Month: June 2020

Lateral Entry in Civil Services

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Lateral Entry in Civil Services

This topic remains in news . Eg : In 2019 , UPSC has selected 9 professionals to work in the capacity of joint secretaries in the Government of India.  

Lateral Entry means people from outside the organization are also considered for recruitment at middle & higher level.

Why Lateral Entry?

  • Specialized knowledge , new Ideas, fresh energy, good practices and Innovative work culture comes in from diverse fields to insular bureaucracy
  • Induce competitiveness – Now Civil Servants have to compete with others too to reach at the top.  Lethargic attitude will diminish. So the prospects of lateral entry will always propel overall efficiency.
  • International Examples : Australia, Belgium, New Zealand,  UK,  Netherlands and  US follow this system successfully.
  • There have been government commissions and reports advocating the lateral entry of specialists.  6th Pay Commission, 7th Pay Commission, Niti Ayog  and Second ARC & Hota Committee (2004)  were unanimous on lateral entry.
  • Deficit of Middle Level Officers :  Baswan Committee (2016)  noticed overall 20% shortfall of IAS cadre officers and states are unwilling to send their officers on deputation to Central Government.  Lateral Entry can help in addressing this issue
  • Competitive federalism requires state and union to hire persons with specialized skills and knowledge for informed policy making
  • IAS officers get recruited at very young age when it is difficult to test potential administrative and judgement capabilities making it prone to both type I and type II errors ie some who are potentially good administrators fail to make it, and some who do make it, fall short of the requirements. Mid-career lateral entrants with proven capabilities will help bridge this deficiency.

With governance becoming increasingly complex, experts need to be at the forefront . Present Bureaucracy is seen as a monolith with no scope for improvement, self-serving & obstructionist license-quota Raj vestige. It is an argument well-known to students of public administration that Weberian bureaucracy is status-quoist, and is not fit to administer a chaotic, rapidly growing country . Hence, Lateral Entry can provide new lease of life to bureaucracy.

Current State Of Lateral Entry?

  • It  has been done but at a limited scale and at very high level.
  • Few examples are RBI  Governor & NITI Aayog Vice president
  • The idea of inducting exceptional talent from outside is not entirely new. K.R. Narayanan, India’s 10th President, joined the Indian Foreign Service at the behest of the then Prime Minister Jawaharlal Nehru, apparently without appearing for the qualifying examinations. He was strongly recommended by the renowned political theorist Harold J. Laski. Some recent examples include the appointment of Nandan Nilekani (Chairman of UIDAI), Montek Ahluwalia (Planning Commission) , Raghuram Rajan (Governor of the Reserve Bank of India) and various other experts in the Niti Aayog and other government bodies. 

Challenges For Lateral Entry?

  • Dangers for creation of Spoil System (Politically motivated selection)
  • Opposition from Civil Servants whose chances of promotion are reduced.
  • Short term lateral entrants can misuse their office when they occupy that post and later can misuse the insider information putting national security at risk.
  • Best talent can be attracted in civil services only if there is reasonable assurance of reaching top level managerial positions
  • Width and depth of field experience which the civil services provide is simply not available with outside talent
  • Civil services administrative framework has integrated the diverse country into a coherent whole. Therefore, we should not tamper with the framework
  • Lateral entry does open the risk and prospect of powerful corporate groups placing their men in key positions of government.
  • Issue of reservation : There are no provisions regarding Reservation in 10 Joint Secy Level posts (2018)

How it should be handled?

  • Transparency and accountability are two important factors that should not be underplayed in hiring lateral entrants. Discretion on lateral entry may pave the way to charges of being “politically motivated”, which may degrade the system.
  • A credible agency like the UPSC should be entrusted with the responsibility of recruitment. This would help avoid many pitfalls associated with general lateral entry.
  • For this, the ARC recommended the establishment of a Central Civil Services Board to deal with issues concerning lateral entries. But the body, which would have ensured a robust and accountable system of lateral entry, is yet to come into existence.

Role of Civil Services in a Democracy

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Last Updated: May 2023 (Role of Civil Services in a Democracy)

Role of Civil Services in a Democracy

This article deals with ‘Role of Civil Services in a Democracy.’ This is part of our series on ‘Governance’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

Civil services in India refer to the administrative services of the Government of India, which are responsible for the implementation and execution of various government policies and programs.

Role of Civil Services in a Democracy

1. Civil Servants as Agents of Economic Development

Civil servants play a crucial role as agents of economic development in India. As government officials are responsible for implementing policies and delivering public services, civil servants directly impact the country’s economic growth and development.

  1. Revenue and Resource Mobilization: Civil Servants look after planning, resource allocation and resource mobilization by managing taxation, subsidies, grants and financial administration.
  2. Program Implementation: Civil Servants are behind the strategy and program formulation & implementation for the development & modernization of the nation. 
  3. Manage Government-owned Enterprises: Civil servants manage government-owned businesses, industrial enterprises and public utility services. 
  4. Regulatory framework and governance: Civil servants are responsible for establishing and enforcing regulatory frameworks that govern various sectors of the economy and ensure transparency, accountability, and fairness in business practices.
  5. Infrastructure development: Civil servants are involved in planning and executing infrastructure development projects, such as roads, railways, ports, airports, power plants, and urban facilities.
  6. NITI Aayog CEO to District Magistrate are all IAS which ensures balanced development of all states and tehsils.

2. Civil Servants as Agents of National Integration

The Indian Civil Services, particularly the Indian Administrative Service (IAS), plays a crucial role in ensuring the unity and harmony of the country by upholding the principles of impartiality, fairness, and inclusiveness.

