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VISION IAS

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Approach Answer: General Studies Mains Mock Test 1 691 (2015)
1.

"India lacks an independent nuclear regulatory mechanism with the mandate to ensure high standards
of safety and security at civilian nuclear facilities." In the light of the above statement examine the
prevalent nuclear regulatory mechanism in India. How far can an independent body like Nuclear Safety
Regulatory Authority address this issue?

Approach:
Introduce by briefly outlining the importance and need for an independent regulatory mechanism. Also
list the reason and recommendations for bringing amendment to nuclear mechanism. Bring out the
problems in the present nuclear safety mechanism by giving its criticism. Discuss the alternative to the
existing mechanism in the form of NSRA. Bring out the flaws in current proposal of NSRA. Examine what
changes will be needed in NSRA so that it becomes capable of addressing the problems of Nuclear safety.
Answer :
Lately there has been major need felt for expansion of nuclear facilities in India owing to the rising
energy needs. Although these nuclear projects need to be transparent and open to scrutiny for which
proper nuclear mechanisms must be in place to check whether the nuclear programs are: in sync with
the needs of the masses, are accident secure, and are safe as per the safety standards practiced in
country and worldwide.
The first demand to amend the nuclear regulatory mechanism in India was raised by Raja Ramanna
Committee. The 2014 "Nuclear materials security Index prepared by Washington based Nuclear Threat
Initiative (NTI) has ranked India 23 out of 25 countries with weapons-usable nuclear material.It has been
an issue of recent debates again after the recent Mayapuri radiation accident and Fukushima accident.
Currently Atomic Energy Regulatory Board (AERB) carries the regulatory mechanism regarding the safety
and security measures of civil nuclear facilities. But, AERB is not able to deliver its duties properly.
There are several shortcomings that this mechanism faces:
1. The AERB is set up by government order and not by an act.
2. It is not an independent body and is under Department of Atomic energy.
3. It has to report to Atomic Energy Council rather than Parliament.
4. It can oversee only civil nuclear facilities and not the facilities related to defense and strategy etc.

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Even CAGs performance audit report in 2012 stated The legal status of AERB as an authority
subordinate to central Government. The CAG and Public Account Committee in its report criticized the
AERB and proposed the formation of a Nuclear Safety Regulator Authority (NSRA). The positives of NSRA
are that it will be:
Set up by an act, and will not depend on the whims and fancies of Government order.
The NSRA will report to parliament instead of reporting to Atomic energy commission.
But the recent bill proposed for the formation of NSRA too has several shortcomings:

The NSRA Bill doesnt clearly says that which facilities should be under its authority as the Bill says
that the Central Government on the name of defense and security, exempt any radioactive material,
nuclear material etc and the premises where these materials are found or the areas associated from
the jurisdiction of the authority.

NSRA is excluded from the purview of RTI Act.

An autonomous body to regulate the nuclear program is a drastic need if India wants to expand its
nuclear energy sector which is effective and acceptable to people at large.
1. The selection of its members should be done by a body comprising the leader of Opposition and
speaker of Lok Sabha.
2. The nuclear power should not be immune to scrutiny by civil society.

10

RTI Act has been considered by many as the second most important legal document after the
Constitution. In the light of the above statement describe the importance of Information Commissions
at the center and state levels. Discuss the challenges that they have been facing in fulfilling their
mandate.

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If NSRA as a body for nuclear regulation is provided with appropriate powers and its functioning is kept
autonomous and transparent, it will not only ensure successful regulation of Indias nuclear program, but
it will also enhance the image of India as a nuclear power in front of International community and NSG
and it will also win legitimacy in the eyes of the masses.

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There are 2 parts to the question Importance of Information Commissions at Centre and state and
Challenges being faced in fulfilling the mandate.
Address to the first part of the question, highlighting the mandate, objective, organization of the
Information Commission at centre and state level.
Also, discuss the parameters of transparency, accountability and predictability, which are
implemented by the Information Commissions to work out the RTI Act.
You can also give the current status of pending cases and highlight the need for proper functioning of
the Information Commissions.
Then, address the 2nd part challenges faced. These should necessarily include the one w.r.t. vacancy
of the CIC post.
No need to mention the suggestions separately, with every challenge you can include a short
sentence for solution.
Please avoid mentioning general aspects and problems related to implementation of RTI Act.

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Approach:

Answer:
RTI Act has been one of the significant steps in Indian governance, which has transparency,
accountability and participation as its mandate. The timely response to citizen requests for government
information ensures that this act becomes next in line to the Constitution of India. The mechanism of
complaints redressal through Information Commissions stands important in the following manner.
The Importance of Information Commissions at Centre and State level

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These bodies are high-powered independent bodies which inter-alia look into the complaints made
and decide the appeals, pertaining to offices, financial institutions, PSUs, etc. under the Central/State
Government and the Union Territories.
Right to information has been seen as the key to strengthening transparency, accountability,
predictability and participation
Transparency refers to availability of information to the general public and clarity about functioning
of governmental institutions.
Right to information opens up governments records to public scrutiny, thereby arming citizens with a
vital tool to inform them about what the government does and how effectively, thus making the
government more accountable.
Transparency in government organisations makes them function more objectively thereby enhancing
predictability.
Already, there is a huge backlog with close to 25,000 appeals and complaints pending in the Central
commission alone. Often, people have to wait for more than a year for their appeals and complaints
to be heard.
The effective functioning of adjudicators under the RTI Act, i.e. the information commissions, is
thus critical for the health of the transparency regime in the country.

Challenges faced:

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Promulgation of ordinances by the Central and State government reduces the legislative process to a
private affair. It then becomes imperative that the ordinance-making power be suitably restrained to
create a balance of power between the executive and the legislature. Discuss.

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The CIC post has been lying vacant since August 22 2014 due to the problem in identification of the
Leader of Opposition in Lok Sabha, who forms a member of the Selection Committee alongside the
Prime Minister and a Cabinet Minister, nominated by the Prime Minister.
Section 12 (4) of the RTI Act states that the general superintendence, direction and management of
the affairs of the Commission shall vest in the CIC, thus, the vacancy has the potential to adversely
impact the effective functioning of the Commission.
Lack of regional offices of CIC and SICs in larger states (based on population density and
geographical area) - The Act allows for dispersal of Information Commissions to provide easy access
to citizens. {Section 12(7), 15(7)}. For an overly citizen friendly law to be effectively implemented it is
vital to have easy access in a vast country like ours.
The composition of CIC and SICs indicate the preponderance of persons with civil services
background. Members with civil services background no doubt bring with them wide experience and
an intricate knowledge of government functioning; however to inspire public confidence and in the
light of the provisions of the Act, it is desirable that the Commissions have a large proportion of
members with non-civil services background.

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Approach:

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The Answer should address the rationale, scope and practice of Ordinance making power of the
executive at centre and states
Introduction should briefly explain and contextualize the statement.

Need for suitable restraint on the ordinance making power should be discussed in the light of
instances of misuse and regular re-promulgation. Quote judicial pronouncements in this context as
well.
Conclude with stressing the constitutional rationality of Ordinance making power and the need for
each organ to play its role appropriately.
Avoid being partisan, blame game, underline your arguments based on institutional and procedural
aspects in the light of historical experience and contemporary realities.

