Insights UPSC Mains Test Series - 2016

(General Studies Paper - 2)

Test - 4
Date: 29 August 2016

SOLUTIONS

1. Both the Constitution and the Representation of the People Act, 1951
lays down grounds for the disqualification of candidates and sitting
legislators. What are these grounds? Have these grounds been diluted
during last decade in favour of legislators? Critically examine.
http://www.prsindia.org/uploads/media/Representation/Brief%20RoPA%202nd%20(A)%20Bill%202013.pdf
http://www.thehindu.com/news/national/parliament-passes-bill-to-allow-those-injail-to-contest-polls/article5102099.ece
Article 327 and 328 of the Constitution confers the power on parliament and state
legislature (where laws made by Parliament are not there or inadequate) respectively to
make rules/regulations for election to Parliament/State Legislature. Consequently the
Parliament has passed Representation of Peoples Act, 1951 to provide for grounds of
disqualification of candidates and sitting legislators. In the year 2013, the amendment to
RPA, 1951 that sought to nullify Supreme Courts verdict on Sec 8(4) of RPA,1951 in Lily
Thomas case caused much heartburn and raises the issue whether the grounds for
disqualification is being diluted.
Under the Constitution, Article 102 and 191 provides for grounds of disqualification of
MP and MLA respectively. These grounds are
a)
b)
c)
d)
e)

Mental unsoundness
Being an undischarged insolvent
Citizenship under doubt
If he/she holds an office of profit
Parliament can make additional laws for disqualification which it has done
through Representation of Peoples Act, 1951
a. If person is convicted for an offence for 2 years or more, the person will be
disqualified for the term of sentence plus 6 years
b. If found guilty of corrupt practices
c. Dismissed for corruption

d. Disqualified for a contract entered into with government related matters

e. A person remains disqualified as long as he managing agent, manager or
secretary of any government company or corporation
f. If fails to lodge expense accounts of elections
Section 8(4) of RPA, 1951 gave a reprieve of three months to legislators from immediate
disqualification if they were convicted for an offence, so that they could file an appeal in
the higher courts. The SC in Lily Thomas case 2013, reversing one of its own judgment
of 2005 where it accepted differential treatment of legislators and candidates,
invalidated Section 8(4) on the grounds that :
Differential treatment of legislators and candidates violates the law of equality as
envisaged under Art 14
It interpreted Article 101(3)(a) to state that any disqualification is immediate
The Parliament subsequently passed an amendment to RPA, 1951 reinstating Section
8(4) in effect by giving a cooling off period of 90 days and allowing the convicted
legislator to continue if he/she is able to get a stay on either the sentence or conviction.
The passage of this Bill without a discussion in Rajya Sabha created huge furor as it was
an action that was seemingly governed by politician criminal nexus which has led to
the menace of criminalization of politics. However the then Law Minister Mr Kapil Sibal
had argued that the amendment would prevent political victimization as false charges
can be filed against a person. In light of huge public pressure, the bill was subsequently
withdrawn.
Dilution of Office of Profit Clause has also been observed in multiple cases where
persons holding important political position and office of profit simultaneously are
exempted from disqualification by passing a law that specifically protects them from
disqualification. Article 102(1)(a) of Constitution says that a person holding Office of
Profit will be disqualified unless explicitly exempted by a law made by Parliament or
State Legislature. Recently the Delhi Legislature passed a law, subsequently disallowed
by President, that said that Parliamentary Secretaries do not hold Office of Profit.
The Court however through several verdicts has ensured that the disqualification
procedure functions as a much needed deterrent as it has passed several orders in this
regard
a) In UoI v/s Association for Democratic Reforms, 2002 case, the Supreme Court
made it mandatory for candidates to provide a comprehensive list of information
at the time of filing nomination. In Ramesh Dalal v/s UoI 2005 case, the
Supreme Court held that any person facing criminal charge at the time of filing
nomination shall not be allowed to contest election.

