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Notes

Contents

• Aadhar and its Controversy

• CAG

• Citizenship Amendment Act, 2015 - Merger of PIO and OCI

• Collegium System

• Should we shift from Democracy to other forms of Governance?

• Right to live with Dignity and Reputation vs criminal Defamation

• "Minimum Government and Maximum Governance"

• Compulsory Voting

• Parliamentary (cabinet) form of Governance is a Misnomer

• PMO - PM's Office

• Debating Secular & Socialist In Preamble

• Statehood to Delhi

• Importance of Leader of Opposition

• Amendments Proposed in Prevention of Corruption Act

• SC Judgment on Section 197 of Cr.PC

• The Commercial Division and Commercial Appellate Division of High Courts andCommercial Bill, 2015

• Analysis of NITI AAYOG

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CURRENT AFFAIRSPolity-II

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Notes

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NotesAadhar and its Controversy

1. Aadhar project launched in 2009 provides a unique 12-digit identity numberbased on biometrics to every resident of India.

2. Why?

a. To have a single reliable identity instead of multiple identities.

b. To make it the basis of various government schemes to deliver benefits(it is the basis of transferring MGNREGA payments, benefits ofPDS, LPG; it’s the basis of JAM trinity).

c. And this helps to target beneficiaries effectively (avoids inclusion-exclusion errors due to use of biometrics) and reduces the leakages.

3. Criticism to it – petitions have been filed challenging various grounds

a. No legal basis of UID as National Identification Authroity of Indiabill is still pending in Parliament.

b. Violates citizen’s Right to Privacy (although it is debatable).

c. Making it mandatory instead of voluntary is leading to denial ofservices to various people.

d. Security issue – private agencies are involved in collecting personalinformation without government provisions.

4. In this background SC passed an interim order on august 11, 2015 inwhich it said –

a. Aadhar will not be used by authroities for purpose other than PDS& LPG distribution system

b. Government should widely publicize it by media that it want madatoryfor a citizen to obtain Aadhar.

c. Information collected wont be shared with any agency.

5. Government saw it as a setback and countered by saying that

a. Right to privacy is not a FR (as said by SC in 1954, 1962 judgments).

b. Data captured is secure (stored in GOI’s servers with world classstandards).

c. Around 90 crore people have been already enrolled in it (thus doesn’tlead to exclusion of population).

d. SC is too late to act. It should have acted earlier (Government hasspent millions and has enrolled 90 crore people and is using fortransferring MGNREGA payments, pension and basis of JAM Trinity.This will affect governance).

6. Way forward –

a. Shouldn’t be scrapped & restricted because of potential benefits.

b. But government should make sure –

i. Given its legal sanctity.

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Notesii. Ensure that data is not shared without supervision.

CAG

Accountability of CAG –

1. In sept 2015, a conference of chairperson of PACs was held. Its convenordemanded to make CAG more accountable to parliament through aconstitutional amendment

2. Arguments sighted –

a. Parliamentarians belief that the Parliament is supreme.

b. CAG uses public money.

c. While auditing government accounts, CAG also demonstrate that ititself is transparent, effective and efficient.

3. Arguments against –

a. It’s not the Parliament, rather constitution is supreme which hasmade CAG independent.

b. Not a priority; it will not lead to any improvement.

c. Today AG, tomorrow they want ECI to report to Parliament.

d. If Parliament is dominated by executive, then instead of CAG holdingexecutive accountable, executive will hold CAG accountable.

e. CAG is already accountable

i. Article-148: in extreme cases, if CAG doesn’t function accordingto its constitutional role, he/she can be impeached.

ii. Media discusses its report.

iii. Executive can challenge every statement in audit report includingat stage of examination by PAC.

iv. Accountant General nominated by CAG audits its own account.

v. Peer-review – has formed an international forum of SAI’s ofother countries to review its work.

4. Conclusion –

Instead of more accountability, empower it by

a. Bringing new forms of bodies under its purview.

b. Changing the appointment process to ensure its independence.

CAG – the most important office of Constitution of India

1. According to Ambedkar – CAG is the most important office ofConstitution (even more important than judiciary)

2. Its importance can be seen by the fact that its removal procedure isidentical to SC judge.

3. Why is it important?

a. Through its audit, it ensures financial accountability (ensures thatexpenses voted by Parliament are not exceeded)

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Notesb. Often the only authoritative source of functioning of govts/department; conducts performance audit also.

c. Has recently exposed various scams like 2G, CWG (Common WealthGame), fodder scam.

d. Guides PAC in its functioning.

e. Performs accounting functions also (prescribes forms of account forthe center/states).

