Question 3 · 591 words written
Status of DP, Gov - can he? Various limits on Prof Gov.
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Death penalty or capital punishment is constitutionally permissible punishment, part of our criminal justice system and does not violate Article 21 of the constitution since it is according to the procedure established by law. Governor's pardoning powers under Article 161 of the constitution extend to of offences under the state list (schedule VII)
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in the rarest of rare case only
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- Arguments against
- no legible result on deterrence
- Post capital punishment to Nirbhaya rapists: no decrease in rape cases
- Against ICCPR and UDHR which India has ratified
Governor's pardoning powers under Article 161 of the constitution extend to
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- remission
- pardon
- reprieve
- commutation
- respite
of offences under the state list (schedule VII)
Limitations of governor's pardoning power
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- doesn't extend to punishment prescribed under court martial
- cannot pardon capital punishment
- only President can under Ar. 72
(2) Judicial review of Governor's pardoning power when
→ arbitrary exercise of power → malafide → relevant factors not considered → based on wholly irrelevant & extraneous considerations
Held in Epuru Sudhakar vs UOI & Kehar Singh.
(3) Exercised on advice of council of ministers and not personal discretion.
Way forward follow guidelines in Shatrughan Chauhan vs UOI for death penalty.
52nd Constitutional Amendment of 1985 added 10th Schedule and amended Article 102 of Constitution and is known as the Anti-Defection law to prevent horse-trading, defections commonly known as 'Aaya Ram-gaya Ram' politics.
INTENT OF 10th SCHEDULE → To prevent defections - a member of parliament/legislature shall be disqualified from the membership of the house
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- if he votes against the directions of his political party
- an independent member joins a party after elections
- a nominated member joins a party after 6 months of nomination
While the intent was to provide stability to politics, divergence between the intent and impact can be seen as below:-
(1) INDIVIDUAL PARLIAMENTARIAN'S AUTONOMY LOST →
Cant vote on own discretion, has to follow the whip of political party. MPs/MLA's represent the people, but have no say of their own, have to follow party's whip even if they dont agree.
(2) PROMOTES WHOLESALE DEFECTIONS → Xth schedule allows defection if 2/3rd of the legislative party merges with another party. This facilitates wholesale defection. eg., Recently, > 2/3rd of Shiv Sena's MLAs merged with BJP to form government - Maharashtra.
(3) NO PROVISIONS FOR BREAK-OFF → Xth schedule deals only with merger & not when a faction merely break-off from original party.
(4) UNFETTERED DISCRETION OF SPEAKER → no time limit prescribed for the speaker to decide on disqualification of defected member.
Way forward → (1) Strengthen internal party democracy → to ensure that parliamentarians can vote on their own accord. (2) Amend Xth schedule → time limit prescribe for speaker's decision & ECI deciding authority up Xth schedule → fill loopholes
Conclusion → Anti-defection laws are required in developing democracies like India, Pak, B'desh etc. where politicians defect for petty gains. Developed democracies like UK, USA don't have such laws - because great inter-party democracy.
Bureaucracy is a foundational cornerstone of parliamentary democracy, composed of the permanent executive who offer continuity of policies and implementation thereof.
Transformative role of bureaucracy → Constitution makers continued with the British legacy of bureaucracy in independent India, with Articles 309, 310, 311 providing for their recruitment and constitutional safeguards.
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- Central Node: Role of civil servant
- Arrow 1: citizen centric administration
- Arrow 2: last mile delivery of government Policies
- Arrow 3: Good governance
- Arrow 4: Domain expertise + Technical/managerial knowledge allows better decision-making + implementation
- Arrow 5: Policy advice to politicians (fair, neutral advice) (2nd ARC)
- Arrow 6: Continuity of government policy
- Arrow 7: long term effects of policies gauged by them
However, they have stuck to traditional outlook:-
(1) RED-TAPISM and BUREAUCRATIC ATTITUDE
(2) PROCESS BASED RATHER than OUTCOME ORIENTED 2nd ARC in its 10th report highlights how focus is more on procedural compliance and rule following rather than achieving outcomes.
(3) POLITICAL INTERFERENCE → influence of ministers and interference in decisions
(4) NO INCENTIVE FOR BETTEMENT → constitutional safeguards under Article 311 - IAS couple in Delhi case.
(5) CORRUPTION, ELITISM eg., Pooja Singhal IAS was charged with corruption recently.
WAY FORWARD 2nd ARC in 10th report on Refurbishing personnel in administration, draws from 1st ARC and HOTA COMMITTEE reports to suggest → mid-career trainings of civil servants → PERFORMANCE MANAGEMENT SYSTEM to streamline goals of the organisation with outcomes of its units. → Performance appraisals of Bureaucrats → DOMAIN EXPERTISE from an early stage for specialisation and expertise in a field. → CIVIL SERVICE LAW and CODE OF ETHICS to
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set standard.