b) In 2015, Supreme Court held that even after a Returning Officer has declared the
result, the election can be nullified if candidate has not disclosed criminal records
c) In 1997, SC directed all HCs to not suspend the conviction but only the sentence
in case of appeal, a provision that was also tried to be nullified by the proposed
2013 amendment to RPA 1951
d) The Court has also tried to make the election process more transparent and fair
by upholding NOTA in PUCL vs UoI 2013 case, directed all courts to fast track the
judicial process in cases involving convicted legislators in PIL Foundation v/s
UoI case 2014
Criminalization of politics is a huge issue that needs to be resolved and any effort to
dilute the already existing measures of disqualification is met with huge public outcry
signifying the strength of our democracy. The Election Commission is also concerned
with the issue and has taken the following steps/ suggested measures to deal with this
issue
a) In 1998, ECI directed all ROs to pay heed to the 1997 judgment of SC
b) It has suggested the following reforms
a. Introduction of Two Ballot Electoral System to replace the current FPTP
system
b. Right to Reject for voters
c. Suggested that all people who have been convicted by an enquiry
committee shall not be allowed to contest elections till acquitted in a court
of law
d. People convicted for serious offence (>5 years) shall not be allowed to
contest elections if charges are framed by a judicial magistrate
e. Increasing the duration of conviction under Article 125(4) of RPA 1951 for
providing wrong information, from 6 months to 2 years for the
disqualification provision under RPA 1951 to take effect

2. What arguments were made for and against the introduction of the
Aadhaar (Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Bill as a Money Bill in Lok Sabha? Do you think
the final decision of the Speaker in certifying a Bill to be a Money Bill
should not be immune to judicial scrutiny? Discuss.
http://www.thehindu.com/opinion/op-ed/aadhar-bill-the-powertocertify/article8604009.ece

http://indianexpress.com/article/opinion/columns/aadhaar-bill-money-bill-name-ofthe-bill-2754080/
In the Rajya Sabha debate on 122nd Constitutional Amendment Bill, a major demand of
opposition parties was that the CGST and the IGST Bill should not be brought in as a
money bill. This demand is following the general observation that a lot of controversial
legislation including the Aadhar (Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Bill, 2016 have been classified as money bill to prevent scrutiny
by Parliament.
Constitutional Provision with respect to Money Bill:
Article 110(1) of the Constitution lays down 6 criteria of a money bill which deals
primarily with taxation, revenue and expenditure and borrowings. Article 110(2) states
that any Bill which deals with collection of fines etc, or contains provisions of Article
110(1) which are incidental and not consequential will not be deemed as a money Bill.
Article 110(3) says that the speaker certifies a money bill and his/her decision in this
matter is final. Rajya Sabha has limited authority with respect to money bill as its
recommendations are not binding on Lok Sabha.
Arguments forwarded by govt for declaring Aadhar Bill as a Money Bill:
The government while introducing the bill said that the primary purpose of the bill is to
prevent leakages in subsidies which is an expenditure of Union of India and hence the
bill is a money bill. Detractors argued that the Bill deals with several other angles such
as right to privacy, creation of UID, mandatory usage of Aadhar which necessitates
widespread discussion in both chambers of Parliament. Subsequently a writ petition has
been filed in Supreme Court for challenging its classification as a money bill.
Impact of indiscriminately passing bills as Money Bills (Extra Info)
Affect Federalism which is one of the basic structure of Constitution. Rajya Sabha
is a Federal House giving representation to states. Bypassing Rajya Sabha affects
the Federal character of Indian Polity
Constitution has cast the Rajya Sabha in the role of second chamber, a revisory
house to prevent hasty, politically motivated legislation and not as a secondary
house. Further, Rajya Sabha extends the reach of democracy by involving 12
nominated individuals who represent the intellectual capital of the country.
Bypassing Rajya Sabha undermines its role envisioned by the founding fathers
Rajya Sabha keeps a check on authoritarian character of a government that
enjoys absolute majority thereby ensuring that debates, discussions are still
central in the functioning of government

 Passing off bills as money bill casts aspersion on the neutrality of the office of
Speaker. Speaker has a key role to play in the smooth functioning of legislature
and neutrality is a paramount quality of a speaker
Violates the spirit of Article 110(2)
Question of Judicial Scrutiny over Speakers Actions
Article 110(3) of the Constitution declares that speaker is the final authority in deciding
whether a bill is a money bill. Article 122(2) of the Constitution states that the courts
cant bring under scrutiny, the action of the officer/member of Parliament, with respect
to their actions regulating procedure or conduct of business in the house.
However, the Supreme Court in the past has brought the action of speaker under
Judicial Review. Under the 10th Schedule, the decision of speaker on disqualification
under Anti Defection Law is final. In Kihoto Hollohan v/s Zachillhu case, the court held
that speakers decision on ADL is not final and it can be challenged on the grounds of
violations of constitutional mandates, mala fides, non-compliance with Rules of Natural
Justice and perversity. It went on to say that the protection of Articles 122 and 212 was
only to protect the validity of proceedings from mere irregularity of procedure.
However, in a similar case decided in 2014, the Uttar Pradesh Legislative Assembly
passed a Bill to amend the Uttar Pradesh Lokayukta and Up-Lokayuktas Act as a Money
Bill and did not send this to the Legislative Council. The Act was challenged (Mohd.
Saeed Siddiqui v State of U.P.) but the Supreme Court decided that the decision of the
Speaker that the Bill in question was a Money Bill is final and the said decision cannot
be disputed nor can the procedure of the State Legislature be questioned by virtue of
Article 212
Thus the question of application of Judicial Review over speakers action in declaring a
money bill is not settled. It is true that certain actions have led to controversies in the
near past. We need to bring some reform such as UKs practice of appointing a
committee of two senior legislators to assist the speaker over the question of money bill.
In order to ensure proper functioning of Legislature, neutrality of speaker is critical and
should be preserved. As the famous adage goes Justice should not only be done, it
must also be seen to be done. Similarly the speaker must not only remain neutral but
must also be seen to be neutral.