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Answer:

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Article 123 says that an ordinance may be promulgated if the President is satisfied that circumstances
exist that render it necessary to take immediate action. Similar provisions apply under article 213 in
the case of the Governor in states. Ordinances have the same force and standing as the Acts of
Parliament. In the case of ordinances, consultation and deliberation involved in parliamentary legislation
is confined to the executive and ultimately rest on the subjective satisfaction of the President or the
Governor.
Promulgation of ordinances has been criticized for:

Obstructing Parliamentary negotiations


Rendering parliamentary opposition to legislation ineffective.
Not following necessity of immediate action test.
Not being representative and deliberative.
Creating imbalance between the executive and legislature involving the entry of the former into the
domain of the latter.

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Putting a time frame on the validity of ordinances.


Making Subjective satisfaction of the President Justiciable.
Restraining re-promulgation.
Doing away with the provisions.

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On average, 10.3 ordinances have been issued per year since 1952. The criticism of provision and
practice of ordinances is acutely felt due to the perceived or actual misuse which has manifested on
many occasions in the form of:
Re-promulgation of ordinances, also termed as the ordinance raj by the supreme court in the D.C.
Wadhwa case
Passage of important measures through Ordinances by-passing the legislature.
The need for suitable restraint on the promulgation of ordinance making powers of the executive has
involved:

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Ordinances are in the nature of emergency powers of the President and the governor e.g. in A.K.
Roy vs Union of India and R.C. Cooper vs Union of India ,
Ordinance-making power was a legislative power given to the President and hence subject to judicial
review under article 13.

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It is not the constitutionality of these provisions but the practice and implementation that is in question.
In this context the judiciary has observed that:

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Constitution provides certain qualifying conditions for the promulgation of ordinances, the key lies in the
judicious implementation of these provisions and containing the use of ordinance to exceptional
circumstances only as was the rationale behind these provisions. A healthy functioning of the legislative
and executive arms of the government under the constitutional provisions is the key in this context.

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Following are some of the recent examples of Ordinances at the level of the Union Executive, which can be used
in the answer:
The Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement (Amendment) Ordinance, 2014
The Insurance Laws (Amendment) Ordinance, 2014
The Coal Mines (Special Provisions) Second Ordinance, 2014
Food Security Ordinance, 2013
The National Tax Tribunal Ordinance in 2003
Electricity Regulatory Commissions Ordinance 1998
Establishment of TRAI in 1997

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4.

Article 326 of the constitution gives the right to vote to every citizen of India. However, the
constituency based electoral system does not adequately facilitate the exercise of these rights for
sections such as internal migrants, service personnel and NRIs. Discuss the issues involved and the
measures proposed to address the issue.

Approach:
The answer should consist of the following parts

Explain the present system of voting in India and the situation of internal migrants, service personnel
and NRIs in India and the difficulties they face in exercising their right to vote

Give various solutions to solve this problem

Answer:
Article 326 of our constitution gives the Right to Vote to every citizen of our country who is not less
than 18 years of age.

The electoral system in our country is such that every person can cast his/her vote from his/her
constituency only and he/she must be physically present at the polling booth. This is a major
hindrance for some sections of our society like the internal migrants, service personnels and NRI
population.

According to a UNSECO report, 1/3rd of Indias population is internal migrants and it is very difficult
for this sizeable population to take leave from work and be present at their respective constituency
for polling. It not only results in loss of pay for them but also loss of valuable man-days.

Similar is the case with NRI voters who are required to be physically present at the polling station
which is expensive and time-consuming.

Service personnel like those in the armed forces, civil services etc have the facility to vote either
though postal ballot or through a proxy voter. However, both these mechanisms have inherent
deficiencies. Proxy voting violates the principle of secrecy in voting and is very cumbersome. Postal
ballot is also cumbersome and expensive as it requires registration of the service member and his
family in the electoral roll and most of the time the issue of postal ballot is late. It would be better to
confer the right to be registered as voters to service voters in the constituency where they are
serving/posted at the relevant time.

For the NRIs, the ECI can either allow them to cast their vote at their respective diplomatic missions
or can implement the system of electronic voting. Electronic voting can facilitate voting for internal
migrants and service voters as well. The honorable Supreme Court of India has recently directed the
Central government to implement to e-postal ballot system for NRIs and service voters. But
government must ensure that the electronic voting is tamper-proof and is cyber secure.

Allowing these groups to vote will help them to gain representation in our democracy and their
issues and grievances will also be redressed which have been hitherto neglected as they couldnt
easily exercise their voting rights. This will then truly usher in democracy in our country.

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The possibility of friction or conflict, as a result of the functioning of multiple regulators overseeing the
different segments of financial sector, does not make a convincing case for a single all-powerful superregulator. Discuss.

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Approach:
While FSLRC has recommended for a single unified financial sector regulator, many analysts including
former RBI governor C Rangarajan have suggested against such a single regulator.
In the Introduction, write briefly about the present scenario of multiple regulators overseeing different
segments of financial sector. Then come to recommendation of single super-regulator. Bring out the
arguments in favour of it. Then write the arguments against such Super-regulator. Conclude with way
forward.

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Answer:
Currently in India, there are multiple regulators overseeing the different segments of financial sectors
such as RBI, SEBI, IRDA, PFRDA, FMC etc.
The Justice B N Srikrishna-headed FSLRC has recommended a system where the RBI regulates the
banking and payments system and a Unified Financial Agency regulates the rest of the financial markets.
Arguments in favour of such a move:

A single regulator can avoid the emergence of possible conflicting regulations that different
regulators frame keeping primarily their jurisdictional area in view.
With increasing roles in diverse areas of financial sector, a financial institution will have to follow
multiple regulations. A single financial institution is being under the supervision of multiple
regulators. A single regulator would encourage diverse activities of financial institutions.
A single regulator can ensure mechanisms for quick resolution of the unanticipated conflicting
regulations.

However many analysts including former RBI governor C Rangarajan have suggested against such a single
all-powerful super regulator. The problem is not as simple as it appears and the single regulator solution
may create new problems:

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A single regulator may not always view the problem from different dimensions and from the
viewpoint of different players in the financial system.
A deregulated financial system provides opportunities as well as incentives for product and process
innovations. For facilitating desirable changes and innovations the regulatory system should be
conducive enough.
A regulatory system should encourage greater efficiency and reduction in transaction costs while at
the same protecting the integrity of the financial system. It is felt that a single monolithic regulatory
organisation may not be nimble and quick enough to respond to the continuous changes that are
taking place.
All big organisations have a natural tendency to develop into unwieldy bureaucracies.
The problems relating to friction and conflicting regulations may continue with undiminished
intensity even under a single regulatory body.
The overall administrative costs of the organisation are likely to increase more than proportionately.
Whenever employees of the super-regulatory body launch an agitation, the whole regulatory
framework of the financial sector may come to a grinding halt.
Financial sector players may also face problems with other authorities as a result of conflicts
between other laws and regulations framed by their regulators.

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A more satisfactory solution to problems faced by conflicting regulations would be to devise an


appropriate mechanism for conflict resolution. It may be productive to have an institutionalized regular
forum of all the regulators in the financial system for exchange of views and review of important
developments and resolving conflicts whenever specific problems/issues are identified.

6.

"Even though India represents a sui-generis case of a compromise between Parliamentary Supremacy
and Judicial Supremacy, Parliament still remains the dominant partner." Critically analyze.

Approach:

The Answer should address the issue of relations between Parliament and Judiciary in India. Develop
arguments providing glimpse of Parliament as the representative of the peoples will and the judiciary
as the chief arbiter of the spirit of constitution.
Introduction: Establish the meaning of compromise between Parliamentary Supremacy and Judicial
Supremacy.

