IASbaba's Flagship Course: Integrated Learning Programme (ILP) - 2024 Read Details
TOPIC: General Studies 2
- Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.
- Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Introduction
We are effectively on the verge to begin 25th year since constitutional decentralization of power to include a third tier of governance. But the ground level change has been dismal and devolution still remains farfetched.
73rd and 74th Amendment:
The 73 rd Amendment (together with the 74th) is rightly called ‘a silent revolution’ for various reasons.
Issue:
The oldest existing statute is the Bengal Districts Act of 1836. It is a statute with a single sentence and says the following, “Power to create new zilas: It shall be lawful for the State Government, by notification in the Official Gazette, to create new zilas in any part of West Bengal”. This is the text as it stands today, not as it was in 1836.
There have been amendments in 1874, 1903, 1920, 1948 and 1950. The parallel legislation still exists in Bangladesh. Two questions follow.
Conclusion:
Decentralization should be implemented in letter and spirit especially for a country of size and stature of India. It is important for India to revise and reform the subjects and also encourage the states towards higher devolution via incentivisation..
Connecting the dots:
TOPIC: General Studies 2
- Separation of powers between various organs , dispute redressal mechanisms and institution
- Structure, organization and functioning of Executive and Judiciary.
Overview:
The below article deals with the recent judgments of the Supreme Court invoking Article 142 of the Constitution to achieve results of a far-reaching nature, outside the laws governing the issues.
Article 142 provides that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it…”
Article 142 has been invoked for the purpose of doing tremendous good to large sections of the population and indeed to the nation as a whole. The Supreme Court has perceived its role as one which would require it to ‘wipe away every tear from every eye’, but perhaps it is time that the use of this vast, unlimited power included checks and balances.
Separation of Power versus Judicial Activism
According to the doctrine of separation of powers the Legislature, Executive and judiciary have to function within their own spheres demarcated under the Constitution and no organ can assume a function assigned to another. The framers of the Constitution have reposed ultimate trust in each organ to perform its functions as per the duties and powers conferred upon it by the Constitution.
The need for judicial activism, or creative interpretation of laws by the judiciary arises when laws are not framed for purposes or situations which demand the immediate attention of the government or if such laws are framed, they are insufficient to meet the situation.
However, in recent years there has been several judgments of the Supreme Court, wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution. These judgments have created an uncertainty about the discretion vested in the court to invoke Article 142 where even fundamental rights of individuals are being ignored.
Constructive application of Article 142
Below are some of the cases where Supreme Court is lauded for its constructive application of Article 142 in an effort to bring complete justice to various deprived sections of society or to protect the environment.
Stories of miraculous changes brought about to the lives of ordinary people — especially those who, on account of poverty, illiteracy, and ignorance were unable to seek remedies from the courts — were innumerable.
In this judgment, the Supreme Court, while awarding compensation of $470 million to the victims, went to the extent of saying that to do complete justice, it could even override the laws made by Parliament by holding that, “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.” By this statement the Supreme Court of India placed itself above the laws made by Parliament or the legislatures of the States.
However later in Supreme Court Bar Association vs. Union of India. It mentioned that the said article could not be used to supplant the existing law, but only to supplement the law.
Foraying into forbidden territory
However, in recent years, one has come across several judgments of the Supreme Court wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution.
Unfortunately, these judgments have created an uncertainty about the discretion vested in the court to invoke Article 142 where even fundamental rights of individuals are being ignored.
It is argued by the critics that in some of its judgements (given below), the court, in its anxiety to do justice in a particular case or matter, has failed to account for the far-reaching effects of its judgments, which may result in the deprivation of the rights of a multitude of individuals who are not before the court at that time.
As a result of the order, thousands of hotels, restaurants, bars and liquor stores were forced to close down or discontinue the sale of liquor, resulting in lakhs of employees being thrown out of employment. It may be noted that the total percentage of accidental deaths caused due to drunken driving, as found by the court from the statistics of 2015, was only 4.2% as against the 44.2% caused by over-speeding.
The Supreme Court had itself held that the right to employment is a basic right traceable to Article 21. However, in its order banning the sale of alcohol along highways, it made no reference to the loss of employment to lakhs of people, a direct consequence of the order.
Critics argue that the judgment did not merely supplement the law but supplanted it by reason of the binding nature of the three-judges bench decision, which was res judicata between the parties. The trial was in fact nearing completion at Rae Bareli; it would now take at least two years for the examination of a few hundred witnesses at Lucknow before conclusion of the trial, as the charge of conspiracy has also to be gone into.
Way ahead
In Indian Constitution the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the function of another. The doctrine of Separation of Powers has been included in our basic structure doctrine as has been ruled and upheld by the Supreme Court in a number of cases. Thus it holds a position of utmost importance.
Judicial activism may be a welcome measure on in a short run where it helps in maintaining the rule of law and allows one organ to sustain the administration of the country when other organs are not performing. If it is practiced for a long time it may dilute the theory of separation of power and the doctrine of checks and balances.
Over the recent past, however, increasing powers are traced to Article 142 to decide a host of issues that would fall within the domain of other institutions. The exercise of such powers with no one to turn to against such exercise except the very body that had exercised the powers in the first place is certainly not democratic and borders on authoritarianism or at the very least, rule of the intelligentsia.
Article 142 is an extraordinary power to be sparingly used where there is a legislative or executive void and comes into play when the conclusion is founded on statute or law but a remedy has to be created. Surely, its purpose is not replacing the wisdom of other institutions with that of the judiciary.
There is time to institute checks and balances for the Supreme Court to introspect on whether the use of Article 142 as an independent source of power or should be regulated by strict guidelines, so that arbitrariness takes place judicial activism, will remain within the purview of doctrine of separation of powers and checks and balances.
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