3. What were the objectives of passing the Election Laws (Amendment)

Bill, 2016 which sought to amend the Delimitation Act, 2002 and the
Representation of the People Act, 1950? Also discuss the process

involved in delimitation of constituencies and issues arising out of

delimitation.
http://www.prsindia.org/billtrack/the-election-laws-amendment-bill-2016-4184/
http://archive.indianexpress.com/news/delimitation-changing-india-s-politicalmap/278466/0
http://www.newindianexpress.com/cities/hyderabad/Delimitation-of-ConstituenciesOnly-in-2026/2015/02/07/article2656529.ece

The Election Laws (Amendment) Bill, 2016 seeks to amend the Representation of the
People Act, 1950 and the Delimitation Act, 2002. These Acts regulate allocation of seats
to the national and state legislatures, and delimitation (i.e., fixing boundaries) of
parliamentary and assembly constituencies. The Bill aims to empower the Election
Commission to carry out delimitation in areas that were affected by the enactment of the
Constitution (100th Amendment) Act, 2015. Under the 2015 Act, enclaves were
exchanged between India and Bangladesh. The Bill amends the Acts in order to give
additional powers and responsibilities to the Election Commission. It states that the
Election Commission may amend the delimitation order to :
exclude from the relevant constituencies the Indian enclaves that were
transferred to Bangladesh, and
include in the relevant constituencies the Bangladeshi enclaves that were
transferred to India.
Delimitation refers to redrawing of territorial constituency on the basis of latest
population data so as to ensure uniform electoral strength in all constituencies. This is
done to uphold the principle of political equality of all citizens. It has other practical
implications as well. Indian electoral law provides for uniform period of campaigning of
2 weeks and fixed election expenditure, irrespective of electoral strength. Similarly
under MPLADS and MLALADS scheme uniform amount is allocated to each MP/MLA
to undertake developmental activities in his/her constituency. In the absence of
delimitation, the benefits would get unevenly accrued based on number of people in
constituency.
Articles 81, 82 and 170 provide for delimitation. U/A 82, Parliament by law shall
provide for delimitation on the basis of latest census figures. Article 81 provides for the
principle on which delimitation exercise is to be carried out, which is
each state will be allotted a number of seats in Lok Sabha such that the ratio
between that number and the population of state remains fixed

 each state shall be divided into constituencies such that the ratio between the
population of each constituency and the number of seats allotted to it shall
remain fixed
Delimitation exercise, after the passage of delimitation act, is carried out by a 3 member
delimitation committee and the President notifies the order. Under Article 329, once
notified by the President, the order can not be questioned in a court of law.
Issues arising out of delimitation are:
a) In the past states which had better implemented population control programmes
got affected by the exercise of delimitation as their representation in Lok Sabha is
on the basis of population. Consequently, the 42nd CAA stalled the exercise of
delimitation till 2000 and froze the share of seats to LS till 2000
b) Delimitation in certain countries result in a phenomena known as
gerrymandering which refers to altering electoral boundaries to serve political
interests. Thankfully, checks and balances in our country has not led to any
accusations of gerrymandering
c) Delimitation exercise currently is stalled till the 1st census post 2006 as per 84th
CAA. This has created issues in Andhra Pradesh and Telangana where, the AP
Reorganization Act provides for increase in seats to state legislature but the
constitutional barrier is creating a hindrance
d) Delimitation if not done properly affects political equality
4. Critically comment on the changes introduced by the Lokpal and
Lokayuktas (Amendment) Bill, 2016 to the Lokpal and Lokayuktas Act
2013. Do you think the institution of Lokpal has become irrelevant in
the light of many laws introduced to curb circulation of black money
in the country? Justify.
http://indianexpress.com/article/opinion/columns/lokpal-bill-lokpal-actgovernment-centre-bjp-government-congress-parliament-lok-sabha-rajya-sabhaleader-of-opposition-opposition-parties-mps-member-of-parliament-opposition-mps2952257/
http://thewire.in/58528/lokpal-and-lokayuktas-amendment-act/
http://www.prsindia.org/billtrack/the-lokpal-and-lokayuktas-bill-2016-4354/
The Lokpal and Lokayuktas (Amendment) Bill, 2016 amends the Lokpal and
Lokayuktas Act, 2013 in relation to declaration of assets and liabilities by public
servants and redefines who is a public servant. The Amendment Act has made the
following changes to the 2013 Act:

 While the earlier act necessitated the public servant, his/her spouse and
dependent children to declare their assets and liabilities, the amended Act
requires only the public servant to do so
The Bill also does away with the requirement of public disclosure of these assets
The amendment bill also allowed for a change in the form and manner of
disclosure of assets and liabilities of public servants, leaving it to the central
government to prescribe them through rules
The definition of public servant has now been amended. Senior office bearers of
any trust, NGO which are receiving more than 10 lakhs in foreign funding or
more then 1cr from government will be treated as public servants.
While the idea behind non disclosure of assets by spouses and dependent children of
public servant is based on protecting rights to privacy, protect from harassment and
security threats, the argument does not have much merit because of following reasons:
Similar disclosures are already made by electoral candidates while filing their
nomination paper without leading to any issues being observed empirically in
India.
The Supreme Court in PUCL vs UOI (2003) struck down the privacy argument
and stated that when there is a competition between the right to privacy of an
individual and the right to information of the citizens, the former right has to be
subordinated to the latter right as it serves larger public interest
The amendments militate against the very purpose of the Lokpal which was
established to inquire into complaints related to offences punishable under the
Prevention of Corruption Act (PCA). As one of the grounds of criminal
misconduct under the PCA relates to public servants, or any person on their
behalf, being in possession of pecuniary resources or property disproportionate
to their known sources of income, it is critical that disclosure of assets and
liabilities of public servants be of a high standard. Since illegally amassed assets
can be handed over to family members, it is important that the declaration
include details of assets of the spouse and dependent children.
The provision of including NGOs in the public servant definition has both pros and cons.
The positives are:
1.
Transparency
2.
Uniform standard for Civil society at whose behest the Act was brought in
3.
Accountability of NGOs, PGs etc
4.
These bodies are often criticized for opaqueness.
5.
NGOs registered with govt get tax breaks and govt aid is public money, so
NGOs should be made accountable for their finances.
The negatives being:

1.
No clarity whether these people would be tried under PoCA,1988. Logical
extension shows that they would. It has created fear among the board members and
many are quitting
2.
Already checks and balances in place
a. Under FCRA, declarations to be made to Home Minister
b. RBI regulations have led to "Know your Customer" filings by all senior officials of
such organization
c. By the same yardstick, schools or other autonomous research institution would
come under purview
3.
The distinction between Public and Private institutions should not be
eroded even when the ostensible reason is to promote accountability.
4.
Many corporate philanthropists would be wary of genuinely contributing
to society through NGO route. Eg, people like Azim Premji, Ratan Tata etc.
5.
Impractical to monitor NGOs by Lokpal. Can lokpal in addition to 2
million public servants also monitor 24 million employees of NGOs is a question that
begs to be answered
Moreover the amendments have not included a change in the selection committee of
Lokpal which includes the Leader of Opposition in Lok Sabha. Since, at present, there is
no such Leader, it casts doubt over the governments intention to implement Lokpal.
Despite the presence of many laws and agencies dealing with black money in the
country, the Lokpal Act is an essential tool in dealing with the menace of black money
and corruption in the country. The reasons are:
Unlike the traditional system, the Lokpal Bill proposes to give decision making
power to highly qualified individuals who are neither bureaucrats nor politicians.
With the Supreme Court itself commenting on the CBI as a caged parrot, the
Lokpal with superintendence over investigating agencies is a necessary measure.
To investigate cases against a public servant no sanction is required and this is
one of the best parts of the Lokpal
It is expected that the corruption cases will witness a speedy conclusion and the
decision will be swifter. The turnaround time for justice to be meted out will be
lesser. At administrative level, there is excessive job security, lengthy procedures
and multiple permission for prosecuting corrupt officials. The Lokpal if
implemented in its truest sense will take care of these issues as preliminary
inquiry will be conducted within 30 days and completion of investigation must
take place within six months. Though extension of further six months can be
given only after receiving a valid written reason
No fight against a social menace like corruption can be accomplished without
peoples support. Lokpal had captured the imagination of masses and thus could
prove to be a viable tool in fight against corruption
Moreover, people will not get lost in the size of Indian judiciary system and they
can count on a single entity to report crime and get their grievances redressed
as all the trials must be completed within a year that may extend to two years
after giving valid reason in writing