  1. Administration of Diverse Regions: India is a diverse country with various cultures, languages, religions, and socioeconomic backgrounds. They ensure equal development of all regions of the nation and thus help in national integration. 
  2. In a newly formed nation, the bond of nationalism between people of different regions is very weak. Civil Servants act as Steel Frame to keep the nation together in such situations. Vallabhbhai Patel knew this, and as a result, he didn’t dismantle ICS Officers and just changed its terminology to IAS.
  3. Maintaining Law and Order: Civil servants, especially those in the police and administrative services, play a crucial role in maintaining law and order and ensuring that communal tensions are diffused, conflicts are resolved peacefully, and all citizens can live in a secure and harmonious environment.
  4. In All India Services, officers from one region are sent to serve in another region. In these situations, these officers can work well because they are free from any bondage.

3. Role of Civil Servants for making India a Welfare State

  • Since the constitution envisages India to make a welfare state, the government must take care of minorities, workers, children, women, and youth. Hence, government require a large number of generalist & specialist officers who will work according to the needs of these groups. 
  • Civil Servants conduct research, analyze data, and provide expert advice to policymakers. Their inputs help shape policies that address social inequalities, provide essential services, and uplift marginalized sections of society.
  • Anti argument: This Bureaucracy becomes self-perpetuating. Instead of being sensitive to their needs and being the facilitators, they become the main impediment to the development of people. It is seen in India now when Bureaucracy has lost touch with the general public. 

4. Role of Civil Servants in Execution of Program

  • Civil Servants execute all government programs. E.g. the Right to Education is made by Parliament, but to make that work, it is the Civil Servants who do hard work to implement it in schools. 
  • Civil servants engage with various stakeholders to gather feedback, build partnerships, and ensure program success. They collaborate with community organizations, businesses, and citizens to identify needs, address concerns, and foster collaboration.
  • Civil servants monitor and evaluate the progress and impact of government programs. They develop performance indicators, collect data, and analyze outcomes to assess program effectiveness.
  • Anti Arguments: But we have seen nowadays most of the schemes are implemented on paper with almost no work visible on the ground. Execution of work cant be solely left to them because they aren’t accountable to people and aren’t elected representatives

5. Civil Servants as Channel of Communication to/for the State 

In a democracy, each section has aspirations, needs and problems. Bureaucracy is the only mechanism to convert the demand of these people into policy. E.g., If Farmer needs water, he will report to District Collector, and then District Collector will place that information in front of the Irrigation Department.

6. Civil Servants as Knowledge Bank 

  • Civil Servants are transferred from one place to another. They serve in all types of areas and become a repository of huge practical knowledge. This knowledge helps in the formation of better policies.  
  • Along with that, Secret Information like Foreign Affairs and a database of secret agents working abroad can’t be left in the hands of elected representatives. Such information is handled by Civil Servants only. 

7. Civil Servants provides Continuity

Civil Servants carry on the governance when governments change due to elections or any other reason. 

Ramsay Muir on Role of Civil Services in a Democracy

8. Civil Servants as Crisis Managers

  • In the event of natural calamities, the Civil Servants come first to help & act quickly and undertake rescue operations to prevent the loss of life and property of the affected people.
  • They act as moral boosters and life savers in times of calamity. 

Problems with Civil Services 

  • Top Down Approach of Decision Making: Given the elitist composition of the IAS cadre, the administrators are unfamiliar with the complex ground realities. IAS hierarchy is insensitive to the needs, constraints and aspirations of local populations. 
  • Lack of Accountability: Lack of transparency and the proliferation of departments with conflicting jurisdictions make evading responsibility easy. Instances of non-performance, negligence, and misconduct are not adequately addressed, leading to a culture of impunity.
  • Incompatibility with Changing Political Scenario (after 73 & 74 Amendment): In the political sphere, although Panchayati Raj (elected local governance) has been instituted, the District Collector and the rest of the local Bureaucracy continue to be accountable to the governments in the state capitals. Elected representatives find their initiatives thwarted.  
  • Insecurity of Tenure: IAS officers are not protected from persecution by their political bosses. They have to kowtow to the dictates of these masters, even if that means working against the interests of the people.  
  • Weberian Model of Bureaucracy: More concerned with Processes than Results due to the Weberian Model of Bureaucracy.
  • Bureaucratic Red Tape: Indian Civil Servants are known for their red-tapism and act as impediments in public works. 
  • Unable to change: Rapid and fundamental changes are occurring in India due to rapid economic growth, urbanization, environmental degradation & technological changes. The amount of time it takes to react to these changes is substantially shorter than it ever was. But our Civil Services haven’t changed at the same pace with the changing situations.

Suggestions to Improve Civil Services

  • Training should be revamped: Currently, much of the focus of the training program for civil servants is on imparting them administrative and technical skills. What is required is that the maximum focus should be on imparting democratic and ethical values so that they can show empathy and compassion towards the weaker sections during their tenure as civil servants. Technical skills could be learned during the service. 
  • Break Insulation in Labour Market: Bureaucratic structure in India is an insulated labour market. A lateral entry into contractual jobs with a well-defined career progression should exist. 
  • Performance-based promotion: Instead of a seniority-based promotion, the government should move towards performance-based promotion.  
  • Fixed tenure: There should be fixed tenure so that committed officers are protected from persecution by their political bosses. 
  • Increasing accountability and transparency – For this 
    • Lokpal should be strengthened.
    • Right of Citizens for Time Bound Delivery of Goods and Services Bill, 2011 should be passed at the earliest. 
    • Provisions of RTI should be implemented in letter and spirit.  
  • Restructure Bureaucracy keeping in view the 73rd & 74th Amendments. 

