Polity - I.pdf

8/17/2019 Polity - I.pdf

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C ntents

• Ordinance Making Power in India

• Frequent Disruptions of Parliament and its Impact

• Importance of Post of Governor

• Provisions Related to Removal of Governor

• Scrapping of GoMs and EGoMs

• Credibility Crisis of Central Bureau of Investigation (CBI)

• Gram Nyalayas

• Analysis of Lok Adalat

• NALSA: Structure & Analysis

• Provision of NOTA in Elections

• Reforms needed in Criminal Justice System

• Issues related to AFSPA

• NRI Allowed to Vote via e-postal Ballots

• Public Engagement with the Legislative Process

• Issue of Paid News

• Analysis of working of Inter-State Council

• Uniform Civil Code

• Controversy over Provision related to RTI on Political Parties

• Issues in the working of the Political Parties

• Reservation for Women in Legislature

• Real Estate (Regulation And Development) Bill, 2013

• The Whistleblowers Protection Act, 2014

• New Land Acquisition Bill

• Supreme Court strikes down Section 66A of Information Technology Act

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Polity-I


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tesOrdinance Making Power in India

In India, the central and state legislatures are responsible for law making, the

central and state governments are responsible for the implementation of laws

and the judiciary (Supreme Court, High Courts and lower courts) interpretsthese laws.

However, there are several overlaps in the functions and powers of the three

institutions. For example, the President has certain legislative and judicial

functions and the legislature can delegate some of its functions to the executive

in the form of subordinate legislation. Ordinance making power of the executive

is an example of such overlap.

Ordinance Making Powers of the President

Article 123 of the Constitution grants the President certain law making powers

to promulgate Ordinances. This technique of issuing an ordinance has beendevised with a view to enable the executive to meet any unforeseen or urgent

situation arising in the country when Parliament is not in session, and which

it cannot deal with under the ordinary law.

An ordinance is only a temporary law. It may be related to any subject that the

Parliament has the power to legislate on. Conversely, it has the same limitations

as the Parliament to legislate, given the distribution of powers between the

Union, State and Concurrent Lists. Thus, the following limitations exist with

regard to the Ordinance making power of the executive:

i. The President can only promulgate an Ordinance when either of the two

Houses of Parliament is not in session.

ii. The President cannot promulgate an Ordinance unless he is satisfied that

there are circumstances that require taking ‘immediate action’.

iii. Ordinances must be approved by Parliament within six weeks of

reassembling or they shall cease to operate. They will also cease to operate

in case resolutions disapproving the Ordinance are passed by both the

Houses.

Ordinance Making Powers of the Governor

Just as the President of India is constitutionally mandated to issue Ordinances

under Article 123, the Governor of a state can issue Ordinances under Article213, when the state legislative assembly (or either of the two Houses in states

with bicameral legislatures) is not in session. The powers of the President and

the Governor are broadly comparable with respect to Ordinance making.

However, the Governor cannot issue an Ordinance without instructions from

the President in three cases where the assent of the President would have been

required to pass a similar Bill.

Why Rate of Ordinances Increasing in India?

The reason for rise in the promulgation of ordinances in India is the frequent

disruption of Parliament that bars the enactment of legislation. Parliament

exists for enacting laws. These members of Parliament debate theappropriateness of legislation to accomplish societal goals. Sets of procedures

have been adopted to assure fair and thorough discussion by all. Adjournments

caused by disruptions and pandemonium, holding of dharnas by members

rushing to the well of the House and unwillingness to participate in discussions


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are some of the concerns impacting the functioning of the Parliament. When

Parliament is disrupted regularly, their capacities to make laws get affected.

Thus, the government has grabbed the lawmaker’s role. It enacts executive-

made, presidential law – called ordinance – to address even routine affairs likeappointing a particular individual in a specific position in the Prime Minister’s

Office. The promulgation of ordinance, which has never been voted upon

publicly, must occur only during extraordinary exigencies and compelling

circumstances has become a mere piece of textbook knowledge with no

practical relevance and ignored by all concerned, making Parliament and Indian

democracy a mockery.

Disruptions in Parliament, in no way, justify the option of using ordinance-

route to enact laws. Disruptions must end.

Misuse of Ordinance

Once an ordinance is framed, it is to be laid before Parliament within sixweeks of its first sitting. Parliament is empowered to either choose to pass the

ordinance as law or let it lapse. Once the ordinance is laid in Parliament, the

government introduces a bill addressing the same issue. This is typically

accompanied by a memorandum tabled by the government, explaining the

emergent circumstances that required the issue of an ordinance. Thereafter, the

bill follows the regular law-making process. If Parliament does not approve the

ordinance, it ceases to exist. The drafters of the Constitution created this

check on the law-making power of the executive to reinforce the notion that

law-making will remain the prerogative of the legislature.

Since the beginning of the first Lok Sabha in 1952, 637 Ordinances have been

promulgated.

Over the 15th Lok Sabha (2009-2013), there have been 16 ordinances, indicating

a decline in the number of ordinances being issued every year. The new

government has already issued eight ordinances in 225 days since assuming

office — an average one every 28 day.

But not all of the ordinances are reform-oriented. Some, such as the one that

regularises 895 unauthorised Delhi colonies, and another that allows e-rickshaws

to ply their trade in the city-state have been pushed post-haste with an eye on

the Delhi elections. The another ordinance that gives life-long visas to people

of Indian Origin (PIOs) was pushed through ostensibly because the Prime

Minister wanted to keep a promise he’d made when he addressed the Indiandiaspora in the US last year.

This cleary show that the ordinance-making power was not used for the purpose

it was meant for, but to deal with failures in negotiating the legislative process.

Reformulating an ordinance is another unhealthy trend. In 1967-81 Bihar

Governor promulgated 256 ordinances while assembly passed only 189 Acts.

Of them, many were re-promulgated several times. Sugarcane ordinance was

promulgated and re-promulgated for 13 years. There were also instances where

50 ordinances were promulgated in a day. The Supreme Court in famously

known as ‘Ordinance Raj’ Case emphasized that “the power to promulgate an

ordinance is essentially a power to be used to meet an extraordinary situationand it cannot be allowed to be perverted to serve political ends”.

It is the function of the Legislature which is a representative body to make

law; the Executive cannot continue the provisions of an ordinance in force


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without, going to the Legislature. “If the Executive were permitted to continue

the provisions of an ordinance in force by adopting the methodology of re-

promulgation without submitting to the voice of the Legislature, it would be

nothing short of usurpation by the Executive of the law-making function of

the Legislature”.

There is thus a repeated and deliberate attempt to push through policy

prerogatives by taking the ordinance route. Sometimes this has been justified

on the grounds of delays by parliamentary committees and at others by giving

reasons that do not seem to meet the “necessary… to take immediate action” test.

To be fair, there have been instances where the use of the ordinance-making

power has seemed more legitimate. One example would be the Ancient

Monuments and Archaeological Sites and Remains (Amendment and Validation)

Ordinance, 2010, which was promulgated to meet a deadline imposed by the

Delhi High Court. Yet another would be the Indian Medical Council

(Amendment) Ordinance, 2011, under which the government dissolved theMedical Council of India. Yet, the overarching narrative has been that of

misuse, if not outright abuse. One check against this move may have been

strong judicial review of the grounds on which ordinances are promulgated.

The approach of the apex court has, however, been to protect the sanctity of

this power of the executive rather than subject it to strict review.

Conclusion

Our Constitution is based on the principle of separation of powers and the

legislature’s primary task is to make laws for good governance. In theory, our

parliamentarians are expected to discuss debate and deliberate on various bills

introduced before them and after suitable changes, enact them into law. As inmany areas, the yawning gap between what the Constitutions contemplates in

theory and what actually happens is most evident in the manner in which our

Parliament functions.