5. Why is Judicial independence central to democracy? Do you think

reforming the existing collegium system is the best way forward to
select and appoint judges to ensure independence of judiciary?
Critically discuss.
http://www.thehindu.com/opinion/lead/a-way-to-judicialindependence/article7896653.ece
http://indianexpress.com/article/explained/appointment-of-judges-34-year-stopstart-battle-of-interpretation/
In recent times, the tussle between judiciary and executive has come to the forefront
courtesy the delay in finalization of Memorandum of procedure, as per the order of SC
last year in the NJAC verdict, for appointment of judges to higher judiciary. This again
raises the debate over independence of judiciary and the process of appointment of
judges.
Judicial independence is critical to the doctrine of limited government as envisaged in a
state governed by constitution. Montesquieu gave the Theory of Separation of Power, as
according to him, if unchecked powers are given to any particular institution, there is a
tendency in them to become autocratic. In Indian context, Judiciary has been cast in the
role of protector of constitution and guarantor of the fundamental rights of the citizens
by the Constitution. Judiciary keeps a check on the arbitrary exercise of power by
executive and legislature and thus an independent judiciary is critical to stability of
democracy in India.
While certain provisions of the constitution such as impeachment of judges, salary and
pensions charged on Consolidated Fund of India etc ensure judicial independence, the
appointment and transfer process of judges has ignited a debate over what constitutes
judicial independence. Article 124(2) of the Constitution and 217(1), President has to
appoint the judges in consultation with CJI and HC CJ. The Supreme Court, however,
post the Three Judges case equated doctrine of primacy of judiciary with independence
of judiciary and arrogated the power to appoint judges from the Executive through
Collegium System. The Collegium system has been criticized because:

 Collegium is an extra constitutional authority. Ambedkar held that a fine balance

is to be maintained between the two organs of the government. Appointment of
an judges should be an integrated, participatory process, which is not the case
with collegium system
The collegium system has been held as non transparent and has been called an
island of insularity
Posts in higher judiciary remained vacant. 30% of HC judges seat was empty
Deep divisions were observed within the collegiums system
The system of extending favours because of lack of transparency and
accountability led to decline in the quality of justice dispensation. It promoted
dynasties in judiciary, often called Uncle Judges syndrome
However the NJAC Act brought by the government to replace collegiums also suffered
from many vices such as:
The judiciary was underrepresented in NJAC with only 3 out of 6 members.
Presence of Law Minister in the body raised the question of fairness as UoI is the
largest litigant before the judiciary
Politicization of judiciary as had happened prior and post emergency was a valid
threat
The court while quashing 99th CAA as unconstitutional held that
o Judiciary can not be caught in a "web of indebtedness" towards the
government
o Independence of judiciary is equivalent to judicial primacy and process of
appointment of judges can not be shared with political executive
o Organic development of civil society in India has not yet happened. Thus
the burden falls on judiciary to safeguard the rights of the citizen and for
this judiciary needs to be kept completely insulated from the other organs
if government
o Bench held that the tendency of executive has been to indulge in
favoritism. Preserving the primacy of judiciary is a safe way of protecting it
from turning into a case of spoils system
o Bench admitted that all is not well with collegium and highlighted that the
system requires a glasnost and a perstroika
Thus a Memorandum of Procedure needs to be developed which is transparent,
mentions the eligibility criteria, establishes secretariat, provides for a complaint
redressal mechanism. We can also imbibe the best practices from other countries such
as UK Judicial Appointment Commission which provides for detailed procedure,
involvement of people, provides for an exam and interview system for judicial
appointments.