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Main Arguments: Make your position clear on Parliament still remains the dominant partner. Three
possibilities should emerge
o Parliament is dominant
o Judiciary is dominant
o Both are co-equals in and have supremacy in their domains.
Conclusion: highlight the supremacy of the constitution through peoples will and respective roles of
executive, legislature and judiciary in ensuring a healthy constitutional democracy in India.

Answer:
Britain and the USA are often cited as the prime examples of Parliamentary supremacy and Judicial
Supremacy respectively. India, in contrast, is projected as a compromise between these two models. This
is so because while, on the one hand Parliament in India was created by the constitution, unlike the
British Parliament, of which the judiciary is the final arbiter. On the other hand, judiciary in India, unlike
the USA, does not have unfettered power of judicial review.
However, it can be argued that even in this sui-generis model certain provisions make parliament the
dominant partner.
Parliaments power of Legislation, including amendment of the constitution is beyond doubt.
Parliament represents the will of the people and thus is considered supreme institution.
The constitution vests the parliament with the power to determine the structure of Judiciary,
appointment, tenure and remuneration of judicial functionaries as well as their removal in case of
the judges of Supreme court and High Courts.

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Provisions such as articles 13, 32 and 136, 226 and 227 provide a constitutional basis to judiciaries
power to review parliamentary legislations.
Judiciary is the chief custodian of the constitutionally mandated fundamental rights.
Through verdicts such as Kesavananda (1976) and Minerva Mills (1981), the Judiciary has brought in
the tool of basic structure, curtailing the Parliaments overarching powers in terms of the
amendment of the constitution.
Similarly, in the matter of appointments, through its verdict in Three Judges cases, the judiciary
virtually set the rules for itself, thus, establishing de-facto supremacy in this arena.

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Nevertheless, the evolution of constitutional polity in India has witnessed a considerable expansion in
the ambit and scope of judiciary, mainly through being the chief arbiter of the constitution.

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Nonetheless, the passage of NJAC Act underlined the importance of Parliament as the key institution
regulating the conduct of institutions such as judiciary by constitutionally mandated procedure. The
Judiciary, well within its constitutional mandate, can review the functioning of NJAC.

7.

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Hence, it would be prudent to remember that under the constitution the role of executive, legislature
and judiciary is duly defined. The theory and practice of constitutional polity in India envisages
appropriate checks and balances to address any imbalances as and when they arise.

There has been a constant attempt towards making Panchayati Raj Institutions more egalitarian to do
away with the wrongs created by the caste system, gender inequality and economic disparities. In this
context discuss the challenges in effective implementation of inclusive governance through Panchayati
Raj Institutions.

Approach:
Explain the given statement briefly, emphasizing on how PRIs have evolved in the given context. Then
discuss the challenges in its effective implementation. Focus should be on the challenges faced vis-a-vis
caste system, patriarchy and economic disparities. Conclude on a positive note by giving some
suggestions or mentioning few recent initiatives in this regard.

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Answer:
Panchayati Raj Institution (PRI), a Constitutional authority, not only provided representation to the
Scheduled castes, and Scheduled tribes, but also reserved one-third seats for women.
Theoretically Panchayat Raj would mean the power distribution to a decentralized set-up, gazed with
radical change both at the level of delivery of goods and in the social composition.
However, we have institutionalized panchayati raj but not empowered it. Some of the challenges faced
by PRIs are:
Caste based discrimination: Duly elected Dalit representatives are said to be targeted by upper caste
members, by not including them in planning and decision-making process or by passing noconfidence motion against them. PRIs have become a means for perpetuating social stasis.

Despite several states extending 50% reservation to women, gender-based discrimination is evident
from reports that the elected women representatives acted as mere figureheads, while the real
power lied with men, more so in the case of illiterate women.

In many cases when women heads were seen as too assertive or challenging the male-dominated
authority, they were humiliated or even killed.

Panchayati Raj was seen as an instrument to bridge the gap between rural rich and poor, by
prioritising funds, choosing beneficiaries for schemes such as NREGA etc. But the system is plagued
with issues of corruption, mismanagement of funds etc.

There has not been adequate devolution of functions and finance, particularly untied funds. Parallel
systems of financing such as -MPLAD/MLALAD fund can undermine the real governance role of PRIs,
according more powers to the elites of a particular political party and to bureaucratic elites at the
district level.

The public at large and officials are yet to accept panchayats as local governments. Though the State
Government had transferred control over several institutions to local bodies, the officials are not
prepared to accept the suzerainty of the local bodies.

Many of the panchayat members are ill-qualified to understand and implement their duties, and
once elections are over, there is not much guidance available to help them in discharging their
duties.

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What are the issues associated with the recent ordinance passed by the Rajasthan government
stipulating a minimum educational qualification for contesting local elections? Is this a setback to the
constitutional mandate of ensuring gender equality in Panchayati governance?

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It is important to recognise that there are entrenched pathologies of caste discrimination, patriarchy and
identity-based political dynamics at the grassroots level. It is thus very important to have a safeguard
mechanism to ensure transparency and accountability. There can be systematic efforts for participatory
governance assessment such as social audit and peoples report card, to make sure that PRIs are not
captured by the elite or by one political party or group.

Approach:
The approach can be divided into four parts:

A brief introduction to the provisions of the Ordinance.


Governments objective in bringing in the Ordinance.
Criticism of the Ordinance from multidimensional perspective, while giving special reference to the
impact on gender equality.
Conclude the answer suitably on a futuristic note

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Answer:
The Rajasthan government has brought in an ordinance effecting an amendment to the Rajasthan
Panchayati Raj Act 1994. It stipulates minimum educational qualifications for candidates contesting
Panchayat elections.
Provisions
A candidate should :

Have the minimum qualification of secondary education (Class 10 to contest the ZilaParishad or
Panchayat Samiti polls.

Be Class 8 pass from any school (general category) to contest the Sarpanch elections.

Have passed Class 5 from a school to become a Sarpanch in the scheduled region of panchayat.

Governments justification
Sarpanch directly handles crores of money given by Central government. He should be a literate
person with a some know how. Government wants better accountability since Sarpanch is the main
executive agency for Panchayat and Rural Development Works.

Government wants to confront the problem of illiteracy by this move. It has rationalized the
move by citing the two child norm for contesting Panchayat pollswhich has helped in checking
population growth.

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Issues with the Ordinance

Article 14 of the constitution ensures equality before law. The ordinance will place many at a
disadvantaged position and will seclude a large section of the population from the only institution of
direct democracy in the country.

Rajasthan has a low literacy rate. As per the 2011 Census, Rural literacy rate stands at 61% with only
45.8% literate women in rural Rajasthan. Out of 5,273 present members of the panchayat samitis in
the state 3,371 were not Class X pass. Thus 70.49 per cent of the sitting elected representatives
would be ineligible.

The occupation of the marginalized people on elected seats and chairpersons posts in
grassroots democratic governments is a huge social and political revolution. Selective disqualification
would hinder inclusive participation in governance.

This law was passed via an ordinance, which means there was no debate or discussion amongst
elected officials.

The candidates ability should be judged by the electorate. Educational qualifications are not a
yardstick to judge an elected representatives effectiveness or ability to perform his job and serve his
constituents.

This decision is being seen as one more example of a state government dominating institutions of
local governance.

