more powers, and the office should be made neutral. All party meetings should be held frequently to build consensus.
- Parliament should have a minimum mandated the number of days to meet. The National Commission to review the working of the Constitution has recommended 120 and 100 days for the Lok Sabha and Rajya Sabha, respectively.
- Parliament deals with a large number of conventions, traditions, rules, regulations, and formalities. Thus, institutionalized arrangements are necessary to provide professional training and orientation to every newly elected Member.
- For effective surveillance over administration and for objective policies, Parliament and members need information. They have to be fed with the latest information and kept up-to-date. Parliament can build its own independent national information reservoir. Briefing sessions by experts on topics of current parliamentary concern can also play an important role.
- Reformed standing committees can hold the parliament and members accountable.
- Rationalizing and modernizing rules of procedure to meet today’s needs.
- As highlighted by the Law Ministry, we require a constitution committee. Instead of constitutional amendments being presented to Parliament like ordinary pieces of legislation, it would be desirable to have the committee so that parliament is involved in the process from the beginning and later disruptions are minimized.
- The Anti-Defection Act needs to be recast and used only in the most exceptional circumstances while allowing MPs free rein on their self-expression.
Reform is urgently needed to make Parliament more productive and responsive. Parliament is supposed to be a union of exemplary orators, with a grass-roots touch.
Q.17) The size of the cabinet should be big as governmental work justifies and as big as the Prime Minister can manage as a team. How far is the efficacy of a government then inversely related to the size of the cabinet? Discuss. (10mark) (150 words)
The size of the Cabinet is determined by a number of factors, including political necessities, representation of various factions, the Prime Ministerial candidate’s mode of functioning, ministerial experience and capabilities, and so on. In some circumstances, such as the forming of a coalition government, it is inevitable that the Cabinet be relatively large in order to include all of the coalition’s parties.
Disadvantages of large-sized cabinet
- A large cabinet is also detrimental to the healthy development of public life and political parties.
- A large cabinet creates chaos. There are only a limited number of ministries for the Ministers to govern, and putting too many ministers in charge of lesser ministries would be a classic case of too many cooks spoiling the broth.
- There would be overlaps in responsibilities and differences between the many ministries, which would be a challenge in itself. These challenges will arise even if the Prime Minister is extremely capable, and hence must be avoided.
Disadvantages of a small cabinet
- Excessive power concentration in the hands of a few people.
- Potential for conflict of interest and overburdening
- Duties overlap
Advantages of mid-size cabinet
- Less burden on the Public purse
- Resolves the coordination issue
- Supportive of the development of team spirit
- A compact cabinet is always commended for the healthy growth of democracy.
The Cabinet serves as both the government’s machinery and its nerve center. The Cabinet should be framed according to the requirement of structure, which means neither too small nor too big but optimum size of the cabinet.
Q.18) Do you think Pressure group politics is an informal face of politics? In this context, discuss the role of pressure groups in deepening democracy in India. (15 mark) (250 words)
Pressure group politics involves activities by organized groups that seek to influence government policy or legislation i.e. to influence the people who actually have the power to make decisions. They use methods like lobbying, strikes, lockouts, gheraos, etc. to pursue the interests of their members. They are thus described as ‘interest groups, ‘lobby groups’ or ‘protest groups’ also.
Indian democracy also has a large number of Pressure groups: organized as well as anomic. RSS, FICCI, DICCI, etc. are a few prominent pressure groups. They are playing the role of making Indian democracy “Substantive and Deliberative” democracy.
Pressure Groups as an informal face of politics
Like Political Parties, Pressure groups also hold a lot of power in a democracy. But, the two differ on the number of counts.
|Political Parties||Pressure groups|
Thus, political parties are called the formal face of politics. And Pressure groups are called the informal face of politics.
Important role of pressure groups in deepening democracy in India
- Elections take place once in five years, but the pressure groups engage the government in an ongoing dialogue with the people. They keep the administration informed about popular opinion in the interval between elections.
- Minorities and vulnerable parts of society are given a political voice through pressure groups.
- They raise concerns about various social issues such as fundamental rights and liberties, poverty, environment, domestic violence, etc. At times, these are the issues that are neglected by political parties for their low electoral benefits. E.g. Issues of transgenders.
- They increase people’s participation in elections, in government decision making and in policy implementation.
- By promoting political debate, discussion, and argument, pressure groups help to develop a more informed and educated voter. The quality of public policy therefore improves.
But Pressure group politics suffers from various challenges like the use of unconstitutional methods, involvement in violent methods, unable to establish legitimacy, etc. As a result, the government also has to take a tough stand against them. Thus, Pressure groups have to work in close coordination with each other and with the government to achieve desired results.
Q.19) The CAG is mandated by the Constitution to serve as a watchdog over government finances. In this context, explain CAG’s constitutional position and suggest ways to improve its effectiveness in light of this. (10mark) (150 words)
The CAG audits the accounts of the central and state governments as well as entities that are government-owned or government-funded. As per Article 149 of the constitution, CAG is mandated to act as a watchdog of government finances. It plays an essential role in making the government more transparent and accountable to the legislature as well as civil society.