6. It is said that the Goods and Service Tax is actually good for business
and bad for federalism. Do you agree? Critically comment.
http://www.thehindu.com/opinion/op-ed/gst-good-for-business-snag-forfederalism/article7279180.ece
http://thewire.in/56732/gst-killing-federalism/
http://www.livemint.com/Opinion/Hs1zdMpy2nKQNCibz7EnbK/The-new-Indianfederalism.html
The recent passage of the 122nd CA Bill is heralded as a significant shift in the economic
landscape of India. The idea of one country, one indirect tax is finally beginning to
take shape and there are both positives and negatives.
Positives for Business
1.) For Business and Industry
a. Easy compliance as one tax to be paid
b. Creation of one market which will facilitate Ease of Doing Business in
India
c. Removal of cascading taxes which will lower price, thereby boosting
demand, a shot in the arm for the beleaguered corporate sector
d. Improve competitiveness as the transaction cost for doing business would
reduce. Also, now the most competitive good will sell across the country
irrespective of the location where it is manufactured.
e. All the above advantages are expected to provide a boost to the ambitious
Make in India programme of the government
2.) For Consumers
a. No cascading burden of taxes which would moderate inflation, thereby
boosting demand
b. More transparency in taxation regime and easier to understand for the
customers as well as businesses
There are still issues which needs to be ironed out though:
1) Deciding the exemption limit below which traders will not come under GST
regime
2) Readying the IT infrastructure for administration of GST
3) Devising an effective mechanism to deal with dual policing by centre and state to
administer and implement GST
GST and its impact on Fiscal Federalism

The Constitutional provisions with respect to Fiscal Federalism has two major
imbalances
a. Vertical Imbalance The mismatch between expenditure and revenue
requirements. The centre possessed more revenue but less expenditure whereas
the vice versa is true for states
b. Horizontal Imbalance There is disparity in revenue accrued by the states
So far, states also had autonomy in deciding tax rates for those items falling in the state
list, as well as deciding VAT rates.
With the advent of GST, following issue is likely to crop up in Fiscal Federalism
1) States will lose their autonomy in deciding taxation rates based on their
expenditure plan. In GST regime, rates will be decided by GST Council. However,
as per the GST Bill, the Council will fix the floor rate along with bands. This will
leave some autonomy for the states to tinker with the tax rates to suit themselves.
2) In GST council, decisions are to be taken with a majority of 75%. The states
comprise two third of the votes of the council and the centre enjoys one third of
the voting power giving the veto power over key decisions to the centre
3) There is also the issue of states having the ability to impose sin tax on goods such
as fast food (done in Kerala recently). Moreover, the ability of the states to raise
revenue to suit their own political programme is under question
However, it is to be realized that GST is the need of the hour. Moreover the Indian
GST regime offers advantages unlike the GST regime in other large federal polities,
where the system is either
a) Too centralized, which deprives sub federal levels of fiscal autonomy, such as in
Australia, Germany, Austria
b) Or, independently administered, which creates too many differences in tax bases
and rates that make compliance difficult and also makes inter state transaction
difficult to tax, such as in South Africa
The Indian system however establishes a modicum of coordination like in Canada.
Common base and common rate will facilitate tax administration and ensure
compliance. Reasonable exceptions, as decided by GST Council, will provide a degree
of fiscal autonomy to the states.
The Empowered Group of State Finance Ministers during the course of their
discussion have kept the interest of states on board and GST Council has emerged as
a key institution of Centre State Relations. A reform of the nature and magnitude of
GST will require a leap of faith to be taken, as issues are certain to crop up, which has
to be resolved effectively through the aforementioned mechanism.

7. Do you think partisan federalism is acting as impediment to

cooperative federalism? Examine how the Supreme Court can end
partisan federalism in India.
http://www.thehindu.com/todays-paper/tp-opinion/the-sc-must-end-partisanfederalism/article8215770.ece
Federalism is a part of the Basic Structure and strengthening of federalism is key to
ensuring good governance in the country. The present government has laid emphasis on
cooperative and competitive federalism and seeks states support in many of its key
initiatives such as Make in India, Swachh Bharat Abhiyan etc. However the bane of
partisan federalism still impacts the polity of the country.
Following are the manifestation of partisan federalism which conflicts with the idea of
cooperative federalism:
1) Appointment of governors The post of governor has become a key tool by which
the centre likes to have some semblance of control over state polity, as the
appointment of governor happens through the centre. The present government
post coming to power appointed many new governors replacing the old ones in
line with what has been happening so far. Despite SC guidelines on removal of
governor (BP Singhal vs UoI) and on office of governor (Hargobind kaur vs
Raghukul), the issue persists
2) Application of President Rule SC in SR Bommai case had said that President
Rule should be a measure of last resort. However the political developments in
Arunachal Pradesh and Uttarakhand defy that directive. The Supreme Court had
to step in to reinstate the Congress led government post application of President's
Rule.
3) The office of governor is still used to reserve bills of state governed by Opposition
party for President's approval. In the absence of objective guidelines on what bills
should be reserved, the problem persists. Case in point is the centres tussle with
Delhi government over bills like the delhi govt bill on Parliamentary Secretary
However the Centre has also taken steps to strengthen the rubric of Federalism in the
country
1) The passage of 122nd CA Bill by an effective process of consultation with state
government and addressing their concerns through the Empowered Group of
Finance Ministers is a shining example of Cooperative Federalism
2) The implementation of the report of 14th Finance Commission accepting greater
devolution of taxes to the state also shows strengthening of Fiscal Federalism