Recommendations of Various Commissions & Committees wrt Civil Service Reforms

About Recruitment

  • Professor Yoginder K. Alagh Committee has recommended testing the candidates in a common subject rather than optional subjects. 

Training

  • Yugandhar Committee, 2003 has recommended that there is a need for three mid-career training programmes in the 12th, 20th & 28th years of service as a “major shift” takes place at these stages of their career. 

Weeding Out

  • Hota Committee (2004) has recommended to weed out unsuitable candidates like performance review after 15 years of service.  

Efficiency

  • Hota Committee, 2004 has recommended using ICT to make governance more accessible, accountable and effective.

Accountability

  • Santhanam Committee recommended changes in Article 311 of the Constitution of India, like the offering of bribes, should be made a substantive offence. 
  • First Administrative Reforms Commission (ARC) recommended the establishment of Lok Pal & Lok Ayuktas to deal with complaints against Ministers & Secretaries at the Centre & State level.

Performance Appraisal

  • Surinder Nath Committee, 2003  has recommended that the performance appraisal should be done periodically, and those who demonstrate credible records and possess necessary skills should be promoted.

Quasi-Judicial Bodies

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Quasi-Judicial Bodies

This article deals with ‘Quasi-Judicial Bodies.’ This is part of our series on ‘Governance’ which is important pillar of GS-2 syllabus . For more articles , you can click here

What is Quasi Judicial Body

  • Quasi-judicial body is an organization or individual on which powers resembling a court of law have been conferred but is not a tribunal within the judicial branch of the government and is not a court exercising judicial power in the constitutional sense.
  • Hence , such a body can adjudicate and decide upon a situation and impose penalty upon the guilty or regulate the conduct of an individual or entity but is not part of judiciary .

Emergence of Quasi Judicial Bodies

  • As the welfare state has grown up in size and functions, more and more litigations are pending in the judiciary, making it over-burdened. It requires having an alternative justice system. As a result , Ordinary judiciary has become dilatory and costly. Quasi Judicial bodies are part of such alternative justice system
  • With scientific and economic development, laws have become more complex, demanding more technical knowledge about specific sectors. Tribunals have such expert members too.
  • Conventional judiciary is suffering from procedural rigidity, which delays the justice which these bodies don’t

Quasi Judicial Action vs Administrative Action

  • Distinction between quasi-judicial and administrative action has become blurred . But it does not mean that there is no distinction between the two. Supreme Court has dealt this question in A.K. Kraipak vs. Union of India,
    • In order to determine whether the action of the administrative authority is quasi-judicial or administrative, one has to see  whether it is done with ‘subjective satisfaction’ or ‘objective satisfaction’ . 
Acts done with Subjective Satisfaction Are Administrative Acts
Acts done with Objective Satisfaction Are Quasi-Judicial Acts
  • In case of administrative decision there is no legal obligation, upon the person charged with the duty of reaching the decision, to consider and weigh submissions and arguments or to collate any evidence. The grounds upon which he acts, and the means which he takes to inform himself before acting are left entirely to his discretion.

Examples of Quasi Judicial Bodies

Some examples of Quasi judicial bodies in India are

  • National and State Human Rights Commissions
  • Lok Adalats
  • Central and State Information Commissions
  • Central Vigilance Commission
  • Consumer Disputes Redressal Commission
  • Central Administrative Tribunals
  • Competition Commission Of India
  • Income Tax Appellate Tribunal
  • Intellectual Property Appellate Tribunal

More about specific Quasi-Judicial Bodies

1 .National Human Rights Commissions

We have already covered this topic in detail in other article. To read about working of National Human Rights Commission, click on the link below

National Human Rights Commission

2 . Lok Adalats

We have already covered this topic in detail in other article. To read about working of Lok Adalats, click on the link below

Alternate Dispute Resolution and Lok Adalats

3. Central Information Commissions

We have already covered this topic in detail in other article. To read about working of Central Information Commission, click on the link below

Central Information Commission

4. Central Vigilance Commission

We have already covered this topic in detail in other article. To read about working of Central Vigilance Commission, click on the link below

Central Vigilance Commission

5. Central Administrative Tribunals

We have already covered this topic in detail in other article. To read about working of Central Administrative Tribunals, click on the link below

Tribunals and Tribunalization of Justice

Administration of Tribal Areas

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Administration of  Tribal  Areas

Areas under Schedule 6

Assam 1. North Cachar Hills
2. Karbi Anglong
3. Bodoland
Meghalaya 1. Khasi Hills
2. Jaintia Hills
3. Garo Hills
Tripura Tripura Tribal Areas District
Mizoram 1. Chakma
2. Mara
3. Lai

Need of 6th Schedule

  • Tribes of other states have more or less assimilated with culture of majority of people where they live but Tribes in these states still have their roots in their own culture .
  • Needs to be treated differently . As a result,  sizable autonomy given to them in Governance

Features of 6th Schedule

  • Tribal Areas in these areas to be called Autonomous Districts but fall inside authority of State concerned
  • If more Tribes in Autonomous District ,then Governor can divide district to various Autonomous Regions
  • Each A.D has District Council consisting of 30 members
26 Elected by Universal Adult Franchise . Tenure of 5 years
4 Nominated by Governor and hold office till pleasure of Governor
  • Each Autonomous Region has separate Regional Council
  • Legislative power – District and Regional Councils administers area under them and can make laws on specified matters like land , forest, canal water, shifting agriculture, money lending etc . But  these laws require assent of Governor
  • Councils empowered to collect revenue and impose tax on specified things
  • Acts of Parliament and State assembly don’t apply to these areas or apply with certain modifications

Jan 2019 : Union cabinet approved  constitutional amendment stating that Finance Commission will now “recommend the devolution of financial resources” to the district councils in the Sixth Schedule areas.