CAG’s constitutional position
- The CAG has a broader mandate in government that can be described as ensuring financial accountability as well as value for money, control of corruption.
- Article 149 constitution provides auditing power of CAG with respect to propriety auditing.
- Unlike a mere bookkeeper, the constitutional auditor basically deploys three distinct audit frameworks: Financial Audit, Compliance Audit, and Performance Audit. Questioning wisdom behind policies comes under Performance Audit.
- Parliament and PAC cannot actually review the functioning of the executive on a day-to-day basis. Further, CAG being an independent and non-political constitutional office has high legitimacy.
- In Munimji judgment, the apex court observed that “the CAG’s function to carry out examinations into the economy, efficiency and effectiveness with which government has used its resources is inbuilt in the CAG’s (Duties, Powers and Conditions of Service) Act 1971.
It was only after CAG’s reports irregularities in spectrum auctioning and coal auctioning came to the fore. Further, auctioning of coal blocks in a transparent manner has brought benefits to the government exchequer.
Challenges faced by CAG-
- CAG doesn’t have the requisite expertise to understand the technicalities of various issues of policymaking. Eg. Competitive bidding of natural resources may bring funds to the government, but the government may go for a First Come First Serve Basis to keep prices of these natural resources low.
- Government decisions are taken by considering wider aspects and issues CAG doesn’t have a comprehensive outlook to look into issues.
- Critics say that CAGs activism has led to delays and policy paralysis.
- The appointment process currently followed is not neutral and transparent; this leaves room for collusion. Thus, an appointment can be done with greater involvement of Parliament (eg. Leader of Opposition).
- CAG reports should be given wider publicity. Various assumptions of CAG and not only the final conclusions should be discussed and debated
- There should be fixed a time limit within which CAG’s reports should be tabled in the parliament. Presently there is a lot of delay in the tabling of CAG reports.
- CAG should be equipped with more sectoral experts to study multiple links in varied areas like Environment, Sports, Economy, efficiency, etc.
- Performance audit will increase the workload on CAG. Thus, the option of making CAG a multi-member body, as suggested by the Shome Panel should be deliberated upon.
Q.20) Discuss the newly established National Commission for Backward Classes’ functions and responsibilities. Also, highlight the issues associated with the newly constituted NCBC. (15 mark) (250 words)
With the 123rd constitutional amendment act, the National Commission on Backward Classes (NCBC) was granted constitutional status, at par with the National Commission for Scheduled Castes (NCSC) and the National Commission for Scheduled Tribe. Originally, the NCBC was a statutory body under the Ministry of Social Justice and Empowerment.
The Commission is made up of five members: a Chairperson, a Vice-Chairperson, and three other Members appointed by the President by warrant under his hand and seal. The President determines the terms of service and tenure of office for the Chairperson, Vice-Chairperson, and other Members.
Functions and Responsibilities:
- The new National Commission for Backward Classes is constituted under Article 338B and commences functioning as a constitutional authority.
- It investigates and monitors all topics pertaining to the safeguards provided for the socially and educationally backward classes under the Constitution or any other law in order to assess the effectiveness of such safeguards.
- It participates and advises on the socio-economic development of the socially and educationally backward classes, as well as the evaluation of their progress under the Union and any State. It reports to the President on the functioning of those safeguards on an annual basis and at such other times as the Commission deems appropriate. The President laid such reports before each House of Parliament.
- NCBC must carry out any other tasks related to the protection, welfare, development, and progress of the socially and educationally backward classes that the President may designate by regulation, subject to the provisions of any law established by Parliament.
- The new Commission will hear complaints/grievances from the socially and educationally disadvantaged sectors. For this reason, it will have the authority of a Civil Court.
Issues associated with newly constituted NCBC
- It is anticipated that the new National Commission for Backward Classes will not deliver a credible and effective social justice framework. The new NCBC’s recommendations are not legally binding on the government.
- As it has no responsibility to define backwardness, it cannot address the current issues of demands of various castes to be included as BCs.
- The NCBC act would undermine federalism by usurping the authority of state governments to create their own BC lists.
- The Supreme Court-mandated features of the expert body are not included in the composition of the new NCBC.
- As recent data shows a skewed representation of SC/ST and OBC groups, mere constitutional status and more acts will not alleviate the problem at the grassroots level.
- Article 338B (5) is silent on the SC directive for periodic updating of the backward class list in consultation with the NCBC.
Steps need to be taken:
- The composition should represent the characteristics of an expert panel, as ordered by the Supreme Court.
- The government must make public the findings of the caste census and the commission’s recommendations.
- The composition of the commission should reflect gender sensitivity and stakeholder representation.
- Vote bank politics should give way to value-based politics so that only the most disadvantaged members of society benefit from the reservation.
- It would aid the oppressed classes in fighting atrocities against them and ensuring swift justice for them.