In theory, members take an oath under Schedule III to preserve, protect and

uphold the Constitution. In practice, the oath is modified to paralyse Parliament

by entering the well and disrupting proceedings on a regular basis. Indeed, a

successful Opposition seems to be one that does not allow Parliament to

function. Now, if laws cannot be enacted because Parliament has been made

dysfunctional, an ordinance is the only route open to a government. Similarly,

the ordinance route is resorted to when the ruling party does not have a

majority in the Rajya Sabha.

If members stop paralysing Parliament, the ruling party will have no excuse for

promulgating an ordinance except in a grave emergency. In the end, our

Constitution confers different types of power expected to be used in specific

situations. The founding fathers expressed the fond hope that it would be

sparingly used and our elected representatives must honour the trust reposed

in them.

Frequent Disruptions of Parliament and its

Impact

The broad outline of parliamentary democracy is widely known. People elect

representatives to parliament. These members of parliament debate the

appropriateness of legislation to accomplish societal goals. For that, provision

of debate has been made so that useful legislation that has popular support can


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be designed and for this some sets of procedures have been adopted to assure

fair and thorough discussion by all.

Further in parliamentary form of government, MPs are required to keep the

government in check and oversee its functioning. One of the ways in which

they do so is by asking ministers questions about the work done by their

ministries. Ministers respond to such questions during the first hour of

Parliament, which is known as question hour. Based on the response, MPs can

cross-question and corner the minister by asking supplementary questions. On

certain occasions, they are also able to extract assurances from the minister to

take action on certain issues. When question hour is disrupted, not only are

these opportunities lost, it also leads to ineffective scrutiny of the work done

by the various ministries of the government. As per available data in 2012, out

of the 146 hours allocated for question hour in both Houses of Parliament,

roughly only 57 hours were utilized.

Adjournments caused by disruptions and pandemonium, holding of dharnas by members rushing to the well of the House and unwillingness to participate

in discussions are some of the concerns impacting the functioning of the

Parliament.

When Parliament is disrupted regularly, its capacity to make laws is also affected.

Disruptions in Parliament also eat into the time available for discussing a bill

in the house. In previous Lok Sabha, roughly 35 per cent of bills were passed

with an hour or less of debate, a case being the sexual harassment bill, which

was passed by Lok Sabha in just 16 minutes. Some would argue that since

parliamentary committees scrutinize most bills in detail, there is no harm done

if the bills are not debated in the House. However scrutiny of a bill behind

closed doors is hardly a substitute for spirited debates on the merits and demerits

of a bill on the floor of the House.

Forms of Parliamentary Disruption

Parliamentary disruption may be divided into two categories. The first entails

actions which, primarily, affect the working of parliament directly. They range

from acts which completely stop parliamentary action, e.g., those which lead

to adjournments, to acts which merely interfere with the conduct of business

without leading to the adjournment of parliament, e.g., a moderate level of

shouting or interrupting speakers. Clearly, the latter may or may not escalate

to produce the former. Whether it does or does not depends in part on the

actions and judgment of the Speaker, the leaders of the political parties in

parliament, as well as the members themselves.

The second entails actions which primarily affect the working of the parliament

indirectly. They involve actions such as the members’ absence or departure

from parliament. Of course, the departure of members from the parliamentary

chamber may have an immediate and direct impact on the functioning of that

legislative body. What is common to all forms of disruptive behavior is the

fact that they interfere, in some manner, with the way parliament is supposed

to function as defined by its rules and procedures.

Economic loss due to disruption of Parliament

There have been some estimates of loss caused by Parliament being disrupted,

based on the annual budget of Parliament. This is an incorrect way of judging

the cost. The actual cost is the economic loss caused by the delay in passing

important bills and by the insufficient oversight of government functioning. It


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is difficult to quantify the loss ensuing from the delay in passing various pieces

of legislation. However, it is obvious that not implementing many of the

above bills would have significant costs for various stakeholders’ students and

farmers, for instance. If the delay results in slower economic growth, it would

also have implications for tax collection. Here is a sampler: a 1 per centslowdown in GDP growth amounts to a loss of about Rs 90,000 crore to the

economy and about Rs 15,000 crore in tax collections. It is important that

Parliament focuses on discussing key bills and passing them with the appropriate

amendments, rather than stalling them indefinitely.

The washout of the recent Monsoon Session has led to Rs 260 crore loss of

taxpayer money — Rs 162 crore in Lok Sabha and Rs 98 crore in Rajya

Sabha.

Parliament did not function for 91% of its scheduled time in the first week.

There were 11 pending bills, 9 new bills to be introduced and one to be taken

up for consideration and passing. These are in Lok Sabha: Land AcquisitionBill and SC and ST (prevention of atrocities) Amendment Bill 2014; in Rajya

Sabha: Whistleblowers Protection (amendment) Bill 2015; Mental health care

Bill, 2013; Prevention of Corruption (Amendment) Bill 2013; Child Labour

Amendment Bill 2012; Real Estate (regulation & development) Bill 2013;

Juvenile Justice Amendment Bill 2015 and Constitution (122nd) Amendment

Bill 2014.

A variety of specific problems that adversely affect democracy are said to

arise out of the disruptions.

• It prevents action on important legislation.

• It forces the adoption of critical legislation without debate.

• It has empowered parliamentarians who lack appropriate skills.

• It undermines the credibility of party leaders.

• It undermines respect for the MPs and MLAs.

Methods for strengthening institutional mechanisms within Parliament

a) Any motion or discussion has to be taken up if a certain number of MPs

gives a written notice. The no-confidence motion requires just 50 MPs

(slightly less than 10% of the strength of the House) to be admitted. Thethreshold can be increased, and suitable thresholds fixed for discussions

without a vote and voting motions. For example, there could be a new

rule for discussion if a certain percentage of the strength of the House

(say 20%) asks for it, and a voting motion if a certain percentage of MPs

(say 30%) gives a written notice.

b) Guarantee some time for the opposition. The British Parliament allocates

20 days a year when the agenda is decided by the opposition. It also

requires Parliament to meet more frequently.

c) Public participation and feedback in the pre-legislative process would

strengthen a draft Bill by ensuring that differences in viewpoints areaddressed before its introduction. This would make it easier for

Parliamentarians to resolve conflicting objectives while considering it in

Parliament. In its 2002 Report, the National Commission to Review the

Working of the Constitution also recommended that, “all major social


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and economic legislation should be circulated for public discussion to

professional bodies, business organisations, trade unions, academics and

other interested persons.”

d) A fixed number of parliamentary sittings per year should be declared incalendar.

e) The Parliamentary Standing committee system should be strengthened by

having a higher attendance requirement and by the induction of experts

in an advisory capacity.

Importance of Post of Governor

The federal structure of Indian democracy ensures that States, like the Centre,

have a parliamentary form of government headed by the Governor.

The Governor of a State plays a multifaceted role. Under the Constitution,

Governor is expected to play a double role, as the head of the State and as therepresentative of the Centre. In the normal circumstances, he acts as a vital

link between the Central and the State Government.

Though the Central Government has been kept strong in the Indian federal set

up by providing more powers under the Constitution. Moreover, the procedure

of appointment and the removal of the Governor, also make the Centre strong

because his term of office is not secure and he acts only on the directions of

the Centre.

But the post of Governor is not merely of symbolic importance. He plays a

crucial role in smooth functioning of federal democracy. Fixed tenure for the

Governor ensures continuity in the State administration as, even though Chief Ministers may come and go, the Governor remains for a period of five years.

Unfortunately the current position of law permits the Centre to dismiss a

Governor without even assigning any reasons.

Constituent assembly debate over the Post of Governor

The post of Governor is not an elected one unlike the President who is indirectly

elected. The Governor is appointed by the President (Art. 155) and holds

office for five years subject to the pleasure of the President.

There were many debates about the election of the Governor. Some people

wanted popularly elected Governors but some were dead against this proposal.Ultimately the drafting committee of the Constitution decided that the Governor

would be appointed by the President. As a result, different parties manipulated

the appointment of the Governor on the one hand, and on the other, Governors

started following the command from the Central Government in order to

make the Ministers happy at the Centre in anticipation of gaining higher

political positions.