Analysis of working of 6th Schedule

  • Representation Issues
    • Demography has changed a lot over last six decades but changes are not effectively represented in the structure of Autonomous District Councils (ADCs)
    • Women need to be represented in them . Unlike in Panchayati Raj Institutions , there isn’t any provision of reservation wrt women
  • Governance Issue
    • Poor quality of governance . Many of them have not codified even the customary laws. 
    • Corruption and illegal activities –  Some members of autonomous council are helping the extremist group factions. North Cachar autonomous council is under scrutiny of CBI and NIA
  • Financial Issues
    • Financial dependence on the state and centre for funds
    • No provisions regarding Audit of accounts 
    • State Finance Commission is not constitutionally bound to include Terms of References wrt Schedule 6 Areas . They don’t get any grants like PRIs and hence are always under Financial Crunch
  • Issues wrt Elections
    • No  express  provision  for  holding  election  within 6 months  of  the  date  of  dissolution  of  a  District Councils.
    • In elections , no Model Code of Conduct and no expenditure ceiling.  
    • Anti Defection Laws are not applicable.
  • No further decentralisation – ADCs have not gone for further decentralisation and not formed Autonomous Regions and Regional Councils in case there are more tribes  .  For example in Bodo Territorial Area districts, there is only district council although there are other Tribes in that region too.
  • Concept  of  Sixth  Schedule   has  encouraged ethnic  divisions. 

Measures to improve working of 6th Schedule

  • Training and capacity building of Autonomous District Council Members for healthy governance.
  • Regular elections should be conducted by State Election Commissions
  • Create a permanent watchdog with powers to order inquiry and initiate actions when irregularities are discovered
  • Many activities are undertaken by State Government as well as District Councils. This duplication is a major source of confusion and obfuscates responsibility. Clarity of functions and roles is needed.
  • Venkatachaliah  Commission,  2002 (recommendations)
    • Audit of accounts  by  the  Comptroller and  Auditor-General  of  India.
    • Make  the  Anti-Defection  Law   applicable  to  the  Sixth  Schedule areas.
  • Ramachandran  Committee, 2007 (recommendations)
    • Remove overlaps  in  functional  responsibilities  between  the States  and District  Councils.
    • Need to constitute State Finance Commission for recommending ways to devolve  funds to District Councils & Regional Councils
  • 14th Finance Commission (recommendations)
    • Finances of 6th Schedule Areas should also be looked at par with Panchayati Raj Institutions

125th Constitutional Amendment Bill

Bill Following are the issues the bill seeks to address:

  • Bill proposes that Finance Commission will now recommend the financial devolution to the Autonomous District council.
  • Bill increases the number of members in some council  (more than 30) considering demands  that some councils were not able to represent major and minor tribes
  • Reserves at least one-third of the seats for women in the village and municipal councils.

Scheduled Areas

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Scheduled Areas

Constitutional Debate

  • There  was  fierce  debate  regarding  the  provisions  of  the  5th  &  6th  Schedule  in  the  Constitutional Assembly. 
    • Advocates of Assimilation argued – Creation of Autonomous  Districts  and  Regional  Councils  will lead  to  their disassociation  from  the  rest of  the country & centre-state relationship  should  not  be  altered  for  the  Tribal  and  Scheduled  Areas. 
    • Some were also  in  the  favour  of  complete  isolation  of  the  tribals.
  • However,  the  provisions  of  the  fifth  and  sixth schedule aim  at  gradual  integration  of the tribal  into  the mainstream  with their own  pace  and  wish.  This  was further stamped when Nehru laid down the Policy of Panchsheel for Tribals. 
Schedule 5 Administration and Control of Scheduled Areas and Scheduled Tribes in any  states except four states –Assam, Meghalaya, Tripura, Mizoram(AMTM)
Schedule 6 Administrations of Tribal Areas in four states of Assam, Meghalaya, Tripura, Mizoram
(we will discuss about 6th Schedule in next article. For more, Click here)

Introduction

  • Interests of Schedule Tribes outside the North East are protected by Fifth Schedule
  • 5th Schedule is concerned with administration of Scheduled Areas and Scheduled Tribes in any  states except four states –Assam, Meghalaya, Tripura, Mizoram (AMTM) Scheduled area has more than 50 percent tribal population.

Why this category was created?

  • Scheduled Areas need to be treated differently from other areas in country because they are inhabited by aboriginal who are socially and economically backward and special efforts are needed to  improve their condition.