3) Despite a single party government at the centre, compulsion of coalition politics

at state level ensures that the concerns of states are taken on board
It is safe to conclude that while partisan federalism, indeed, continues to hamper centre
state relations. However things are changing because the need of economic development
requires states to come on board on several of the key reforms agenda of the
government. Cooperative and competitive Federalism are not just being paid lip service
to, but is also being implemented in many areas.
The Supreme Court though can act to ensure that the isolated cases of Partisan
Federalism by directing centre to give effect to its verdict in SR Bommai case with
respect to imposition of President's Rule, appointment of governor in BP Singhal case
etc

8. India remains among the few countries with a constitutional

commitment to a liberal democracy that nevertheless lacks
comprehensive anti-discrimination legislation . Identify the issues
that are holding back India from making it a true liberal democracy
and the role of legislature and judiciary in making it one.
http://www.insightsonindia.com/2016/02/02/5-india-remains-among-countriesconstitutional-commitment-liberal-democracy-nevertheless-lacks-comprehensiveanti-discrimination-legislation-identify-issues/
The Supreme Court judgement in Suresh Kumar Koushal vs Naz foundation case was
seen as a huge setback in the fight against anti discriminatory legislation and
constitutional commitment to liberal democracy. In recent times, the atrocity against
Dalits in Una, lynching in Dadri, etc pose serious questions.
The following are the issues that are holding India back from becoming a true liberal
democracy:
Discrimination against lower castes and Dalit Despite several empowerment
measures, some guaranteed by the Constitution itself, atrocities against Dalits
and other lower castes continue unabated. The societal prejudice against these
people manifests in violence against these people or them being deprived of equal
rights
Discrimination against women The fact that we are still debating whether
women have the right to enter temples or Dargahs present a sorry picture on the
status of women. The patriarchal nature of society has led to the perpetration of

kangaroo courts in the form of Khap Panchayats which still treat women as
second grade citizen. The concept of marital rape is not yet recognized. Despite
several well intentioned measures of the government, women still face
discrimination in several walks of life
Against transgenders, LGBT While transgender suffer primarily due to societal
biases, LGBT face discrimination by law in the form of Section 377 of IPC. The
recent surrogacy bill approved by cabinet discriminates against adoption of
children by same sex couple. The SC while hearing the curative petition in Naz
foundation case directed legislature to take anti discriminatory measures
The issue of free speech The constant uproars over freedom of expression
manifested in cases such as banning the book of Perumal Murugan, unabashed
usage of sedition laws etc violate the fundamental tenet of liberalism
Communalism - Progressive rational and scientific ideas are not accepted well by
the fringe groups that backfire against such ideas as evident by murder of
Dabholkar and Pansare
In wake of all these issues, the legislature and judiciary can play the following role
Enact laws to further the pro-people agenda and the notion of equality
Judiciary should indulge in 'activism' to correct any shortcomings in the law
Decisions on sensitive issues should be taken by a higher bench of judiciary
and in tune with modern trends
A true liberal democracy is must for realizing the potential of people and avoiding any
kind of psychological crisis.
9. It is argued that implementation of uniform civil code is important to
ensure gender justice in India. Do you agree? Critically comment.
http://www.thehindu.com/opinion/lead/nivedita-menon-on-uniform-civil-code-itisnt-about-women/article8850353.ece
http://www.livemint.com/Opinion/YJFZYlzt2IN3lkOlljLjfO/Why-India-needs-auniform-civil-code.html
Periodic reminders from SC on the need for Uniform Civil Code resulting in Narendra
Modi asking the Law Commission to examine the viability of implementing UCC has
brought the focus back on the debate.
One of the directives to the centre according to Article 44 is to implement a uniform civil
code. The issue has continued to polarize since the reversal of the Supreme Court verdict
in Shah Bano case. The idea of uniform civil code is mostly linked to the idea of
secularization i.e. the state has the right to make laws for all communities. Uniform Civil