In addition to appointment, the makers of the Constitution also decided to

keep the discretionary powers intact despite many objections. Though the

framers of the Constitution speculated that the Governor would use his or her

rational capacity while using the discretionary powers, instead of performing

the constitutional obligations the Governors started playing a dictatorial role toplease their political bosses at the Centre.

Thus, we see that the framers of the Constitution endowed the Governor with

certain powers with the hope that the Governor would use these powers to


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keep India united, but the Governors and Central governments misused the

institution of the Governor to fulfill their political interests.

Sarkaria Commission recommendations related post to Governor

The Sarkaria Commission submitted its report to the Union Government. It

focused upon the role of the Governor and gave the following recommendations

regarding the Governor:

A. On the appointment of the Governor:

1. He should be a man of some eminence in some field.

2. He should not belong to the State where he has to serve as the Governor.

3. He should be a detached figure with little record of participation in the

local politics of the State.

4. He should be a person who has not taken too great a part in politics

generally, particularly in the recent past.

5. Preference should continue to be given to the minority groups as hitherto.

6. It is desirable that a politician from the ruling party at the Centre should

not be made the Governor of a State run by another party or a coalition

of parties.

7. Article 155 of the Constitution should be suitably amended to ensure

effective consultation with the Chief Minister of a State while appointing

a Governor in that State.

8. The Vice-President of India and the Speaker of the Lok Sabha should also

be consulted while making this appointment though this consultation

should be ‘confidential’, ‘informal’ and not a matter of constitutional

obligations.

The above-mentioned recommendations show that the Sarkaria Commission

has made many suggestions regarding the appointment of the Governor but it

has failed to show how these recommendations can be implemented. Therefore,

the matter regarding the appointment of the Governor still lies in the hands

of Central Government.

B. On Discretionary Powers of the Governor

Article 163 provides the Governor with wide-ranging powers. Since the Governor

decides everything, sometime he plays a dictatorial role to fulfil partisan

interests. As a result, some of the States demanded the deletion of the

discretionary powers of the Governor but the Commission rejected it. Instead,

it suggested that Article 163 should be left untouched. Hence, it proposed the

continuance of this power but it also said that it should be used only as a last

resort.

It made clear that the Governor can still misuse the discretionary powers for

partisan interests.

It points out Article 356 should be used very sparingly, in extreme cases, as

a measure of last resort, when all available alternatives fail to prevent or rectify

the breakdown of the constitutional machinery.


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In conclusion, we can say that Sarkaria Commission has taken many initiatives

to stabilise Center-State relations regarding the role of the Governor.

Punchhi Committee Report on Governor

The Government of India set up a commission on Centre-state relations in2007 to look into the new issues of Centre-state relations keeping in view the

changes that have been taken place in the polity and economy of India since

the Sarkaria Commission had last looked at the issue of Centre-state relations

over two decades ago. The recommendations are as follws:

A. On Appointment and Removal of Governors

Given the status and importance conferred by the Constitution on the office

of the Governor and taking into account his key role in maintaining

Constitutional governance in the State, it is important that the Constitution

lays down explicitly the qualifications or eligibility for being considered for

appointment. Presently Article 157 only says that the person should be acitizen of India and has completed 35 years of age.

The Sarkaria Commission approvingly quoted the eligibility criteria that

Jawaharlal Nehru advocated and recommended its adoption in selecting

Governors. These criteria are:

1. He should be eminent in some walk of life;

2. He should be a person from outside the State;

3. He should be a detached figure and not too intimately connected with the

local politics of the States; and

4. He should be a person who has not taken too great a part in politics

generally and particularly in the recent past.

The words and phrases like “eminent”, “detached figure”, “not taken active

part in politics” are susceptible to varying interpretations and parties in power

at the Centre seem to have given scant attention to such criteria. The result has

been politicization of Governorship and sometimes people unworthy of holdingsuch high Constitutional positions getting appointed. This has led to some

parties demanding the abolition of the office itself and public demonstration

against some Governors in some States. This trend not only undermines

Constitutional governance but also leads to unhealthy developments in Centre-

State relations.

The Commission is of the view that the Central Government should adopt

strict guidelines as recommended in the Sarkaria report and follow its mandate

in letter and spirit lest appointments to the high Constitutional office should

become a const an t ir ritan t in Centre -S ta te re la tions and sometimesembarrassment to the Government itself.

Governors should be given a fixed tenure of five years and their removal

should not be at the sweet will of the Government at the Centre. The phrase“during the pleasure of the President” in Article 156 should be substituted by

an appropriate procedure under which a Governor who is to be reprimanded

or removed for whatever reasons is given an opportunity to defend his positionand the decision is taken in a fair and dignified manner befitting a Constitutional

office.

It is necessary to provide for impeachment of the Governor on the same lines

as provided for impeachment of the President in Article 61 of the Constitution.


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The dignity and independence of the office warrants such a procedure. The

“pleasure doctrine” coupled with the lack of an appropriate procedure for the

removal of Governors is inimical to the idea of Constitutionalism and fairness.

Given the politics of the day, the situation can lead to unsavory situations and

arbitrariness in the exercise of power. Of course, such impeachment can only be in relation to the discharge of functions of the office of a Governor or

violations of Constitutional values and principles. The procedure laid down for

impeachment of President, mutatis mutandis can be made applicable for

impeachment of Governors as well.

B. On Governors’ discretionary powers

Article 163(2) gives an impression that the Governor has a wide, undefined

area of discretionary powers even outside situations where the Constitution

has expressly provided for it. Such an impression needs to be dispelled. The

Commission is of the view that the scope of discretionary powers under

Article 163(2) has to be narrowly construed, effectively dispelling theapprehension, if any, that the so-called discretionary powers extends to all the

functions that the Governor is empowered under the Constitution. Article 163

does not give the Governor a general discretionary power to act against or

without the advice of his Council of Ministers. In fact, the area for the

exercise of discretion is limited and even in this limited area, his choice of

action should not be nor appear to be arbitrary or fanciful. It must be a choice

dictated by reason, activated by good faith and tempered by caution.

In respect of Bills passed by the Legislative Assembly of a State, the Governor

is expected to declare that he assents to the Bill or that he withholds assenttherefrom or that he reserves the Bill for the consideration of the President.

He has the discretion also to return the Bill (except Money Bill) for re-consideration of the House together with the message he might convey for the

purpose. If on such reconsideration the Bill is passed again, with or withoutamendments, the Governor is obliged to give his assent. Furthermore, it is

necessary to prescribe a time limit within which the Governor should take thedecision whether to grant assent or to reserve it for consideration of the

President.

On the question of Governor’s role in appointment of Chief Minister in thecase of an hung assembly there have been judicial opinions and

recommendations of expert commissions in the past. Having examined thosematerials and having taken cognizance of the changing political scenario in the

country, the Commission is of the view that it is necessary to lay down certainclear guidelines to be followed as Constitutional conventions in this regard.

These guidelines may be as follows:

1. The party or combination of parties which commands the widest support

in the Legislative Assembly should be called upon to form the

Government.

2. If there is a pre-poll alliance or coalition, it should be treated as one

political party and if such coalition obtains a majority, the leader of such

coalition shall be called by the Governor to form the Government.

3. In case no party or pre-poll coalition has a clear majority, the Governor

should select the Chief Minister in the order of preference indicated below:

(a) The group of parties which had pre-poll alliance commanding the

largest number.


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(b) The largest single party staking a claim to form the government with

the support of others.

(c) A post-electoral coalition with all partners joining the government.

(d) A post-electoral alliance with some parties joining the governmentand the remaining including independents supporting the government

from outside.

On the question of dismissal of a Chief Minister, the Governor should invariably

insist on the Chief Minister proving his majority on the floor of the House for

which he should prescribe a time limit.