Features of Schedule 5

  • President is empowered to declare an area to be Scheduled Area 
  • Executive Power of state extend to Scheduled Area but Governor has special responsibility 
  • Each State having Scheduled Area has to establish Tribal Advisory Council (TAC) to advise on welfare and advancement of Scheduled Tribes consisting of not more than 20 members,  3/4 of whom must be Tribal Representatives in State  Legislative assembly (Prelims  : TAC is constitutional body)
  • State having ST population but not SA can also constitute TAC if President so desire
  • Governor can direct that particular act of Parliament or State Legislature is not applicable there or applicable with certain modifications and exceptions + Can make regulations for peace and good governance in consultation with TAC  after getting assent of President which include transfer of land among members, regulate business of money lending etc
  • Central Government also give Special Financial Assistance to States under Article  275 for implementation of schemes for development of STs
  • President  should appoint a Commission to Report on Administration of these areas at any time but compulsorily after 10 years. Two commissions till date
1960 UN Dhebar Commission
2002 Dilip Singh Bhuria Commission
  • Amendment of Schedule 5 : Parliament may from time to time by law (ie Simple Majority) amend by way of addition, variation or repeal any of provision of this schedule . No such law shall be deemed to be Amendment under Article 368

Analysis – Demand of the areas under 5th Schedule to Transfer to 6th Schedule

  1. Fifth  Schedule  applies  to  an  overwhelming  majority  of  India’s  tribes  in  9  States.  But,  Fifth Schedule  has  failed  to  create desired  impact  because  it  has  never  been  applied  the way  it should have been. 
  2. 5th Schedule has limited  autonomy provisions  compared to 6th  Schedule.
  3. Issues with TAC:
    • In fifth schedule, tribal advisory council have only advisory powers . Unlike  the autonomous district councils (ADCs), which have legislative and financial powers .
    • No clarity on the composition of TAC, especially the remaining one-fourth of the membership
    • Sometimes cabinet ministers from tribal communities are also appointed as members, which is a conflict of interest because the person heading the state cabinet also chairs the TAC.
  4. ADCs have considerable autonomy
    • They receive funds from consolidated fund of  India to finance schemes for development, health, education, roads
    • Have real powers to make laws

Otherwise  the  implementation  of  PESA  needs  to  be  done  earnestly.  It  has  been  suffering  from  severely  poor implementation,  with  states  showing  disdain  towards  the  Act.  

States with Schedule 5 Areas

Rajasthan Andhra Pradesh
Gujarat Odisha
Madhya Pradesh Jharkhand
Maharashtra Himachal Pradesh
Chhattisgarh  

2018 : Area under Schedule 5 has been extended in Rajasthan.  Scheduled Tribes residing in Banswara, Dungarpur, Pratapgarh, and partial areas of Udaipur, Rajsamand, Chittorgarh, Pali and Sirohi districts of Rajasthan will get benefits of protective measures available under the Fifth Schedule

Special case of Delhi

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Special case of Delhi

Present  Status Autonomy  of  Delhi

  • Constitutionally,  Delhi  is  a  Union  Territory (UT) (since  1991) with  a legislature.    
  • Generally all the budgets of UT’s without Legislature is a part of Home Ministry Budget . Hence,  their financial powers are limited . But,  Delhi  has  unlimited Financial  Powers  as  long as  it  is  generating  its  own resources.     

69th Constitutional Amendment , 1991

69th Constitutional Amendment Act, 1991 provided following provisions

  • Administrator was designated as Lt. Governor
  • Strength of Legislative Assembly Fixed at 70 & Strength of council of Ministers to 7 (10%)
  • Chief Minister is to be appointed by President(not Lt. Governor) & other ministers by President on advice of Chief Minister
  • Lt. Governor   can promulgate ordinance during recess of Assembly but with prior permission of President

Restrictions  on  power  and  authority

  • At  present, Delhi  Assembly,  like  other  State  Assemblies,  has  power  to make  laws on all subjects  except  on  3 (PPL) ie:
    1. Public  order
    2. Police  
    3. Land  
  • Legislations  on  matters  related  to  Municipal  Governance  require the  consent  of  Lt Governor,  Union government  and  President  .  So,  the  Municipal  Corporation  is  not  under  the  full  control  of the  Delhi  government.  

Debate – Statehood for Delhi

2020 During Delhi elections, this was the major issue raised by Aam Aadmi Party (AAP)  
June 2018 Delhi Legislature passed resolution to make Delhi a Full State  
2016 Proposal was to make Delhi a state with certain safeguards
1. Keep NDMC (Lutyens and Embassies) under Union Government
2. Appoint Governor instead of Lt Governor
3. Special Cadre of Officers for Delhi

Arguments for  statehood to Delhi

  1. Due to present status , Delhi  Development  Authority  (DDA),  Police  and  Municipal Corporation of Delhi (MCD) are not under Delhi Government. 
  2. Multiplicity of Governance leading to lack of accountability : With such an overlap of responsibilities, Citizens cant hold governments accountable
    • Union Government : Lt Governor, Police, DDA
    • State Government : Water, Electricity, Transport, Health, Education etc
    • Local Government (MCD) : Birth Death Registration, Sanitation etc
  3. Delhi  has population of  2 crore  (more  than  10  full-fledged states), but democratic aspirations of the people of Delhi cant be met without being granted Statehood
  4. To update infrastructure, Delhi   needs  to  take  recourse  to  market  borrowing  but,  not  being  a state,  cannot  do  so.  
  5. Evolution Process must reach conclusion : Union Territories were created with the idea  to provide a transitional status to become states. With time, Goa, Manipur, Himachal Pradesh and Tripura have been granted statehood.

Arguments against  full  statehood (with  way forward)

  1. The capital region has diplomatic areas and other institutions of national interests. 
  2. It  is  not possible  for  the  central  government  to  come  under  a  state  government’s administrative  jurisdiction.
  3. Constituent Assembly Debates : This issue was raised for the first time by Pattabhi Sitaramayya in 1947 in the Constituent Assembly. But B.R. Ambedkar, Jawaharlal Nehru and others opposed it.
  4. To  ensure  police  accountability  to  Delhi,  statehood  may  not  be  necessary.  An Oversight  Committee  consisting  of  Delhi  CM and Union Minister  can  address  local  specific  problems.  
  5. Macro Planning  for  the  National  Capital  requires  long-term  thinking  and  sound technical  advice,  which  the Ministry  of  Urban  Development  is  far  better equipped  to  provide.  