Q.21) Human rights are inalienable rights to enjoy a dignified life. In this light, discuss the role played by the National Human Rights Commission (NHRC) in India. Also explain how the Protection of Human rights act (AMENDMENT), 2019 undermines NHRC autonomy. (10mark) (150 words)
The National Human Rights Commission (NHRC) was established in 1993 under the provisions of the Protection of Human Rights Act of 1993. It is the country’s human rights watchdog. These rights include the rights related to life, liberty, equality, and dignity of the individual guaranteed by the Indian Constitution or embodied in the international covenants and enforceable by courts in India.
ROLE PLAYED BY NHRC
- Since its establishment, the NHRC has not only carried out a number of actions to safeguard and promote human rights in India but has also given directives to governments and their agents to respect the human rights of vulnerable sections of society.
- The Indian NHRC’s role is ‘complementary’ to that of the Supreme Court and the High Courts in India. The Supreme Court and various High Courts in India have referred several matters relating to human rights to the NHRC for inquiry or for monitoring.
- Supreme Court remitted, among others, matters relating to allegations of deaths by starvation in the KBK districts of Orissa; the monitoring of programs to end bonded and child labor in the country, etc., to NHRC.
HOW PROTECTION OF HUMAN RIGHTS ACT (AMENDMENT), 2019 UNDERMINE NHRC AUTONOMY
- The tenure of the chairperson and members of the NHRC has been reduced from five to three years under the amended sections 6(1) and 6(2). The three-year term is insufficient to even comprehend how the system works.
- Section 3(4) has been amended to allow the secretary-general (chief executive officer) of the NHRC Office to perform all administrative and financial powers other than judicial tasks, but only “subject to the control of the NHRC chairperson.” As a result of this provision, the secretary-general is now under the jurisdiction of the chairperson rather than a full commission, which was previously used to assign powers to the secretary-general.
- The amendment adds more deemed members; the post is merely ceremonial and ineffective.
- The demands to increase the number of members in the NHRC to ensure representation from diverse communities was paid no heed.
In recent years, India has seen an upsurge in human rights breaches, the most visible being the situation in Kashmir with the repeal of Article 370. The 2019 Human Rights Watch report states that the government failed to prevent or credibly investigate growing mob attacks on religious minorities, marginalized communities, and critics of the government-often carried out by groups claiming to support the government. It is time to change the human rights discourse in India from institution-centric to people-centric.
Q.22) “All anti-corruption institutions have overlapping functions and jurisdictions, which affects the original objective of eradicating corruption.” Discuss. (15 mark) (250 words)
Corruption is a serious issue in India. No country, no matter how democratic, is free from corruption. It ruins national economies, harms social stability, and erodes public trust.
At the national level, there are now three main players in the fight against corruption:
- the Lokpal,
- the Central Vigilance Commission (CVC), and
- the Central Bureau of Investigation (CBI).
Central Bureau of Investigation
It is a police organization. It can take up an investigation of an offense only if the concerned state government permits it to.
Central Vigilance Commission (CVC)
It was established in 1964 as the apex agency for ensuring public probity. It Monitors/conducts disciplinary proceedings involving corruption. It is advisory in nature and its recommendations are not binding on the government, however, disagreement cases are mentioned in the annual report, placed before parliament.
The Lokpal and Lokayukta
The Lokpal and Lokayukta Acts of 2013 established Lokpal for the Union and Lokayukta for States. These are statutory institutions. They act as an “ombudsman” and investigate claims of corruption against specific public officials, as well as other problems.
Overlapping functions and jurisdictions
All three institutions have overlapping functions and jurisdictions, which affects the original objective of eradicating corruption.
- The Lokpal and CBI, and CVC all have jurisdiction over Group A and B public servants.
- Although the Lokpal has its own Inquiry Wing, it can refer a complaint to the CBI for a preliminary investigation and then register a regular case under the Prevention of Corruption Act of 1988. It is unclear what happens when the CBI is already investigating such a complaint.
- The government, in addition to the Lokpal, is also competent to order a preliminary inquiry and permit the CBI to proceed with a regular case. In cases where a public servant is caught red-handed accepting a bribe, the CBI can file a case even without the government’s approval.
- The Lokpal and Lokayuktas Act of 2013 establishes an exclusive Prosecution Wing for the Lokpal. In this situation, there may be coordination concerns between the Lokpal wing and the Director of Prosecution at the CBI.
- Similarly, the CVC receives complaints on corruption or misuse of office and recommends appropriate action with its jurisdiction almost overlapping with CBI and Lokayukta.
- CVC does not have an independent domain since it is not an investigating agency. The CVC either gets the investigation done through the CBI or through vigilance officers (CVO) in government offices.
- The functions of Lokpal, CVC, and CBI should be clearly specified and overlap between functions and powers must be addressed. They should have independent domains and jurisdiction yet they should be able to work in harmony with each other.
- The Parliamentary Committee recommended in 2018 that the Central Vigilance Commission and the CBI’s anti-corruption section be integrated and work directly under Lokpal’s command and supervision to deal with corruption matters.
- Lokpal should conduct inquiries, investigations, and prosecutions with the help of the CBI and the CVC. This harmony will aid in the smooth conduct of the inquiry and prosecution.
- The Lokpal and the government should work together and focus on the overarching goal of combating corruption rather than getting bogged down in technicalities.