On the question of granting sanction for prosecution of a State Minister in

situations where the Council of Ministers advised to the contrary, the

Commission would endorse the interpretation given by the Supreme Court to

the effect that “if the Cabinet decision appears to the Governor to be motivated

by bias in the face of overwhelming material, the Governor would be withinhis rights to disregard the advice and grant sanction for prosecution”. The

Commission recommends that Section 197 Criminal Procedure Code may be

suitably amended to reflect the position of law in this regard.

Thus the Sarkaria Commission & Punchhi Commission recommended to create

a balance between Centre & State relations.

Provisions Related to Removal of Governor

In the Indian Republic, the state Governor stands at the head of the Executive

power of any state in India, just like the President who is the head of the

executive power in the Union. The Governor is the nominal head of a state,unlike the Chief Minister who is the real head of a state in India. In other

words, although all executive actions of an Indian state are taken in the name

of the Governor, and all executive powers are vested in the Governor, in

reality, the Governor merely gives his consent to the various executive actions.

As per Article 155 and Article 156 of the Constitution, a Governor of a state

is an appointee of the President, and he or she holds office “during the pleasure

of the President”. If a Governor continues to enjoy the “pleasure of the

President”, he or she can be in office for a term of five years. Because the

President is bound to act on the aid and advice of the Council of Ministers under

Article 74 of the Constitution, in effect it is the central government that

appoints and removes the Governors. “Pleasure of the President” merely refersto this will and wish of the central government.

The Pleasure Doctrine has its origin in English law, with reference to the tenure

of public servants under the Crown. There is a distinction between the doctrine

of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a

democracy governed by rule of law. In a nineteenth century feudal set-up

unfettered power and discretion of the Crown was not an alien concept.

However, in a democracy governed by Rule of Law, where arbitrariness in any

form is eschewed, no Government or Authority has the right to do what it

pleases. The doctrine of pleasure does not mean a licence to act arbitrarily,

capriciously or whimsically. It is presumed that discretionary powers conferred

in absolute and unfettered terms on any public authority will necessarily and

obviously be exercised reasonably and for public good.

In a constitutional set up, when an office is held during the pleasure of any

Authority, and if no limitations or restrictions are placed on the “at pleasure”


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doctrine, it means that the holder of the office can be removed by the authority

at whose pleasure he holds office, at any time, without notice and without

assigning any cause. The doctrine of pleasure, however, is not a licence to act

with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does

not dispense with the need for a cause for withdrawal of the pleasure. In other words, “at pleasure” doctrine enables the removal of a person holding office

at the pleasure of an Authority, summarily, without any obligation to give any

notice or hearing to the person removed, and without any obligation to assign

any reasons or disclose any cause for the removal, or withdrawal of pleasure.

The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the

Authority, but can only be for valid reasons.

Contradictory nature of Article 156

Literally within the domain of Article 156(1) of the Constitution, Governor

is to hold office during pleasure of the President. But within the ambit of

clause 3 of this section, it is specifically enshrined that subject to the forgoingprovisions of this section, the Governor shall hold office for a term of five

years. Thus intentionally and deliberately, clause 3 of Article 156 has been

eclipsed by clause 1 of Article 156 of the constitution. The framers of the

Constitution have locked the modus operandi of removal of the Governor in

this Article of contradictory effect. It is significant to mention here that Article

61 of the Constitution provides the method of impeachment for the removal

of the President, but the Constitution nowhere does lay down the process of

removing the Governor of the State except by the central authority. In other

words the Centre Government absolutely enjoys the power for the removal of

the State Governor at any time, even without assigning any reason. Obviously,

the Centre Government is in a position to keep the Governor, always under

the influence.

In fact Article 156 of the Constitution is not in consonance with the true spirit

of the Constitution. In the United States, the Governor of a State can be

removed by the process of impeachment by the State legislative body. Some

State Constitutions provide the recalling method of a Governor by popular

vote. In Canada, the Lieutenant

Governor of the Province under Article 5 of the British North American Act

1867 may be removed by the Governor General.

Thus, the issue of the appointment and removal of the Governor is the sole

right of the Union Government and States have no voice on this issue. It isvery strange to note that Constitution, on the one hand, has made the Governor

‘representative’ of the Centre and has granted him some discretionary powers,

but on the other hand the Constitution has kept him completely free from the

elected representatives of the State. There is no effective check on the powers

of the Governor by the State which can prevent him from misusing his authority.

The state legislature, thus, has been deprived of the right of removing a

Governor.

Politicalisation of Article 156

A constitutional authority like that of Governor in India can enjoy the perks

and a liveried status only during pleasure of the President as per thecontemplation of Article 156 of the Constitution. President’s displeasure and

that too in absence of any safeguard, can kick the Governor out of the palatial

‘Raj Bhawan’ as and when desired by the Central Government. In the presence

of confronting provisions of the Constitution relating to his term of office, the


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Governor can remain moribund and eclipsed whereas his execution of powers

and particularly the execution of discretionary powers are concerned. The

compatibility of removal and displeasure in turn adversely affect the decision

making process of the Governor whereas his special and discretionary powers

are concerned.

In the real effect and substance, the Governor looks after as well as nourishes

the interests of the party or alliance to which he is politically related. He isthere in the State to care for the interests of the leaders of party as well as the

interests of workers of the party which has inducted him in the State. These

party leaders and party workers are in a position to attract the vote bank of

the State in favor of the party to which the Governor is politically related.

Governor in the real sense is a protem of the party in power. As a naturalcorollary, he is to look after the vested interests and health of the party in

power to which he is politically related. Consequently, his judgment is bound

to affect the State’s decision making process by the ideas which he already hason his slate. In this state of mind intrinsically he will be pushed to do evenapolitical act to safeguard the health of his party, may it adversely affect the

smooth functioning of the State. While passing through this sort of affairs, off

and on, he has to act as a cross Governor. It is submitted that the contradictory

provisions relating to his tenure of office are the hurdle in his path to berealized as a positive Governor. Thus, Article 156 of the Constitution is used

and misused to meet the partisan ends of the party in power at the Centre.

The Supreme Court’s interpretation

In 2010, a constitutional bench of the Supreme Court interpreted these

provisions and laid down some binding principles (B.P. Singhal v. Union of India). In this case, the newly elected central government had removed the

Governors of Uttar Pradesh, Gujarat, Haryana and Goa in July, 2004 after the

14th Lok Sabha election. When these removals were challenged, the Supreme

Court held:

1. The President, in effect the central government, has the power to removea Governor at any time without giving him or her any reason, and without

granting an opportunity to be heard.

2. However, this power cannot be exercised in an arbitrary, capricious or unreasonable manner. The power of removing Governors should only beexercised in rare and exceptional circumstances for valid and compelling

reasons.

3. The mere reason that a Governor is at variance with the policies andideologies of the central government, or that the central government has

lost confidence in him or her, is not sufficient to remove a Governor. Thus, a change in central government cannot be a ground for removal of

Governors, or to appoint more favourable persons to this post.

4. A decision to remove a Governor can be challenged in a court of law. Insuch cases, first the petitioner will have to make a prima facie case of

arbitrariness or bad faith on part of the central government. If a primafacie case is established, the court can require the central government to

produce the materials on the basis of which the decision was made inorder to verify the presence of compelling reasons.

In summary, this means that the central government enjoys the power toremove Governors of the different states, as long as it does not act arbitrarily,

without reason, or in bad faith.


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Recommendations of Various Commissions

Three important commissions have examined this issue.

The Sarkaria Commission (1988) recommended that Governors must not be

removed before completion of their five year tenure, except in rare andcompelling circumstances. This was meant to provide Governors with a

measure of security of tenure, so that they could carry out their duties without

fear or favour. If such rare and compelling circumstances did exist, the

Commission said that the procedure of removal must allow the Governors an

opportunity to explain their conduct, and the central government must give

fair consideration to such explanation. It was further recommended that

Governors should be informed of the grounds of their removal.

The Venkatachaliah Commission (2002) similarly recommended that ordinarily

Governors should be allowed to complete their five year term. If they have

to be removed before completion of their term, the central government should

do so only after consultation with the Chief Minister.