International Practices

Washington DC – In  America,  a  district  (capital)  was  created  that  the  federal  government  could administer  itself  for  its  convenience. 
– At  the  same  time,   local issues  were   relegated  to  its  local  mayoral  government. But Police in Washington is under Mayor . 
 
Canberra Canberra doesn’t have a same legislative INDEPENDENCE as other Australian States and Australian Governor General is the head of Australia’s capital territory
 
Beijing In China , Central Government exercises more control not only over the city of Beijing ,the capital but also over important cities of Shanghai , Tianjin and  Chongqing. 

Given the global experience & other reasons sited above,  it would not be prudent to give full statehood to Delhi. Nevertheless, it is important to recognize the genuine rights of the citizens and balance them against the equally legitimate concerns of national nature.

Supreme Court Judgement : Is Lt. Governor bound by advise of Chief Minister?

Issue that Governor is bound to act on the aid & advice of Council of Ministers is settled fact by Supreme Court Judgements . But whether   extends to Union Territory of Delhi as well , is matter of debate due to unique position of Delhi (& Pondicherry as well) under Constitution. 

Issue

  • 2015: AAP Government vs LG Najeeb Jung. Conflict over bureaucratic appointments, including who should be promoted as the chief Secretary of Delhi.
  • AAP government blaming the LG of not clearing the schemes/initiatives/files related to health, education, PDS, transport, etc. and routinely referring every matter to President.

2018 Supreme Court Judgement

  • Supreme Court judgement in the Government of NCT Delhi vs Union of India case, overturned the August 2016 judgment 
  • Resolving the dispute over the demarcation of powers between the Union Government and the Government of Delhi, the Supreme Court laid down a few key principles:
    • Lt Governor is bound by the aid and advice of the Council of Ministers in all areas except 3 exempted subjects
    • Lt Governor will be advised by Union government on the matters of public order, police and land.
    • When difference of opinion arises on “any matter”, the Lt Governor can’t take a decision on its own or force a decision on the cabinet. He has to refer such matter to the President of India. But, LG should not act in a mechanical manner without applying mind and forward every decision of the Council of Ministers to the President of India.

Analysis

  • In a democracy , it is the will of democratically elected government that prevails. LG can only act as check on the abuse of power and cant become power into itself. 

Feb 2019 : 2 Judge Supreme Court Bench ruling

After July 2018 Judgement, it was thought that tussles between Union and State has been resolved .

  • In a setback to Delhi Government, Supreme Court has ruled that Anti – Corruption Bureau is under the control of Lieutenant Governor which by extension means the center .
  • On the question of who has the powers of transfers and postings of officers , both judges differed and hence matter has been referred to a larger bench.

Union Territories

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Union Territories

U.T are those areas which are under direct administrative control of Central Government.  This  is a Conspicuous departure from federalism in India .

Creation of Union Territories

Why they are created ?

Different reasons

Political & Administration  considerations Delhi & Chandigarh
Cultural Distinctiveness Pondicherry, Daman & Diu , Dadra & Nagar Haveli
Strategic Importance Andaman & Nicobar + Lakshadweep
Special Treatment of Backward & Tribals Mizoram, Manipur, Tripura(later granted statehood)

Administration of Union Territories

  • Article 239 to 241 of Part VIII
  • Administered by  President through Administrator appointed by him. But Administrator is just agent of President & not head of U.T like Governor
  • Different Nomenclature for agent –  Lt. Governor (LG), Administrator & Chief Commissioner
  • Pondicherry(1966) & Delhi(1992) are provided with Legislative Assembly . But this doesn’t diminishes the supreme control of President & Parliament over them
  • Parliament can make law over all three lists and this power extends to Delhi & Pondicherry too . But in addition with that their Legislative Assemblies can also make laws on state & concurrent list( in case of conflict , central law prevails )
  • President can make regulations for peace & good governance of U.Ts of A&N, Lakshadweep, Dadra &Nagar Haveli and Daman &Diu (not Chandigarh) & these regulations have force of Act of Parliament
  • Parliament can establish High Court for U.T or put it under Jurisdiction of High Court of adjacent state (Note : only Delhi has separate High Court)
  • Constitution don’t contain  separate provisions for administration of acquired territories & same provisions apply to them as that of Union Territories

Home Minister’s Advisory Committees for U.T

  • Made under Government of India(Allocation of Business) Rules 1961
  • Made for all 5 UTs without legislature
  • Consist of Administrator + Member of Parliament + Members from Local Bodies
  • Committee discuss general issues relating to social & economic development of U.Ts

Tribunals and Tribunalization of Justice

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Tribunals and Tribunalization of Justice

Tribunals

  • Original Constitution did not contain provisions with respect to tribunals.
  • Added via 42nd Amendment Act of 1976 :
    • Part XIV-A  titled ‘Tribunals’
    • Two Articles are related to this
Article 323 A Administrative tribunals
Article 323 B Tribunals for other matters.