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Impact on Gender Equality


The Ordinance is a setback to the constitutional mandate of ensuring gender equality in Panchayati
governance. It is in violation of the principle of affirmative action guaranteed under the Constitution as
well as the CEDAW Convention to which India is a signatory.
The presence of a large number of women in Panchayats has indeed had a deep impact on gender
equity. For example, achievers like Norti Bai who have a gamut of achievements to boast about will be
left ineligible for the upcoming elections.
Hence the Government should focus on ensuring education for all, rather than playing the politics of
exclusion.

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9.

Budget making in India is the sole prerogative of the Ministry of Finance. However, diverse opinions go
into the process leading up to the presentation of Annual Budget. Provide a succinct illustration of the
role of pressure groups in the budget making process in India.

Approach:
The question pertains to the consultative process leading up to the finalisation and presentation of
annual budget in India. Thus:

Introduce: by identifying the role of Ministry of Finance as the Nodal agency in this context.
Main Arguments: High light the consultative process in budget making. Illustrate the role of pressure
groups representing industry/ business; Agriculture; Non-Profit sector, Womens group etc.
Conclude by highlighting the need of greater transparency and citizens participation it the process.

Answer:
Article 112 of the Constitution of India stipulates that Government should lay before the Parliament an
Annual Financial Statement popularly referred to as Budget. The Ministry of Finance acts as the nodal
government agency in the context of preparation, presentation and implementation of the budgetary
provisions.
The budget making process, however, involves multiple inputs before the final formulation and
presentation of annual budget by the minister in charge.
Over the years pressure groups have emerged as important participants in the pre- budget
consultations.
Pressure groups are the interest groups which work to secure certain interest by influencing the
public policy. As such they represent diverse interests and agendas such as business/industry; Trade
Unions; Agriculture/rural sector, Womens groups etc.

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In India the role of pressure groups is limited to providing inputs and putting forward their
expectations and demands to the ministry through mechanisms such as pre budget consultation of
the finance minister which take place around the months of December-January. The Finance
Minister chairs the meetings along with his deputy and key Ministry officials. The effort is to collect
views and suggestions from various groups that help in finalising the Budget.

For Example Industries/businesses are represented through groups such as the ASSOCHAM, CII and
FICCI putting forward demands of rationalisation of tax structure and improving business
environment.

Similarly, the trade unions and Employees associations such as AIBEA participate in the consultation
to put forward their interests such as demands of Government holding in the Public Sector Banks not
reduced below 51%.

Agriculture sector has been represented by groups such as Consortium of Indian Farmers Association
putting forward demands of adequate pricing mechanism as well as subsidy support.

Similarly, Womens group played have played an important role in putting forward gender specific
concerns and have played an important role in mainstreaming the idea of gender budgeting.

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In sum it can be said that pressure groups in India play an integral role in the pre-budget consultation.
The idea of participatory budgeting which has been gaining ground in recent years demands greater
transparency and capacity building of citizens as participants. The role of pressure groups and CSOs in
this context remains important to make the process sustainable.

10.

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The recent judgment of the Supreme Court on the National Tax Tribunal Act aims to restore the
balance in separation of powers. However, the judgment would go against the idea of Tribunals under
the constitution. Examine.

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Approach:
The question says examine. So look in detail and establish key facts and important issues surrounding
the topic.

Briefly introduce the constitutional provisions for Tribunals and the National Tax Tribunal Act.
Elaborate the judgment of SC and the reasons behind.
Then come to the impact of judgment and the need for Tribunals.
Conclude with suggestions.

Answer:

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Article 323-B of the constitution empowers the state and central legislature to provide for tribunals
to adjudicate disputes pertaining to certain matters, including those relating to tax, rent and foreign
exchange.
The National Tax Tribunal Act, 2005 envisaged setting up a National Tax Tribunal (NTT) to take up taxrelated matters of high courts in order to expedite the decisions on tax disputes. The tribunal was to
hear appeals against orders of the ITAT and CESTAT.
The Supreme Court recently struck down the act, on the grounds that it encroached upon the power
of the judiciary and the principle of separation of powers.
The SC held the law as unconstitutional with respect to the qualification of the chairman and
members, their terms of office, jurisdiction of the tribunal and the eligibility to appear before the
tribunal. Company secretaries could not be appointed as tribunal members.
The court said that the tribunal didn't have the salient characteristics of courts, which it sought to
replace. It ruled that tribunals couldn't decide "questions of law", adding these could only be
decided by constitutional courts.
Some other issues related to the working of Tribunals are:
parliaments power to abrogate or divest the core judicial appellate functions of courts
administrative and financial control of the executive
the tribunals were exempted from review by high court
the executive, especially retired bureaucrats, has predominant positions in all tribunals and judicial
members are not given a sufficient role
However the SCs judgment in the present case will have repercussion on speedier disposal of
appeals before high courts. An estimated Rs 4 lakh crore of tax revenue is locked up in litigation in
various stages from commissioner appeal to courts.
Tribunals in India are setup for administrative convenience. The need for Tribunals can be justified
by:
Setting up of Tribunals helps in reducing the pendency of winding-up cases, shortening the windingup process, and avoiding multiplicity and levels of litigation before courts.
The role of non-judicial members is justified on the basis that the tribunals needed experts in various
fields in view of the technical and complex subjects that came up before these bodies.
In the Minerva Mills case, the Supreme Court said effective alternative institutional mechanisms or
arrangements for judicial review could be made by Parliament. Even in the present NTT case, the
court has not invalidated the Article 323B of the constitution. It said though Parliament could create
tribunals, these should have the trappings of a court.
The tribunal should be a real substitute for a high court. The alternative arrangement has to be
effective and efficient, as well as capable of upholding constitutional limitations. The Tribunals
should be tasked with deciding factual issues. The matters related to question of law should be dealt
exclusively by High courts and Supreme Courts.

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11.

"Lobbying and bribing are often equated to be similar terms in general parlance." Is lobbying the same
as bribing? Should lobbying be legalised in India? Discuss providing examples from other countries.

Approach:
The question has two parts. In part one define lobbying and bribery and clearly bring out differences
between lobbying and bribery. Also mention why in general parlance both are equated.
In second part give arguments whether lobbying should be legalized in India or not. Both pros and cons
of the debate should be provided with final stand on the debate. Points should be substantiated with
examples from other countries.
Answer:
Lobbying is the act of attempting to influence decisions made by officials in the government, most often
legislators or members of regulatory agencies. A lobbyist tries to influence political opinion to his or her
benefit.
On the other hand, a bribe occurs on an individual level. The bribe may be in the form of a donation or
favor in kind. Bribery constitutes a crime and is an act of giving money or gift giving that alters the
behavior of the recipient, where the gift is of a dishonest nature.

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As lobbying and bribery both tries to influence the decisions of officials, in common perception both are
often compared with each other. Governments of few countries like Australia, UK, USA, EU etc often
define and regulate organized group lobbying as part of laws to prevent political corruption and by
establishing transparency about possible influences by public lobby registers.

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Arguments for lobbying in India

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1. There the issue of lobbying has been in news whether it was Enron Dabhol power project in
Maharashtra, Foreign Investment in corporate sector, big defence purchases, Infrastructure
development and now Foreign Direct Investment in multi brand retail. Government should consider
some path to move on. Lobbying would only make the process smooth.

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2. it is a well-known fact that various bodies and some private firms such FICCI, Confederation of Indian
Industry (CII), NASSCOM, Vaishnavi Corporate Communications owned by Niira Radia, etc in India is
involved in lobbying. Making lobbying legal will add to the governments income by levying good
amount of fee and charges on the same.