The Punchhi Commission (2010) suggested that the phrase “during the pleasure

of the President” should be deleted from the Constitution, because a Governor

should not be removed at the will of the central government; instead he or she

should be removed only by a resolution of the state legislature.

The above recommendations however were never made into law by Parliament.

Therefore, they are not binding on the central government.

However the present scenario demands that the grounds for the removal of the

Governor be expressively castigated in the Constitution and the removal process

should be on the same grounds and in the same manner as the removal processof a judge of the Supreme Court or the High Court. These constitutional

reforms are necessary to strengthen the role of the Governor and to make it

more effective and meaningful. The observations of Pandit Jawaharlal

Nehru, in this context, are worth quoting here:

“We have made a Constitution and we should abide by the Constitution,

nevertheless, let it not be said that that Constitution, every part of it, every

chapter and corner of it, is something that is so sacrosanct that it cannot be

changed even if the needs of the Country or the Nation so required.

Undoubtedly, it can be changed whenever necessary, not lightly but after full

thought, if it is thought that the part of the Constitution comes in the way of the nation’s progress.

Scrapping of GOMs and EGOMs

The new NDA government of India has abolished all the 30 ministerial groups

(nine empowered groups of ministers (EGOMs) and 21 groups of ministers(GOMs)), which were set up to take decisions on various matters before

bringing them for the cabinet’s consideration. In this write up we are discussing

about the meaning of GoMs & EGoMs and impact of its scrapping.

What are GoMs and eGoMs?

GoMs were small groups of ministers that meet to resolve conflicting viewswithin the council of ministers. Decisions taken by the GoMs had to be

approved by the cabinet. This tradition was started by the Atal Bihari Vajpayee-

led NDA government. The UPA government took this practice a step further

by setting up eGoMs. Recommendations by GoMs had to be approved by


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cabinet while EGoMs were authorised to decide on their own. UPA 1 set up

about 80 GoMs and eGoMs, and UPA 2 took this figure to about 120.

Such ministerial panels were reported to have been formed whenever the Cabinet

or its Committees wanted to have further deliberations for resolution of various

issues. From the pricing of a stake sale in government companies to sanctioning

of new Metro rail projects and considering steps to curb corruption, GoMs and

eGoMs were set up for a wide variety of eclectic subjects.

The GoMs brought into play collective wisdom and institutional experience. It

acted as a single window clearance system. In the coalition era, GoMs and

EGoMs did serve the purpose for which they were set up. They decided

several contentious issues, including the plan for restructuring Air India, the

amendments to strengthen India’s anti-rape laws following the Delhi gang rape,

the allocation of natural gas to different industries and 2G spectrum pricing in

the aftermath of the 2G scam, among several other decisions. But they had

also brought policy paralysis in the system due to long deliberations. Telangana,for instance, was first referred to a ministerial panel in 2004. Discussions

continued till 2012.

Aftereffects

• Ensure greater accountability.

• Expedite the process of decision-making.

• Ensure greater empowerment of ministries and department.

• The concept was also criticized for diluting the doctrine of Cabinet

responsibility.• PM will have the last word on policy-making.

• The move would lead to a better sense of transparency in governmental

functioning, fast- track decision-making processes and increase

accountability.

Credibility Crisis of Central Bureau of

Investigation (CBI)

During the early stages of World War-II, the then Government of India realized

that the enormously expanded expenditure for purposes connected with the

war had brought about a situation in which unscrupulous and antisocial persons,

both officials and non-officials, were enriching themselves dishonestly at the

cost of the public and the Government. It was felt that the Police and other

Law Enforcement Agencies, which functioned under the State Governments,

were not adequate to cope with the situation. It was under these circumstances,

that the setting up of a separate organization to investigate offences connected

with these transactions became a dire necessity. Consequently, the organization

known as the Special Police Establishment (S.P.E.) was created under a Deputy

Inspector- General of Police by the Government of India, in 1941, by an

executive order.

The functions of the S.P.E. were to investigate cases of bribery and corruptionin transactions with which the War and Supply Department of the Government

of India was concerned.

Even after the end of the War, the need for a Central Government agency to

investigate cases of bribery and corruption by Central Government employees


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was felt. This was subsequently replaced by the Delhi Special Police

Establishment 1946. This Act transferred the superintendence of the SPE to

the Home Department and its functions were enlarged to cover all departments

of the Govt. of India. The jurisdiction of the SPE extended to all the Union

Territories and could be extended also to the States with the consent of theState Government concerned.

The DSPE renamed as Central Bureau of Investigation (CBI) in 1963. Initiallythe offences that were notified by the Central Government related only tocorruption by Central Govt. servants. In due course, with the setting up of alarge number of public sector undertakings, the employees of these undertakingswere also brought under CBI purview. Similarly, with the nationalization of the banks in 1969, the Public Sector Banks and their employees also came withinthe ambit of the CBI.

As the CBI, over the years, established a reputation for impartiality and

competence, demands were made on it to take up investigation of more casesof conventional crime such as murder, kidnapping, terrorist crime, etc. Apartfrom this, even the Supreme Court and the various High Courts of the country

also started entrusting such cases for investigation to the CBI on petitions filed by aggrieved parties.

It was therefore decided in 1987 to constitute two investigation divisions in theCBI, namely, Anti-Corruption Division and Special Crimes Division, the latter dealing with cases of conventional crime, besides economic offences.

Even though the CBI is empowered to investigate all offences notified by theCentral Government under Section 3 of the DSPE Act, 1946, it does not take

up all such cases keeping in view its limited resources and its powers being

concurrent and coextensive with those of the State Police Forces, which if exercised without coordination with the State Police, might lead to conflict andduplication of efforts. To avoid such duplication, an administrative arrangementhas been arrived at by CBI with the State Police Forces, according to which:

a) The cases, which are substantially and essentially against CentralGovernment employees or concerning affairs of the Central Government,

shall be investigated by CBI although certain employees of the StateGovernment may also be involved. The State Police or State Anti-Corruption Bureau will render necessary assistance to the CBI, during

investigation and prosecution of such cases.

b) The cases, which are essentially and substantially against State Governmentemployees or are in respect of matters concerning the State Government,shall be investigated by the State Police irrespective of the fact that certainemployees of the Central Government are also involved as co-accused.CBI will just assist them.

c) Cases relating to the breaches of Central Laws; Big cases of fraud, cheating,embezzlement etc; Cases having interstate and international ramificationsCBI will be the sole authority engaged in investigation of cases.

The Parliament has passed Lokpal and Lokayuktas Act, 2013. According tothe Act, selection of Director, CBI is to be done by a High Powered Committeechaired by Hon’ble Prime Minister of India. Lokpal will also havesuperintendence over CBI for cases referred to it by the Lokpal.

Recently according to Supreme Court judgment, the Central Bureau of

Investigation (CBI) does not need the government’s permission to investigatesenior bureaucrats in court-monitored corruption cases.


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Credibility of CBI

The strength of a country is determined by the credibility of its institutions

and not so much by the numerical strength of its institutions. The founding

fathers of the Indian Constitution took great care to establish certain institutions

which would work as the bulwark of democracy and ensure justice, liberty,

equality and fraternity to citizens. These institutions are unfortunately under

attack by a predatory executive.

In its initial years the organisation was widely respected on account of the high

calibre and integrity of its directors like D P Kohli, F V Arul and others

backed by the high degree of professionalism of its investigating officers and

inbuilt multi-layered decision making procedures and strict internal vigilance

mechanism.

It was also able to maintain a much more impressive track record of securing

convictions, as compared to the state anti-corruption bureaus which perform a

similar function in respect of the state government employees, largely by being

selective in registering offences and the expertise and professionalism of its

investigating officers built over years.

Over the years, its charter was expanded to not only investigate cases of

bribery against central government employees but also serious fiscal crimes,

including hawala transactions, trans-border offences having national security

ramifications, anti-terrorism cases etc, thus transgressing into the State List

under the Constitution.