1 . Administrative Tribunals

  • Article 323 A empowers the
    • Parliament to establish administrative tribunals for the adjudication of disputes relating to recruitment and conditions of service of persons appointed to public services of Center, states, local bodies, public corporations and other public authorities.
  • In pursuance of Article 323 A,  Parliament has passed the Administrative Tribunals Act in  1985 and established one Central administrative tribunal and state administrative tribunals.
  • Benefit : 
    • Provide speedy and inexpensive justice to the aggrieved public servants.
    • Reduced pendency of normal courts

1 . 1 Central Administrative Tribunal (CAT)

  • Setup in 1985 with the principal bench at Delhi and additional benches in different states. At present 17  benches
  • CAT exercises original jurisdiction in relation to recruitment and all service matters of public servants  .
  • Its jurisdiction extends to
    • All-India services
    • Central civil services
    • Civil posts under the Centre
    • Civilian employees of defence services.

However,  members of the defence forces, officers and servants of Supreme Court and the secretarial staff of  Parliament are not covered by it.

Composition of CAT

Type – Multi- member body : Chairman + members
– Via Amendment to Administrative Tribunal Act, members have been given status of judges of High Court
 
Strength – 1 Chairman + 65 members
– Members are drawn from both judicial and administrative streams and are appointed by President.
– They hold office for term of five years or until they attain age of 65 years in case of chairman and 62 years in case of members, whichever is earlier.  

Other points regarding CAT

  • Tribunals do not have to follow  procedure as laid down under Civil Procedure Code & under Indian Evidence Act but they have to follow the principles of Natural Justice.
  • Only a nominal fee of 50 is to be paid by the applicant.
  • Applicant may appear either in person or through a lawyer.
  • Originally, appeals against the orders of the CAT could be made only in the Supreme Court and not in the high courts. However, in the Chandra Kumar case (1997),  SC declared this restriction on the jurisdiction of High Courts as unconstitutional. Now appeals against CAT decision lie with High Court.  

1 . 2 State Administrative Tribunals (SATs)

  • Administrative Tribunals Act of 1985 empowers the Central government to establish the State Administrative Tribunals (SATs) on specific request of the concerned state governments.
  • So far (2013), SATs have been set up in the nine states of Andhra Pradesh, Himachal Pradesh, Odisha, Karnataka, Madhya Pradesh, Maharashtra, Tamil Nadu, West Bengal and Kerala. However, the Madhya Pradesh, Tamil Nadu and Himachal Pradesh Tribunals have since been abolished.  
  • Jan 2018 : Haryana setup SAT
  • SATs exercise original jurisdiction in relation to recruitment and all service matters of state government employees.
  • Chairman  and members of the SATs are appointed by President after consultation with the Governor .
  • The act also makes a provision for setting up of joint administrative tribunal (JAT) for two or more states. 

2. Tribunals for other matters

Under Article 323 B,  Parliament and State Legislatures are authorised to provide for establishment of Tribunals for the adjudication of disputes relating to :

  1. Taxation
  2. Foreign exchange, import and export
  3. Industrial and labour
  4. Land reforms
  5. Ceiling on urban property
  6. Elections to Parliament and state legislatures
  7. Food stuffs
  8. Rent and tenancy rights

Articles 323 A and 323 B differs in  following three aspects

  • While Article 323 A contemplates establishment of tribunals for public service matters only, Article 323 B contemplates establishment of tribunals for certain other matters (mentioned above).
  • While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures 
  • Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created.

In Chandra Kumar case (1997), the Supreme Court declared those provisions  of these two articles which excluded the jurisdiction of the high courts and Supreme Court as unconstitutional. Hence, the judicial remedies are now available against the orders of these tribunals. (In case of Tribunals other than CAT, direct appeal can be made to Supreme Court)

Issue : Tribunalization of Justice

First tribunal was set up in India 25 years ago to take the load off high courts. At last count, there are  93 specialised tribunals in India .

Benefit of Tribunals

  1. Tribunals were established with the object of providing a speedy and cheap  determination of disputes
  2. Relief to Courts:  system  gives the much-needed relief to ordinary courts of law, which are already overburdened with numerous suits.
  3. Specialised Body to adjudicate on special and technical issues as tribunals are manned by judicial as well as technical members. 
  4. Flexibility : They do not have to follow any uniform procedure as laid down under the Civil Procedure Code and the Indian Evidence Act but they have to follow the principles of Natural Justice.

Problems with Tribunalisation of Justice

  1. Against Doctrine of Separation of Powers  :
    • Tribunals are part of Executive and their creation to adjudicate matters means shifting powers of adjudication from Judiciary to the Executive
    • Article 50 (DPSP) : Separation of Judiciary from Executive
  2. Increased the workload of Supreme Court : Government has made a provision that appeal from the decisions of such tribunals shall lie before the Supreme Court. Routine direct appeals to the highest court in commercial litigation affecting individual parties, without there being any issue of national importance, is overburdening Supreme Court=>  matters of constitutional importance are not getting the due priority 
  3. Conflict of Interest : Central Government has  power to appoint the members of the tribunal and in large number of cases, Central Government itself is the stakeholder in the cases before the tribunal. 
  4. Accessibility and Cost of Justice Issue : Tribunals are also not as accessible as high courts. For example,
    • Environmental Tribunals : there are just four benches of the Green Tribunal for the whole country. In comparison, high courts were easily accessible for environmental matters.
    • SEBI : A shareholder in Kerala or  Northeast would have to travel to  Mumbai to challenge any order by the SEBI.
  5. Undermining the Authority of Judiciary: Tribunals have largely replaced high courts for disputes under the various Acts. An aggrieved, by an order of an appellate tribunal, can directly appeal to the Supreme Court, side-stepping the High Court. 
  6. 2015 Supreme Court judgment  struck down the National Tax Tribunals (NTT) . Supreme Court said that the tribunal  couldn’t decide “questions of law”, adding these could only be decided by constitutional courts.
  7. Tribunals do not follow any uniform procedures but principles of natural justice, adjudicators are unable to have a clear understanding of the procedures to be followed.
  8. Sidestepping high courts: as in some cases, an appeal against the order of an appellate tribunal can directly be filed in the Supreme Court.