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3. Many countries like UK, USA, Germany other European countries have made the lobbying legal with
some provisions like quarterly disclosures on amount spent and the manner in which the same has
been spent. So this provides vital information and transparency to lobbying practices.

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4. Lobbying, whether legal or illegal, will continue to remain integral to Indian businesses and politics.
It will be better for our legislators to make the Business Lobbying legal with certain specific
conditions to have transparency so that at least to a extent the national interests are watched.

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5. Making lobbying legal will bring forward open debates and discussions on all the forums. It will
become possible to understand for one and all which option might be better.

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6. At present the lobbying money forms a part of unaccounted money going into the pockets of
politicians, bureaucrats and other influential lot, the cost of which will eventually be recovered from
the common people in the country. Making it legal this would find way to treasury of government.
7. Apart from saving huge amount of money the country may see the rampant corruption in the name
of lobbying fading away.
8. The Indian government itself has a lobby firm presenting its case with the American lawmakers,
while a number of Indian companies and entities also indulge in lobbying activities in the US through
their respective lobbyists.
9. Lobbying in fact brings more competitiveness and improvement in quality as the things are to be
explained and highlighted in comparison to any other stake holder.

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Arguments against lobbying


1. Those who have more power will become greater lobbyist and will watch their interest while the
common one will stand nowhere.
2. National interests will be compromised as the lobbyists watching their own interest and will not at all
be concerned with the countrys interest.
3. Lobbyists will make the corruption legal. The politicians, influential people, will still garner their share
from the lobbyists at the National cost.
4. The law makers of the country are responsible for framing laws that should bring all round
development in the country- if influenced by the lobbyists, may get inclined towards lobbyists
interests.
5.

Lobbying in defence production and purchases might put national security at stake.

6. India is very diverse country. One part has different problem than that of other part. The lobbying
company has no penetration of it.
7. Self-regulation in lieu of legislation is often proposed by Indian industry. In India, nobody knows the
lobbying position of companies, leave alone looking for consistencies in lobbying positions and their
impact on issues on sustainable development. Making it legal will add to the woes of Indian business.

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In comparison with the American constitutional arrangement, where there is strict separation of
executive and legislature, the Indian Constitution provides for a fused structure. Do you think this
system has worked for India?

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Lobbying has now become a well-established service industry although known by different names like
Public Relations, External Affairs Managers, Environment Management Experts, etc. Various established
Associations, Federations, Confederations of Industry and commerce etc. function as lobbyists to get the
policies framed in favour of Corporates. Lobbying industry has been placing its demand for clear and
transparent laws in countries like India where no clarity on the issue is available. So it is high time that
India should decide to make the lobbying either legal or illegal by framing detailed and clear policy.

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The answer should contain the following parts

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Approach:

Explain briefly the arrangement in India vis--vis USA

The reasons for going with this arrangement

Explain what are the benefits of this system

Way forward How to make this system more efficient and effective

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Answer:

The American constitution envisages a strict separation of powers where the executive and the
legislature have no overlap. The President in USA, appoints his own staff/council of ministers and
does not have anything to do with the legislature unlike India and is not responsible to the
legislature like India. But in Indian system, the executive comes from the party, which has the
majority in the Lok Sabha. Therefore meaning that the Council of ministers draws members from the
legislature thereby diluting the strict watertight compartments between the executive and the
legislature.

The reason why our founding fathers did not adopt a strict separation of legislature and executive is
because it could cause unnecessary conflict between the two organs of the government, which our
infant democracy could ill-afford.

This system has served our country well since independence. Firstly, there is no scope for deadlocks
between the executive and the legislature as can be the case with the American system. If the
President belongs to a party, which doesnt holds majority in the Congress than there is a possibility

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of a deadlock if the President and the Congress dont agree on that issue. But in Indian system the
executive comes from the party, which has the majority in Lok Sabha. Hence, for important bills like
money bills there is no scope for deadlock.

13.

Secondly, a majority in the Lok Sabha doesnt give a free hand to the executive. The Rajya Sabha also
functions as another check on the power of the executive. Hence, in our system there is cooperation
between legislature and the executive as well as checks and balances on both the organs.

Going forward, we must strengthen our parliamentary processes. Most bills must be passed through
debates and discussion rather than the ruling party forcing them through the Parliament.

The executive should be held accountable for its actions through various motions, question hour etc.
The spirit of cooperation between the two organs must be recognized and embraced.

The Indian electoral system aims at ensuring equitable representation to the vulnerable sections. In
this context, discuss the issue of womens representation at different levels of governance in India.

Approach:
First start with explaining how Indian electoral system aims at ensuring equitable representation to
vulnerable sections. Then discuss women representation at different tier of government up to PRI level.
Highlight the issue and need for women representation and finally suggest some measures for the same.
Answer:

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Issue of Women's Reservation at different level of governance

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Recognizing the inequality in our social structure, the makers of the Constitution argued that weaker
sections have to be dealt with on a preferential footing by the state. Thus to ensure equitable
representation of various vulnerable groups reservation of seats were provided at all tiers of
government.

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At level of Panchayats and Municipalities

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The 73rd and 74th Amendments passed in 1993, which introduced panchayats and municipalities in the
Constitution, reserve one-third of seats for women in these bodies. In some states the reservation in PRIs
for women even extended to fifty percent. The number of elected women representatives in local
bodies is 42%, exceeding the 33% quota. However, need education and capacity-building, which is
stumbling blocks in path to political empowerment.

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Some recent studies on panchayats have shown the positive effect of reservation on empowerment of
women and on allocation of resources.

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A study by the International Center for Research on Women (ICRW) has found that while women have
the desire to participate, they are handicapped by constraints like lack of literacy skills and support from
family members. The study looked at women's participation in panchayats in Alwar (Rajasthan) and
Mysore (Karnataka). In Alwar 35% women said that they were interested in working for development
while 50% said that their family wanted them to contest indicating a need for familial approval to step in
the political arena.

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About 55% women and 32% men admitted that family members helped in panchayat work, again
pointing towards dependence on family.
Despite this handicap, women representatives appear to be heading in the right direction, they raised
issues like domestic violence, alcoholism and school attendance to a lesser extent in the panchayat.
Representation at level of State and Parliament
The Constitution makes no provision for reserving seats for women in Parliament and the state
legislatures. Currently, women constitute 12% of the Lok Sabha(59), 10% of the Rajya Sabha(23) and 7%
of the state legislative assemblies.
Among State assemblies, West Bengal 34 (out of 294 MLAs), Bihar 34 (out of 243 MLAs) and Andhra
Pradesh 34 (out of 294 MLAs) have the maximum no of women MLAs followed by Uttar Pradesh with 32

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women out of 403 MLAs and Rajasthan with 28 women out of 200 MLAs In terms of percentage, among
state assemblies, the highest percentage of Women MLAs is from Bihar with 14% (34 out of 243 MLAs)
followed by Rajasthan with 14% (28 out of 200 MLAs) women votes and West Bengal with 12% (34 out of
294 MLAs).
Proponents stress the necessity of affirmative action to improve the condition of women.
Need for representation of women in State Assemblies and Parliament
Arguments in Favour

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Empowerment of women.
More political opportunities for women.
There are ample chances of improvement in women's social, economic status.
Women's issues will be given enough importance in the parliament and state assemblies.
Having a women representative for every constituency for at least one term in the 15 years (if
rotation of seats is there in the women reservation bill) is a big step towards reducing the gender
gap.
Though there are chances of misusing reservation, a large number of women, who have genuine
interest to develop their constituency, will be benefited.
Some politicians have fear that this bill may discriminate men. But men have a wide range of
opportunities already. They are socially and economically forward with high literacy rates, when
compared with women.