But the CBI has recently been prominently in the news. The Supreme Court

had placed the allegations against the Director of Central Bureau of Investigation(CBI) for meeting persons linked with the 2G scam and coal scam at his

residence. The court, which is currently monitoring investigation into these

corruption cases, has evidence reflected in the entries in the visitors register

maintained by his security staff. It is a matter of grave concern that the

agency is facing such a crisis of credibility. The CBI has often been criticised

for its alleged failure to function impartially and objectively as an agency of

law, but simultaneously there has always been an ever-increasing demand for

investigation of complicated cases involving influential persons to be handed

over to the CBI. This happens despite the fact that the record of CBI in such

cases has not been very laudable.

The Police though are a state subject, the public do not have faith in their ownpolice forces. The public want a police organisation, which would not allow

anyone to rise above the law of the land. They expect the CBI to always do

better investigations than their own police forces. Two things are needed for

quality investigations- skill and impartiality.

According to few, the CBI has achieved its eminence as a premier investigating

agency in the country by default. The CBI is great because the state police

forces are poor. After all, the majority of senior officers and a large number

of other ranks and men in the CBI are on deputation from the state police

forces- the same forces that are considered inferior to the CBI. There are,

however, a few significant differences between the CBI and the state policeforces. One, the CBI is a specialised agency, doing only crime investigation

work, while the state police have to perform multifarious tasks. Two, the level

at which crime investigation work is done and supervised is higher in the CBI

than what it is in state police forces. Three, the CBI does not have to interact


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with the public as closely and frequently as the state police forces do. In any

case, the organisation, unlike the state police, is not required to confront the

public in many adversarial roles, requiring use of force.

The CBI is definitely not very effective when it comes to dealing with crimescommitted by serving politicians belonging to the party in power. Thus CBI

credibility can be questioned. There have been many cases where the CBI has

shown either reluctance to take up cases against ruling party politicians, or

when forced to do so, adopted dilatory tactics. In the Havala case, the Supreme

Court pulled up the CBI for showing “inertia” to investigate offences involving

influential persons. The CBI is also alleged to have been involved in cases

instituted mainly to harass and intimidate political opponents. The way the

CBI was manipulated and misused during the Emergency is now a part of

history. The CBI’s role in these cases was considered controversial.

The crooked politicians take advantage of the public perception that the CBI

in its work is occasionally influenced by political considerations. Even whereaction taken against them is perfectly legitimate and is as per the law, they

invariably pose as victims of political vendetta and witch hunting. The CBI’s

misfortune is that it is a police organisation. Like all police forces in the

country, it has been open and amenable to undesirable illegitimate influences

from its political masters.

From time to time, the central government has issued orders scuttling the

powers of the CBI so that it becomes a toothless tiger and highly dependent

on the government even in conducting its operations. During Rajiv Gandhi’s

time, a Single Directive was issued by the government, prescribing that no case

against an officer of the rank of Joint Secretary and above would even beregistered without written permission from the head of the government. In the

Havala case, the Supreme Court struck down the Directive as illegal, but the

Government of India has again brought it back by including it in the Central

Vigilance Commission Act of 2003. Earlier, it was only a set of executive

instructions; now it has become a part of law.

The Central Vigilance Commission, which was meant to provide the oversight

and support to the CBI, has also failed to give it the desired direction, or

insulate it from governmental interference. The CBI also does not have a cadre

of supervisory officers of its own and relies on the tedious and uncertain

system of induction of officers through deputation from the state police forces

and central police organisations.

Within the government, its control has been shifting from ministry to ministry.

Initially it was home, then department of personnel and training. Development

of requisite expertise in investigation and prosecution of anti-corruption cases

thus became a casualty. The organisation also could not keep itself afloat

above the rapid decline of the ethical and moral fabric of our body politic and

governance.

To reduce the load on the CBI, it is imperative to help the state CIDS to

acquire the requisite infrastructure, training and manpower resources to obtain

higher marks from the trial criminal courts in terms of convictions and also

retain a semblance of insulation from political and bureaucratic interference.

Thus if the CBI has to function as an impartial and effective organization,

certain measures are essential. One of these is to enact a law, which must

define the status, functions and powers of the CBI, lay down safeguards to


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ensure the objectivity and impartiality of the organisation and not allow anyone

to enjoy impunity.

Gram Nyalayas

Equality and justice are indisputably two key facets of the idea of a modern,

democratic, and constitution-adhering India. The principles of equality and

justice are realized by the State apparatus through the business of administration

of justice. India’s judicial system is characterized by systemic problems, including

corruption, delays, pendency, increasing costs, limited legal aid, and a lack of

appropriately trained lawyers and judges.

To overcome these problems the Law Ministry had set up Gram Nyayalays in

2009 with an aim to provide a cost-effective forum at the grass-root level for

the poor living in villages to settle legal matters. It was established by the

Gram Nyayalayas Act 2008

This Act perpetuates the phenomenon of two Indias – that of the better-

resourced urban citizen who can afford and has access to the courts, and the

other India of the impoverished – the more disconnected rural citizen, who

gets primary access to forums that focus primarily on disposing of their claims,

minus the application of essential safeguards of the legal process – lawyers,

appeals, procedural protections, and evidentiary requirements.

The Gram Nyayalaya was proposed by the 114th Law Commission in 1986.

The report recommended the concept of the Gram Nyayalaya with two

objectives. While addressing the pendency in the subordinate courts was the

major objective, the other objective was the introduction of a participatory

forum of justice. To make it participatory the Law Commission recommendedthat the Magistrate be accompanied by two lay persons who shall act as

Judges, that the legal training of the Magistrate will be complemented by the

knowledge of the lay persons who would bring in the much required socio-

economic dimension to adjudication. It was proposed that such a model of

adjudication will be best suited for rural litigation. The Law Commission also

observed that such a court would be ideally suited for the villages as the nature

of disputes coming before such a court would be ‘simple, uncomplicated and

easy of solution’ and that such disputes should not be enmeshed in procedural

claptrap.

Analysis of Gram Nyalayas The Gram Nyayalaya, the latest judicial mechanism to provide access to justice

at grass root level although, looks beautiful from its face, but, there may be

some practical difficulties in its functioning. The problems may be described

as:

• About the adequate number of courts to address whole of rural India-

Initially, It was decided to form Gram Nyayalaya for every 50000 people

and estimated 6000 Gram Nyayalaya is to be constituted and at present

the government has declared 5000 Gram Nyayalaya is to be constituted.

But, from the population and Nyayalaya ratio it can be apprehended that

the number of Nyayalayas cannot meet the whole of rural India. So manypeople cannot get the benefit of these courts.

• About adequate number of qualified nyayadhikaries- About the

appointment of nyaadhikaries, section -6(2) of the Act provides for adequate

representation from The SC, ST, Women and Other categories should be


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maintained, but, from the trend of employment in J.M.F.C of various

States it is found that sufficient number of candidates for each category

may not be available to be appointed for these posts. Thus, it may lead to

vacancy of posts to defeat the object of the Act.

• Regarding constitution of the courts- It is mentioned that Gram Nyayalaya

is the lowest court of subordinate judiciary and integral part of existing

judiciary. It is a court of JMFC, the magistrate/presiding officer of this

court will be called as Nyayadhikari. But, the court structure provided in

Cr.P.C does not provide for either Gram Nyayalaya or Nyayadhikari,

which may create confusion in the powers of the court.

• Regarding the court system- It is mentioned that Gram Nyayalaya is to

conduct the cases in close proximity of the cause of action and it will be

mobile court and the procedure is of aderverserial system of justice and

a time frame for judgment is also provided in it. Thus the court must go

to the place of cause of action at the request of the aggrieved party todecide the matter. For the time frame, it may not wait for the parties or

witness to prove the particular fact in issue and pass order. The question

arises, if the opposite party or all the necessary parties in case of civil

disputes are not available before that mobile court within the stipulated

time or if they want to avoid the court, and the court make an ex-parte

decree or it give the judgment from the facts and circumstantial evidences

it has. Such a decision cannot give justice to the effected party, there may

also be violation of natural justice to them and for which they may go to

regular court for enforcement of their right. In such case the object of the

Act to reduce the burden of cases in courts will be defeated.