Way Forward

  1. Tribunals should be made last word on facts and Supreme Court should restrict itself to the pure question of law.
  2. Law Commission of India (LCI) , in its 272nd report, has laid out a detailed procedure for improving the working of the tribunal system in the country
    • Selection of the members of Tribunals should be impartial by Separate Selection Committee 
    • Chairman should hold office for 3 years or till he attains the age of 70 years
    • Tribunals must have benches in different parts of the country so that people may have easy Access to Justice, ideally where the High Courts are situated
    • In case of transfer of jurisdiction of High Court (or District Court) to a Tribunal, the members of the newly constituted Tribunal should possess the qualifications akin to the judges of the High Court (or District Court)

Elections to Lok Sabha & Legislative Assembly at same time

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Elections to Lok Sabha & Legislative Assembly at same time

Why in news

  • 2018 : Law Commission has released a white paper on Simultaneous Elections
  • 2019 : Parliamentary Committee on Law & Justice has argued that Elections to Legislative Assembly & Lok Sabha should take place  at same time .

Historical Knowledge : After independence , first four elections were held at same time but after that  it couldn’t be continued . This was mainly done by Indira Gandhi , who wanted to cut the wings of regional leaders so that she needn’t depend on them for central power

Points in favour of this

  • Recommendation of Committees 
    • 2018 : Law Commission has released a white paper on Simultaneous Elections.
    • 1999 : Law Commission Report recommended it
    • 2015 : Parliamentary Committee on Law & Justice  recommended this
  • Political Reason
    • Frequent elections and implementation of Model Code of Conduct leads to policy paralysis and governance deficit impacting  development in country 
  • Economic Reasons
    • Money & resources that are used on elections can be minimised  & used on Social Welfare
  • Social Reasons : Elections in India are polarising events and promotes communalism , casteism etc . Hence, fewer elections are better
  • Helpful in  Internal & External Security
    • Concurrent polls would free central armed forces and manpower that is deployed at regular intervals for election duty so that they can be used better for their regular functions.
  • Examples from other countries : held successfully in Sweden & South Africa

Points against this

  • Against Basic Structure of Constitution : To implement this system , there would be need of fixed tenure system .Fixed tenure is against Basic Structure of Constitution
  • Result in lower Accountability : In present system, same political party has to approach voters multiple times (atleast 3 times) in 5 years. It  increases the accountability and answerability  
  • Against the federal principle : National parties are going to benefit as Voters in India are not mature enough to vote on central & state issues at same time
  • There is no report to vouch that development in India is stopped due to frequent elections

Alternate Way

Former Chief Election Commission Qureshi’s suggestion : Center should provide more paramilitary forces in bigger states like UP, Bihar etc so that election can be conducted in 1 Phase only and reduce time when Model code of conduct is in place 

Criminalisation of Politics

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Criminalisation of Politics

Association for Democratic Rights (ADR) Study

  • Percentage of Members of Lok Sabha with Criminal Charges is increasing each passing Lok Sabha since independence.
17th Lok Sabha (2019) 43%
16th Lok Sabha  (2014) 34%
14th Lok Sabha (2004) 24%
  • Chances of winning of candidate with criminal cases in Lok Sabha is 13% whereas with clean record is 5%

NN Vohra Committee Report (1993)

  • Spoke about criminalization of politics and of the nexus among criminals, politicians and bureaucrats in India.

Reasons for Criminalisation of Politics

Increasing Money Power in Elections Elections require huge expenditure which is impossible for normal person to fund.    
Winnability only criteria Parties focus on winnability of the candidate instead of education, morals and social work  
Loopholes in functioning Voters are not usually aware of the history of the candidate, qualification and cases pending against him. 
Weak judicial system 3.2 crore pendency => takes long time to decide cases and as a result, criminals sit in Parliament and Legislative Assemblies  
Historical Reason Indira Gandhi’s 1969 decision to ban corporate donations to political parties led to crime-politics nexus. That action made campaigning dependent on black money
Crisis of morality In materialistic society

Impact of Criminalisation of Politics

Decreasing legitimacy of Parliament  
Increased Disruptions People with such tainted backgrounds have been seen to disrupt the functioning of the Parliament  
Funds not used for intended purposes Such member under utilise funds like MPLADs
Impact on Police Padmanabhaiah Committee on Police Reforms : It is the criminalization of politics that led to criminalisation of police  
Views of various Committees NN Vohra Committee => Criminalisation of Politics is making democracy hollow.

Reforms taken

  • Lily Thomas Case : Already discussed (Click here to see)
  • Association of Democratic Reforms Case : Supreme Court ordered Mandatory declaration of assets and existing criminal charges in self-sworn affidavits to the Election Commission of India prior to elections
  • NOTA Button introduced to force political parties to put up better candidates .
  • Expense Monitoring Cell setup by Election Commission of India

Way forward

  • Bar candidates against whom charges have been framed by the court in heinous crimes from contesting elections
  • Lifetime ban on convicted politicians from contesting elections (as suggested by Election Commission of India in Nov 2018)
  • Set up fast track courts to dispose criminal cases pending against MPs & MLAs within a year.
  • State Funding of elections => Black money will not be needed
  • Make informed citizenry using Election Commission of India campaigns and utilising efforts of NGOs like ADR, PUCL etc