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Opponents argue that it would perpetuate the unequal status of women since they would not be
perceived to be competing on merit. They also contend that this policy diverts attention from the
larger issues of electoral reform such as criminalisation of politics and inner party democracy.
Reservation of seats in Parliament restricts choice of voters to women candidates. Therefore, some
experts have suggested alternate methods such as reservation in political parties and dual member
constituencies.
Rotation of reserved constituencies in every election may reduce the incentive for an MP to work for
his constituency as he may be ineligible to seek re-election from that constituency.

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Women's reservation is the need of the hour. This will empower women and can act as a level playing
field. The theory of representation proposes that all citizens should have the same opportunity to
participate in political affairs regardless of gender, race and other identities. Therefore the entry of
women into political institutions is an issue of equality. For a healthy political system and welfare of the
people it is important that women must come forward and perform a vital role in political activities
because more opportunities to participate in the political process will enhance their economic and
organizational capacities so that they can gain more self-confidence and make attempts for a better
share in the political system. Thus their participation in the political process is crucial for strengthening
the democratic traditions.

14.

It has often been argued that the MPLAD Scheme is inconsistent with the spirit of the Constitution and
an anti-thesis to decentralization. In this context, examine whether the time has arrived to scrap the
MPLAD Scheme.

Approach:
The answer should contain the following parts

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Explain the MP LAD scheme briefly, its purpose

Explain the cons of this scheme and how it is inconsistent with the spirit of the constitution

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Evaluate the pros and what is the view of Supreme Court on this matter

Way forward reform the scheme and how to implement it effectively

Answer:

Under the MPLAD scheme, started in 1993, each MP has a choice to suggest to the District Collector
for, works which create durable public assets, to the tune of Rs.5 Crores per annum to be taken up in
his/her constituency.
But some think that this scheme is inconsistent with the spirit of the constitution and anti-thesis to
decentralization.

MPs receiving government funds and using them to execute their own projects is encroachment on
the domain of the executive and thus a violation of separation of powers.

Also, many projects under these schemes fall under the purview of 11th and 12th schedule which are
the responsibilities of the Panchayats and Municipalities. Hence, MPLAD is seen as a usurpation of
their powers. Many times such projects distort the local priorities as may be desired by the
Panchayats and Municipalities.

The National Commission for Review of the Working of the Constitution had also recommended that
MPLAD scheme be discontinued.

But many think that MPLAD scheme is in line with the spirit of the constitution.
Though MPs seem to be given an executive function but their role is limited to recommending
works. Actual implementation is done by local bodies. Also they have to adhere to the guidelines
provided by the parliament. Hence, separation of powers is maintained.

Also, many works like drinking water, bus stands, irrigation works etc have been taken under the
scheme which has benefitted the local communities.

The Supreme Court of India has also found MPLAD to be not violative of the constitution.

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It is clear that MPLAD scheme is intra vires of the constitution but it needs to be reformed.
In order to avoid conflict with local level governments, MPLAD can be modified to ensure that funds
be spent though the local bodies. It will also ensure that local bodies are held accountable for public
works and will also solve the problem of lack of funds for local bodies.

The monitoring of this scheme should be further strengthened. This will ensure that MPLAD scheme
becomes a success

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Should the CAG be allowed to comment on issues of extravagance and efficiency, apart from the
legality of a particular expenditure? Analyse. Also examine if the mandate of the CAG audit be
extended to the private bodies involved in public projects.

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The question demands the students to discuss the powers of CAG for propriety audit, which is beyond
the conventional definition of audit. Students should bring out the recent issues with respect to the
propriety audit and what could be the possible way ahead. The question demands the students to give
both arguments for and against such audit and likely implications and benefits of the same. Finally the
students should evaluate the arguments for and against extending the audit of CAG to private bodies in
PPP projects.

Answer:
CAG like any other normal auditor verifies the accuracy of the accounts by auditing the cashbooks and
other documents. He ensures that all the revenues and the receipts collected are brought to account
under the proper head and that expenditure is covered by a grant of proper authority, vouched for and

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properly classified and is met from the allotment of funds provided for in the estimates by the
legislature, recorded under the relevant head of the account.
But the functions of the CAG are not merely to ensure that the appropriations made by the Parliament
conform to rules but also to bring to the parliament the impropriety of any executive action even
when its legality is not in question. He is competent to satisfy himself on behalf of the parliament as to
its wisdom, faithfulness and economy. These powers of the CAG are not a product of any parliamentary
rule , law or a regulation but has grown out of conventions and customs.

But the CAG has recently been accused of overreach, particularly when the audit broadens its
horizons and attempts to examine efficiency or cost effectiveness or propriety in a meticulous
manner.
However given the fact that the policy process and the incurring of public expenditure are
interrelated, it is in tune with the spirit of the constitution to go beyond just the regulatory auditing.
The 2nd Arc has observed that the CAG reports are sometimes unduly negative and their focus is on
irregularities and fault finding. Auditing does not always recognize the practical constraints under
which the government agencies operate.
A very harsh report can be a dampener against new initiatives and risk taking, so natural in vibrant
government agencies. While investigating the CAG no doubt has got to have critical eye but at the
same time the intention of this criticism must be to educate.

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CAG has been demanding the government to bring PPP projects under its purview. In most of such
projects government's equity is less than 49% but if the value of land provided by Government for
the project is added then it can shoot up to as high as 80% in some projects.
Government has little insight into the finances of these projects as they are implemented by private
companies. In many infrastructure projects, private companies increase user charges, but the logic
behind the increase is never shared with the government. The new powers provided to the CAG will
help in unraveling the reasons behind price rise.
Critics of this move hold the opinion/viewpoint that the tendency to force a CAG audit on private
companies in which the government or public sector enterprises have significant shareholding is
dangerous. They feel that this will create a huge burden on CAG and, consequently, on the public
exchequer, resulting in a national waste of resources.
It will also hurt the auditing profession, as it will signal the government's lack of confidence in the
profession and the audit of these companies by private auditors.

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Should the audit of CAG be extended to private bodies under PPP?

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But, the fears of intrusive corporate oversight appear exaggerated. Even though people express concerns
over its manpower and competency, the CAG is conversant with government policies and regulations.
While they may be limited by the availability of staff to carry out audits on companies, they may look to
engage chartered accountants who can work under their direction. The outcome of a CAG audit could
arguably result in lifting the corporate veil, especially if a company has used other entities to circumvent
payment of its contractual dues to the government.
Thus the move to allow CAG to audit private companies holds a lot of merit and should be taken up with
required safeguards in order to bring greater transparency in PPP projects.

16.

The Upper Chamber of Parliaments across the world are generally considered less powerful vis--vis
their Lower Chamber. However, they are also vested with certain functions and powers, which enables
them to play a decisive role. Critically analyse with special emphasis on India.

Approach:

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Power and status of UC how it is inferior in powers in legislative, impeachment processes etc.

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Special power India (article 249 and 312), control over executive etc.
Conclude by saying that upper chamber is an important institution but has been given less power
w.r.t. lower house.