• In the matter of summary trial and concept of Natural Justice- It is

provided in the Act that, all proceedings in criminal cases have been made

into summary one. Two important aspects of summary trial are that

charges are not framed and only the gist of the evidence is recorded .what

could begained if a full recording of evidence is given up in favor of

summary recording if not lip service to the question of speedy disposal.

But, by making summary trial, one is giving more room for the Judge to

exercise his discretion. Further, concept of Natural Justice provides for

fair trial and protection from reasonable bias. In criminal case the duty of

the State is to prove the case beyond all reasonable doubts. By summary

trial it may amount to not providing sufficient opportunity to the accused

for defense and discretion of Judge may turn to arbitrary.

• Lastly, regarding the duties of Nyayadhikari it is mentioned that the

Nyayadhikri has to assist, persuade and conciliate the parties apart

from their adjudicative function at the first instance of the case- But, If

the Nyayadhikaries are to assist, persuade, conciliate the parties, even

with the assistance of the conciliators then they have to be exposed with

the individual litigants in a particular litigation and in case the mediation

or conciliation of that particular litigation has failed and the aggrieved

parties come for adjudication of the matter in the same court. This may

lead to a situation of favoritism or bias.

The suggestions to improve functioning of Gram Nyalayas

Regarding the number of courts, as it is an early stage of constitution of these

new courts, the Government may consider the population court ratio from

practical point of view to form as many courts to achieve the objective of the


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Act. Similarly, as the courts are to be opened in phased manner, so the rule

regarding reservation may not be strictly adhered but sufficient steps should be

taken to empower the category students/advocates to qualify for the post.

This can be done by (1) Assisting different Law colleges to organize remedial

courses for these students. (2) Creating awareness among the advocates to joinsuch job, moreover (3) creating a sound legal education system throughout the

country.

Regarding the anomalies in constitution of courts Cr.P.C is to be suitably

amended to insert Gram Nyayalaya and Nyayadhikari as a cadre of

lower judiciary with defined power.

Regarding the court system the court must adopt the provision of sufficient

and reasonable notice to all parties and must have the power to enforce

attendance of the parties before the mobile court.

Regarding the summary procedure and maintenance of natural justice, strict

guideline for flexibility of recording evidence and use of discretionary power

should be prescribed.

And lastly, about the conciliation, mediation to be conducted by the judges-

more ethical standard moral value should be maintained by the Nyayadhikaries

in their work life, especially, while doing some Para judicial act like conciliation

etc. It would be better, if the judges are not involved in conciliation directly

and do it through the help of gram sabha of that particular locality or conciliators

appointed for the purpose and accept only the conciliators report for giving

order in case of a successful conciliation among the parties.

Analysis of Lok AdalatThe concept of Lok Adalat is an innovative Indian contribution to the world

jurisprudence. The introduction of Lok Adalats added a new chapter to the

justice dispensation system of this country and succeeded in providing a

supplementary forum to the victims for satisfactory settlement of their disputes.

This system is based on Gandhian principles.

The advent of Legal Services Authorities Act, 1987 gave a statutory status to

Lok Adalats, pursuant to the constitutional mandate in Article 39-A of the

Constitution of India, contains various provisions for settlement of disputes

through Lok Adalat. It is an Act to constitute legal services authorities to

provide free and competent legal services to the weaker sections of the societyto ensure that opportunities for securing justice are not denied to any citizen

by reason of economic or other disabilities, and to organize Lok Adalats to

secure that the operation of the legal system promotes justice on a basis of

equal opportunity. Even before the enforcement of the Act, the concept of

Lok Adalat has been getting wide acceptance as People’s Courts as the very

name signifies. Settlement of disputes at the hands of Panchayat Heads or

tribal heads was in vogue since ancient times. When statutory recognition had

been given to Lok Adalat, it was specifically provided that the award passed

by the Lok Adalat formulating the terms of compromise will have the force

of decree of a court which can be executed as a civil court decree. The

evolution of movement called Lok Adalat was a part of the strategy to relieve

heavy burden on the Courts with pending cases and to give relief to the

litigants who were in a queue to get justice. It contains various provisions for

settlement of disputes through Lok Adalat.


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Salient features of Lok adalat:

1) It is based on settlement or compromise reached through systematic

negotiations

2) It is a win – win system where all the parties to the dispute have somethingto gain.

3) It is one among the Alternate Dispute Resolution (ADR) systems. It is an

alternative to “Judicial Justice”

4) It is economical – No court fee is payable. If any court fee is paid, it will

be refunded.

5) The parties to a dispute can interact directly with the presiding officer,

which is not possible in the case of a court proceeding.

6) Lok Adalat is deemed to be civil court for certain purposes.

7) Lok Adalat is having certain powers of a civil court.

8) The award passed by the Lok Adalat is deemed to be a decree of a civil

court.

9) An award passed by the Lok Adalat is final and no appeal is maintainable

from it.

10) An award passed by the Lok Adalat can be executed in a court.

11) The award can be passed by Lok Adalat, only after obtaining the assent

of all the parties to dispute.

12) Code of Civil Procedure and Indian Evidence Act are not applicable to

the proceedings of Lok Adalat.

13) A Permanent Lok Adalat can pass an award on merits, even without the

consent of parties. Such an award is final and binding. From that no

appeal is possible.

14) The appearance of lawyers on behalf of the parties, at the Lok Adalat is

not barred. (Regulation 39 of the KeralaState Legal Services Authority

Regulations, 1998.

Lok Adalats have competence to deal with a number of cases like:

• Compoundable civil, revenue and criminal cases.

• Motor accident compensation claims cases

• Partition Claims

• Damages Cases

• Matrimonial and family disputes

• Mutation of lands case

• Land Pattas cases

• Bonded Labour cases

• Land acquisition disputes

• Bank’s unpaid loan cases


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• Arrears of retirement benefits cases

• Family Court cases

• Cases which are not sub-judice

Benefits of Lok Adalat

The benefits that litigants derive through the Lok Adalats are many.

a) First, there is no court fee and even if the case is already filed in the

regular court, the fee paid will be refunded if the dispute is settled at the

Lok Adalat.

b) Secondly, there is no strict application of the procedural laws and the

Evidence Act while assessing the merits of the claim by the Lok Adalat.

The parties to the disputes though represented by their advocate can

interact with the Lok Adalat judge directly and explain their stand in the

dispute and the reasons therefore, which is not possible in a regular courtof law.

c) Thirdly, disputes can be brought before the Lok Adalat directly instead of

going to a regular court first and then to the Lok Adalat.

d) Fourthly, the decision of the Lok Adalat is binding on the parties to the

dispute and its order is capable of execution through legal process. No

appeal lies against the order of the Lok Adalat whereas in the regular law

courts there is always a scope to appeal to the higher forum on the decision

of the trial court, which causes delay in the settlement of the dispute

finally. The reason being that in a regular court, decision is that of the

court but in Lok Adalat it is mutual settlement and hence no case for appeal will arise. In every respect the scheme of Lok Adalat is a boon to

the litigant public, where they can get their disputes settled fast and free

of cost.

e) Last but not the least, faster and inexpensive remedy with legal status.

The system has received laurels from the parties involved in particular and the

public and the legal functionaries, in general. It also helps in emergence of

jurisprudence of peace in the larger interest of justice and wider sections of

society. Its process is voluntary and works on the principle that both parties to

the disputes are willing to sort out their disputes by amicable solutions. Through

this mechanism, disputes can be settled in a simpler, quicker and cost-effectiveway at all the three stages i.e. pre-litigation, pending-litigation and post-litigation.