Code does not imply a Common Code governing personal sphere of all communities but
the authority of centre to make legislations for all communities even in personal sphere.
According to one section of Indian politics, it is necessary to strengthen nationalism.
This argument was also given in Constituent Assembly debates when leaders like Minoo
Masani argued in favour of UCC saying that India has been held back from advancing on
the path of nationhood due to the existence of personal laws based on religion which has
kept the nation divided into watertight compartments. This idea is based on the concept
of European nationalism which will hardly work in India because of the multicultural
character and diverse viewpoints. The constitution itself keeping in line with the
multicultural tradition has given recognition to special rights for religious and linguistic
minorities.
The real issue as believed by many is related to the rights of women. The fight of Muslim
women against the practice of Triple Talaq has again brought the issue to forefront. At
present, Hindus, Buddhists, Christians, Sikhs etc are governed by separate laws dealing
with marriage, property rights, divorce etc. The debate over UCC, at least in the legal
domain, is linked to the status of women and their rights in Muslim community. It is
also linked to the rights of Hindu women as conversions are done to Islam for bigamy
and polygamy.
The court in several judgments from Shah Bano to Daniel Latifi has sought to protect
the rights of women, made conversion solely for polygamy illegal and has also nudged
the government to take appropriate measures. However the debate has now acquired
religious connotation and is seen by many as the state trying to exert overbearing
control. The way forward remains either the way in which Hindu laws were made ie
progressive incrementalism or take learning from the civil law in Goa derived from the
Portuguese Civil Code

10.
The Forest Rights Act (2006) and the Panchayats (Extension to
Scheduled Areas) Act (1996) have established a framework for local
self-governance in demarcated (or scheduled) areas, yet their full
implementation is fraught with many challenges. Critically analyse
these challenges and suggest ways to overcome them.
http://www.insightsonindia.com/2016/02/04/3-forest-rights-act-2006-panchayatsextension-scheduled-areas-act-1996-established-framework-local-self-governancedemarcated-scheduled-areas/

Indigenous tribes constitute about 8% of Indias population and the Forest Rights Act,
2006 and PESA go a long way in protecting the rights and empowering these people.
The recent controversy over the Forest Rights Act between the environment ministry
and tribal affairs ministry concerning state control over forest produce has brought the
spotlight back on these legislations.
PESA as the name suggests extends the provisions of 73rd CAA to Schedule 5 areas and
those with significant tribal population. The Act empowers the Gram Sabha to govern
their natural resources as well as giving them power to make laws governing certain
aspects such as property, lending, land rights etc. The challenges in implementation of
the Act are as follows
ongoing power struggle between the bureaucracy and tribal communities
limited interpretation of the acts, with governments recognising only individual
property and not community ownership of land
Not recognising common property resources that tribes collectively manage and
live off is not only economic injustice, but also breaks the traditional order of
tribal societies. The assault on tribal lifestyles and livelihoods has been incessant
leading to Virginius Xaxa committee painting a bleak picture of the status of
tribals
Various legislations of the government such as MMRDA etc continue to dilute the
Gram Sabhas ownership over community rights. This is despite the Supreme
Court ruling in favour of Gram Sabha in various judgements such as Samantha
and Vedanta cases
Financial autonomy is merely on paper
Mandatory governor report in not being prepared
Corruption, capture of power by few local elite , ignorance wrt provision of PESA,
low level of women participation further hamper the cause
Forest Rights Act recognize the right of tribal communities over trading in forest
produce. The problems in implementation of the provisions of the Act are as follows:
Ministry of Environment and Forests had changed the law to throw open up to
40% of the countrys (ostensibly only degraded) forests to private sector
management. Allowing the private sector to use these lands for monoculture
could have a ruinous impact on the ecosystem. In these areas the tribal
communities have control over only 10-15% of the forest land
In Maharashtra, the control over forest resources has been appropriated by the
forest department granting them control over lucrative trade running in crores of
rupees over tendu leaves and bamboo

 absence of land record, low literacy, corruption and collusion between elite and
officer derail the process
Slow implementation ( MP only 23% land yet distributed after 10 years)
cumbersome process adds to woes
State override FRA clause under development pretext without adequate
compensation and rehabilitation
Amendment of state laws in accordance with two laws. Empowering Gram
sabha(financially, training, providing information). Recruiting more officers from the
community. Governor report should be prepared on time. Fast track court to solve land
grabbing issue. Participation of civil society and activist judiciary further add teeth to
the twin laws which epitomize real swaraj as envisioned by Gandhiji.