Answer:
Upper Chamber (UC) is one of the two chambers of a bicameral legislature. In a unitary system, UC is
seen as an advisory chamber while in federal systems, it has been granted nearly equal powers with the
lower chamber. Rajya Sabha (RS) of India enjoys co-equal status in all aspects except in certain financial
matters.
Reasons for inferior position of UC are multiple. In fact, there were heated debated in the constitutional
assembly of almost every country for the need of UC. Thomas Jefferson also opposed the idea of two
chambers. It is indirectly elected body, undemocratic and subversive of the will of the people expressed
through the elected Lower Chamber (LC). One argued that if a Second Chamber dissents from the first it
is mischievous; if it agrees, its superfluous. Following are certain powers and status enjoyed by UC
across the world:

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In some countries only limited legislative matters, such as constitutional amendments, require its
approval. In UK, the House of Lords, UC, can no longer prevent the passage of most bills. In countries
where it can veto legislation (like the Netherlands), it may not be able to amend the proposals.
LC is directly elected by the people and thus given power for matters related to finance. RS can delay
a money bill for two weeks only.
In parliamentary system, UC cannot vote a motion of no-confidence against the government. This is
true for India also.
England has an evolutionary political system where power has gradually shifted from crown to the
House of Lords, UC to the House of Commons. Now, UC acts as a revising chamber more or less.

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UC of countries like USA may give advice and consent to some executive decisions (e.g.
appointments of judges, international treaties or ambassadors).
UC may have the sole power to try impeachments against officials of the executive. In USA, it is the
Senate that finally adjudicates and convict on this issue. RS of India has extra power to remove vicepresident of India.
Prior to 2009, UC of UK served as the court of last resort.
Article 249 gives power to RS to pass a resolution to empower parliament to enact law on the state
subject. Similarly RS can pass a resolution to create a new All-India-service (AIS) under article 312
RS can extend the life of a Proclamation issued under article 352, 356, and 360 in the events of the
dissolution of the Lok Sabha.

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However, federal systems have granted some special powers to the UC. USA has one of the strongest UC
in the world. States surrendered their power to the centre and thus, UC enjoys some special powers
which are not with the LC. India also supported strong federation initially. But still, RS enjoys certain
special power. Some of them are as follows:

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Overall, reasons for the UC have always remained a subject of debate. Some call it undemocratic due to
its structure (indirect election of members) while others favour it for its revising and other powers.
Indias RS enjoys equal powers except in money legislations.

17.

It is said that the strength of judiciary, the guardian of the countrys democracy, depends on two pillars
of justice delivery system quality and speed. Of these 2 pillars, the Indian judicial system is weak in
speedily dispensing justice. Identify the reasons for such a backlog and also enlist recent measures
which have been taken to reduce such delay.

Approach:

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The question has 2 parts to be addressed reasons for judicial backlog and recent measures to
address this backlog.
You can directly start the answer with the reasons in a proper organized format. If you feel, just
mention one fact about the current state of judicial backlog in India.

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Thereafter, mention only the recent steps taken to address these issues in a point-manner.
You can innovate the presentation style of this question such as point-format, tree-shape, flowchart
or any other style.
Keep the answer simple and to the point. Arrange the various points in decreasing order of their
contribution to the judicial backlog.

Answer:
The pendency of over 31 million cases in Indian courts is a vivid manifestation of the fact that the Indian
judicial system is weak in dispensing justice in a speedy manner. Such delay has been creating a double
distortion; while the rich and powerful subvert the system and use legal safeguards to delay the judicial
process; a large number of poor under-trials languish in our jails. Therefore, it becomes necessary to
identify the reasons for such a huge backlog.
Reasons for Judicial backlog:

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Understaffing
o Inadequate judge to population ratio 15 per million based on sanctioned strength. The ground
availability is even less.
Inadequate physical infrastructure
o Absence of use of ICT in courtrooms and court complexes.
o Lack of computerization of records.
Operational Issues:
o Improper case management does not take into consideration the expertise and specialization
of judges while assigning the cases resulting in inefficiency, petty cases like traffic challans etc.
can be dealt by outside institutions.
o Provision of Adjournments: These deals are granted only when the courts deem it necessary or
advisable for reason to be recorded. However, these conditions are not strictly followed and the
bad practice continues not only by litigants but also by sitting judges.
o Vacation for Courts
o Complexity and rigidity of procedural laws
o Rotation of Benches
Role of Lawyers- take adjournments on frivolous grounds, do not prepare their cases resulting in
inefficiency, frequent strikes etc.
Lack of judicial accountability gives comfort to judges that ultimately leads to delay in deciding the
matters. No performance metric which focuses on time bound delivery of justice.
Excessive filing of Public Interest Litigation cases resulting in lesser time to hear and decide upon
regular cases.

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Establishment of National Mission for Justice Delivery and Legal Reforms: It has two major goals:
increasing access by reducing delays and arrears in the system. (b) Enhancing accountability at all
levels through structural changes and setting performance standards and facilitating enhancement of
capacities for achieving such performance standards.
Formation of National Court Management Committee 13th Finance Commission allocated Rs. 300
crore for employment of court mangers to assist the judges. The post of court managers is created in
each judicial district to assist principal district and session judge and two posts are created for each
High Court and one for each Bench of High Court. The court managers with MBA degrees will
support the judges to perform their administrative duties, thereby enabling the judges to devote
more time to their judicial function.
Recently, in Nov 2014, Chief Justice of India had addressed a letter to all Chief Justices and Acting
Chief Justices of the High Courts, urging them to fill up vacancies in the High Courts.
E-court Project for ICT enablement of courts.
National Litigation Policy
Gram Nyayalayas and Family Courts: more numbers to be set up.

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Recent measure taken to reduce delay:

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18.

Should the Section 8 of the Representation of the People Act, 1951 be amended to disqualify
candidates accused of an offence punishable by imprisonment of 5 years or more even when trial is
pending, given that the Court has framed charges against the person? Discuss in the light of the SC
judgment on the issue.

Approach:
Students can begin by giving a very brief introduction of section 8 of RoPA and how it allows
disqualification of candidates upon conviction. Thereafter the answer should focus on the shortcomings
of the existing law and the proposed solution to amend the specific section of the law. Students should
also bring out the arguments in support of such an amendment and safeguards which should be
introduced along with it.
Answer:

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The Representation of Peoples Act of 1951 lays down certain rules for disqualification of MPs and
MLAs if they are convicted:
But disqualification upon conviction has proved to be incapable of curbing the growing
criminalisation of politics, owing to long delays in trials and rare convictions. A number of expert
bodies/commissions feel that the law needs to evolve to pose an effective deterrence and prevent
subversion of the process of justice.
Few people suggest that one of the solution to overcome this problem is to disqualify the candidates
from contesting the elections on a case being registered against them in case of a serious crime. But
many experts believe that the filing of the police report under Section 173 of CrPC is not an
appropriate stage to introduce electoral disqualifications due to lack of sufficient application of
judicial mind at this stage. Any such move may result in a large number of frivolous cases being filed
just to get the candidature of a few candidates cancelled.
In this light many of the expert bodies have suggested that candidates should be disqualified from
contesting elections even when the charges in that particular case have been framed as this would
be a mid-way between the two extremes.
Even the Supreme Court in one of its judgment has made it clear that the framing of charges under
Section 228 of the CrPC requires an application of judicial mind to determine whether there are
sufficient grounds for proceeding against the accused.
Further, the burden of proof at this stage is on the prosecution who must establish a prima facie case
where the evidence on record raises grave suspicion. Together, these tests offer protection against
false charges being imposed. Also, only offences which have a maximum punishment of five years or
above ought to be included within the remit of the provision.
Additionally, charges filed up to one year before the date of scrutiny of nominations papers for an
election should not lead to disqualification. This would help respond to the fears that political rivalry
may lead to complaints which can create hurdles for a candidate during polls.
Since the stage of framing of charges is based on substantial level of judicial scrutiny, a totally
frivolous charge will not stand this scrutiny. Therefore, given the concern of criminalisation of politics
in India, disqualification at the stage of charging is justified having substantial attendant legal
safeguards to prevent misuse.