Overall effect of the scheme of the Lok Adalat is that the parties to the

disputes sit across the table and sort out their disputes by way of conciliation

in presence of the Lok Adalat Judges, who would be guiding them on technical

legal aspects of the controversies.

The scheme also helps the overburdened Court to alleviate the burden of

arrears of cases and as the award becomes final and binding on both the

parties, no appeal is filed in the Appellate Court and, as such, the burden of

the Appellate Court in hierarchy is also reduced. The scheme is not only

helpful to the parties, but also to the overburdened Courts to achieve theconstitutional goal of speedy disposal of the cases. About 90% of the cases

filed in the developed countries are settled mutually by conciliation, mediation

etc. and, as such, only 10% of the cases are decided by the Courts there. In

our country, which is developing, has unlike the developed countries, number


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of Judges disproportionate to the cases filed and, hence, to alleviate the

accumulation of cases, the Lok Adalat is the need of the day.

Criticism

The right to appeal is one of the most basic features of any sound legalsystem. It sprouts from the principle ‘to err is human’, It recognizes the fact that

it is impossible to be infallible always. Lok Adalats cannot proceed to pass

awards unless the parties to a dispute under its consideration, agrees to the

passing of an award. In such a situation, by agreeing, the parties are estopping

themselves from challenging it afterwards. In that case, denial of an appeal

provision can well be justified. But a Permanent Lok Adalat can proceed to

dispose of a matter referred to it even without the consent of the parties to

such dispute. And the PLA does not have to go by the rules of evidence

contained in The Indian Evidence Act. Moreover, a party can be drawn to

PLA, despite his wishes. In such a situation, denying a chance to appeal may

not be in consonance with our most cherished legal principle: ”Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

NALSA: Structure & Analysis

The National Legal Services Authority (NALSA) has been constituted under

the Legal Services Authorities Act, 1987 to provide free Legal Services to the

weaker sections of the society and to organize Lok Adalats for amicable

settlement of disputes. Actually, Article 39A of the Constitution of India

provides for free legal aid to the poor and weaker sections of the society and

ensures justice for all. Articles 14 and 22(1) of the Constitution also make it

obligatory for the State to ensure equality before law and a legal system which

promotes justice on the basis of equal opportunity to all. In 1987, the LegalServices Authorities Act was enacted by the Parliament which came into force

on 9th November, 1995 to establish a nationwide uniform network for providing

free and competent legal services to the weaker sections of the society on the

basis of equal opportunity.

Advantages of the Movement:

It has helped overcome three impediments:

1) Economic Inequality (Legal Aid) - the poor can not afford good legalcounsels to get them out on bail, nor can they afford the bail amount.

This was sought to be remedied by the provisions of legal aid and an

attorney for all those below a certain specified income bracket. They havea right to be informed about the same, since being illiterate and poor, they

are often unaware of their rights.

2) Organizational Impediments (Diffused Interests) - to facilitate collectiveaction, since the individual was too small to play a significant role/effect

a change. According to Justice Krishna Iyer, another reason for justice ‘onthe streets, rather than the courts’ is that the constitution with its mandate

of socio-economic rights is in contradiction with the colonial Justice andlaw hangover. These are not attuned to the Indian social realities and the

‘mystiques of lacunose legalese and processual pyramids with sophisticated

rules’, along with ‘slow-motion justice and high priced legal services hasled to victimization of the common man.

3) Procedural Obstacles (Informal Justice)- to overcome the current,traditional procedures through alternate dispute resolutions, specialized or small claims courts such as the Family Courts or the Lok Adalats etc.


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During the period from 1st April, 2011 to 30th September, 2011 more than 6.95

lakh persons have benefited through legal aid services in the country. Out of

them, more than 25.1 thousand persons belonged to the Scheduled Castes,

about 11.5 thousand Scheduled Tribes, about 24.6 thousand were women and

1.6 thousand were children. During this period, 53,508 Lok Adalats wereorganised. These Lok Adalats settled more than 13.75 lakh cases. In about

39.9 thousand Motor Vehicle Accident Claim cases, compensation to the tune

of Rs. 420.12 crore has been awarded.

Analysis of the working of NALSA:

The National Legal Services Authority was set up in 1995 under the Legal

Services Authorities Act 1987 to provide ‘’free and competent’’ legal services

to the needy.

According to the views of the Committee headed by EM Sudarsana

Natchiappan the programme lacked proper planning and suffered from paucity

of funds and failure at the level of states to utilise even the grants made. The

actual benefit of this scheme is not gaining access to poor litigants’’ and the

programme is ‘’confined to high profile areas or capital cities only.’’

To be eligible for legal aid, the annual income limit fixed by the central

government for cases before the Supreme Court is Rs 50,000. Fourteen states

have to catch up with even that.

Over the past decade, the Authority claims to have aided 8.25 million individuals,

besides holding 4,86,000 Lok Adalats or conciliation courts nationwide and

settling 18.3 million cases. But critics say that tells little about the sort of cases

in which the Authority helped individuals, the quality of legal aid or the

outcome. Nor does it tell the plight of citizens who are neither eligible for

legal aid nor can afford legal recourse on their own— with no limits enforced

on lawyers’ fees or duration of proceedings.

As in ordinary cases, in aided cases, too, the quality of lawyering is a key issue,

only perhaps more so given the ‘meagre’ fees NALSA advocates supposedly

get.

The Committee noted that counsels engaged for the poor under the legal aid

programme ‘’are paid meagerly’’ and ‘’good and reputed lawyers do not come

forward to take up the cases. Even Senior Advocates do not take up such

cases. As a result poor litigants feel that legal aid being provided to them is

mere eyewash.

The Committee recommended ‘’reasonably’’ enhancing the fee structure— and

standardising it nationwide— so as to draw experienced and competent lawyers

to legal aid.

The Committee said that the government has been providing adequate funds

to NALSA from year to year. However, there has not been total utilisation of

the allocated grants.’’

Some steps taken by NALSA to bring justice at the doorstep:

a) Para-Legal Volunteers

One of the problems faced by legal services institutions is their inability to

reach out to the common people. It is in this context that the National Legal

Services Authority (NALSA) has come up with the idea of para-legal volunteers

to bridge the gap between the common person and legal services institutions.


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The scheme seeks to utilise community-based volunteers selected from villages

and other localities to provide basic legal services to the common people.

Educated persons with commitment to social service and with a record of

good character are selected. The volunteers are trained by district legal services

authorities. The training equips them to identify the law-related needs of themarginalised in their locality. Such needs include assistance to secure legal

rights, benefits and actionable entitlements under different government schemes

that are denied to them. Coming as they do from the same locality, they are

in a better position to identify those who need assistance and bring them to

the nearest legal services institutions to solve their problems within the

framework of law. They can assist disempowered people to get their entitlements

from government offices where ordinary people often face hassles on account

of bureaucratic lethargy and apathy.

b) Legal Aid Clinics in Villages

In order to reach out to the common people, NALSA has come up with aproject to set up legal aid clinics in all villages, subject to financial viability.

Ignorance of what to do when faced with law-related situations is a common

problem for disempowered people. Legal aid clinics work on the lines of

primary health centres, where assistance is given for simple ailments and other

minor medical requirements of village residents. Legal aid clinics assist in

drafting simple notices, filling up forms to avail benefits under governmental

schemes and by giving initial advice on simple problems. A legal aid clinic is

a facility to assist and empower people who face barriers to ‘access to justice.’

Trained para-legal volunteers are available to run legal aid clinics in villages.

The common people in villages will feel more confident to discuss their problems

with a friendly volunteer from their own community rather than with a city-

based legal professional. The volunteers will refer any complicated legal matters

that require professional assistance to the nearest legal services institutions.

When complex legal problems are involved, the services of professional lawyers

will be made available in the legal aid clinics.

c) Free and Competent Legal Services

There has been a widespread grievance that lawyers engaged by legal services

institutions do not perform their du

Polity - I.pdf

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Transcript of Polity - I.pdf