19.

There are three justifications for regulatory interventions: prevention of market failure, checking anticompetitive practices and promoting public interest. In context of the above statement, critically
examine the functioning of regulatory bodies in India.

Approach:
Firstly, while giving an Introduction, highlight the context of the statement, i.e. why we need
independent regulatory authorities. Then explain how they help in in preventing market failure, checking

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anti-competitive prices and promoting public interest. Further, bring out the criticism of the functioning
of bodies citing some recent examples. Conclude with giving suggestions for strengthening of regulatory
mechanism in India.
You can also incorporate recent examples in addition to the comments given above: such as the SEBI
Amendment, Saradha scam, Sahara Case, the NSEL Scam, TRAI etc.
Answer :
In India, with the initiation of the process of economic liberalization in the early 90s, government
withdrew from many activities, which hitherto were monopolized by it. With the roll back of the state
and the entry of the corporate sector, it necessitated the setting up of independent regulators not only to
prevent market failure and check anti-competitive prices but also to boost the investor competence
along with safeguarding and promoting the public interest.
Thereby, a number of regulatory bodies were setup in various sectors examples being SEBI (Securities
and Exchange Board of India), TRAI (Telecom Regulatory Authority of India), IRDA (Insurance Regulatory
and Development Authority) and Electricity Regulatory Commissions.
The functioning of regulatory bodies in India has been a mixed bag. The creation of independent
Regulators in respect of certain sectors/industries like SEBI has helped in checking market failure in
secondary sector and promoting a culture of transparency leading to the development of a vibrant
financial market in India. Further, by having stringent norms and compliance it helped in promoting the
interest of the customers.

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Similarly the functioning of Competition commission of India has ensured a level playing field among
private players while ensuring public interest. Its decision to impose fines to cement companies and real
estate developer ensured the development of a healthy environment for economic development of the
nation and fostering of competition.

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But, at the same time, there is also an increasing perception that a number of regulators are being set up
on an ad-hoc basis by different Ministries, sometimes with overlapping jurisdictions leading to lack of
coordination and issues of turf. The NSEL case is a classic example of regulatory overlap among FMC,
IRDA and SEBI. The fact that different regulators have been set up with varying terms of appointment,
tenure etc. is also a reflection of this.

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Functional independence is often curbed by the dependence of regulators on concerned line


ministries for budgetary allocations and sanctioning of staff appointments as well as the need for
former to report on the latter.
Further, many of the regulatory bodies are not statutory backed, leaving ambiguity in its functioning.
The process of appointment and removal is based mainly on governmental patronage with civil
servants being appointed to the offices, which leaves enough scope for governmental interference in
the functioning.
The regulators actions are questioned only where there is an impending crisis or a serious debate in
the country. In fact, in most such cases it is the line ministry that is questioned, and not the regulator.
Such misperception enables the line ministry to interfere in the functioning of the regulatory body.
Legal accountability allows review of a regulators specific decisions. It is important to ensure that
the review process does not create a second layer of regulation, as experienced in telecom sector.

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Further, the functioning of Regulatory bodies faces the following problems:

Nevertheless, the government needs to have a proactive approach by statutorily recognizing the
regulator with an independent source of funding and impartial appointment process for realizing its aim
of preventing market failure, checking anti-competitive process and promoting public interest.

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20.

"The power of the Union Government to enter into international treaties cannot be absolute or
unchartered in view of the federal structure of legislative and executive powers." In context of the
above statement examine the need for greater involvement of states in the foreign policy making
process.

Approach:
Giving a background of the foreign policy making process, argue why states needs to be given a greater
role in framing the foreign policy. Try to give examples from recent spate of incidents and change in
politics, which emphasises on increased role of the states not only in political front but also in economic
front (LPG era). Conclude by suggesting some measures for the same.
Answer:
Foreign policy, traditionally has been seen as a function of the central government and not the states.
This was considered necessary to maintain wholesomeness of foreign policy as also the sovereignty of
the country in foreign affairs. While Article 51 deals with the States endeavour to promote international
peace and security, Article 253 gives unfettered powers to the Union government to legislate on any
matters for implementing any treaty or agreement.

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Though the treaties are signed by the Central Government, there are allegations that the Union tends to
act unilaterally compromising the interests of the states. Examples being that of Indus Water treaty
where it is being argued that interest of the state of J&K were compromised by giving waters of western
rivers to Pakistan or of giving Katchatheevu Island to Srilanka, compromising the interests of Tamil Nadu
fisherman.

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Arguments in favour of states

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A closer look at Indias map shows that barring Delhi, Madhya Pradesh, Chhattisgarh, Jharkhand,
Haryana, all Indian states have borders with a foreign country or they have international waters.
Therefore it is important to appreciate that Indian states have a natural stake in the foreign policy of the
country.

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In the era of globalisation the interests of states are affected by the treaties the Government of India
signs. This is particularly true of the FTAs, CEPAs, climate change and a host of others issues. The
negotiations at the Doha round of WTO have been blocked for more than a decade because of the
interests of the farmers. Similarly, the government has taken a position at the Climate Change
negotiations to protect the livelihood of the poorest sections of the society. Such issues cut across states.

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States are also key players in the implementation of the economic reforms policy. The acute debate on
the FDI in multibrand retail sector where the government was forced to give options to the states
whether or not they wanted to implement the policy further reflect the important role played by states
in shaping foreign policy of the nations.

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Though previously parliament had a limited role in the day today task of making the foreign policy, there
used to be a healthy practice of debating the issues in the parliament. This gave the government a good
idea of the national sentiment, but in the recent years, the situation has changed drastically.

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A Comparison with US bring forwards the important role played by the senate committee in ratifying
international agreement's signed by the presidential executive providing the states an equal voice in the
policy formulation process. Such a process allows for acting as a collective body echoing the interest of
the states in international policy formulation process
The members of the ruling coalition often have large influence on the foreign policy. The government
was forced to stake its survival by seeking a vote of confidence on IndoUS civil nuclear deal. More
recently, it had to agree to a debate followed by vote on FDI in retail which is unprecedented and brings
forward the role of regional parties in the coalition, which tends to prioritize the states interest.
Thereby, the government has to devise ways to accommodate the interests of the states. Though, it is
being done on an ad hoc and sporadic manner, it is not enough. Most of such interactions are sporadic &

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need based. There ought to be a systematic interaction between the centre and the states to determine
what the interests of the states are.
Further, there are several constitutional mechanisms which could be activated. Some foreign policy
decisions can be taken in inter state council and national development council where states are
represented at chief minister level.

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However, in democracy all policy is essentially politics. A governments policies are the result of political
compromises. Foreign policy is no exception. As seen w.r.t some recent events, the influence of the states
on foreign policy is increasing, particularly since the advent of coalition polity. Thus, the central
government has the difficult task of determining what the national interest is, and whether it reflects the
interests of the states.

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