4. Criticism – Structure

a. Appointed by executive, thus raises doubt over impartiality. Insteadshould be appointed by committee having PM, leader of opposition,the CJI.

b. Posts filled by generalists (IAS), who don’t have expertise in financialadministration.

c. Over-burdened as he doesn’t audit accounts of states (thus createseparate auditor for states).

5. Criticism – functioning

a. Delayed submission of reports (over-burdened, bureaucraticprocedures).

b. Only partial functions (not a controller since cannot do before-hand,only do post-mortem).

c. Many new govt. structures out of its domain – PSUs when govtshare below 50%, PPP, NGOs.

d. Cannot enforce the findings e.g. cannot take disciplinary action againsterring officials, cannot make them pay for losses caused to state bythem.

e. Threat to autonomy – recent instance.

Citizenship Amendment Act, 2015 – Merger ofPIO and OCI

1. Before 2015, two schemes existed for PIO’s – PIO card scheme (since2002) and OCI card scheme (since 2005).

2. Both these schemes conferred work, residence and education benefits toPIOs. They served as India’s solution to offering a status close to that ofdual citizenship (for which their constitution does not allow).

3. But differed in following

OCI cardholder PIO cardholder

Can visit India without visa for Can visit india without visa forlife-long. 15 years from the date of issue

of PIO cards.

Exempt from having to register at Required to undergo registrationthe local (FRRO) regardless of the formalities through the local FRROduration of their stay in India. (Foreigners (Regional) Registration

Office) for their stay exceeding 180days.

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Notes4. Now the PIOs were demanding the merger of PIO card scheme with OCIcard scheme as

a. Firstly, it created confusion and

b. Secondly as we can see above that PIO cardholders were deniedvarious benefits given to OCI cardholders.

5. Subsequently government enacted the Citizenship Amendment act, 2015in March 2015 which amended the Citizenship Act, 1955. Under this –

a. PIO and OCI cards were merged and now only one OCI Card is inexistence. PIO category is now closed to all new applicants and allexisting PIO Card holders will be deemed to be Overseas Citizens ofIndia (OCI) Card holders automatically.

b. The Bill provides certain additional grounds for registering for anOverseas Citizen of India card.  These are:

i. A minor child whose parent(s) are Indian citizens; or

ii. Spouse of foreign origin of an Indian citizen or spouse of foreignorigin of an Overseas Citizen of India cardholder subject tocertain conditions.

c. Earlier, one year continuous stay in India (without break) is mandatoryfor an OCI cardholder to apply for Indian citizenship. But now OCIcardholders are allowed breaks not exceeding 30 days in the one-yearcontinuous stay.

Collegium System

1. Timeline

a. In India, since 1993, a collegium system constiting of CJI and other

senior SC judges has made recommendations for persons to be

appointed as SC and HC judges to the president.

b. But it was criticized for various reasons (see below arguments against

collegium system). Due to this parliament in 2014 enacted NJAC act

and 99th constitution amendment act, 2014 to replace collegium systemwith National Judicial Appointments Commission in which politicians

and civil society had a final say in the appointent of judges to the

highest court.

c. In October 2015, the constitution bench in majority of 4:1 rejectedthe NJAC act and 99th constitution amendment as “unconstitutional

and void”. Thus collegium system as it existed before the NJAC act

was passed, will become operative again.

2. Arguments in favour of collegium system – (as sighted by SC)

a. In India, organic developemnt of civil society has not yet sufficientlyevolved. (it questioned the appointment of 2 eminent persons).

b. It would create a culture of reciprocity of favors between thegovernment and the judiciary. Executive appointing its favorites asjudges in higher judiciary.

c. It is necessary for ensuring independence of Judiciary and separation

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Notesof powers (then only it can perform its duties of safeguarding therights of the citizens).

i. Appointment process would be impacted by politicalconsiderations as union law minister is one of the members ofthe NJAC.

ii. And this is not good as government is a major litigant in caseswith higher courts (allegations against PM/ministers and casesinvolving allocation of natural resources).

3. Arguments against collegium system – (by sole Dissenting judge (justiceJ. Chelameswar) and other constitutional experts).

a. There is no system of accountability in this system. Collegium systemhas not produced the best judges.

b. Constituent assembly (dominated by lawyers) envisaged thatgovernment should have a say in judicial appointments.

c. Judiciary isn’t the only constitutional organ protecting the liberties ofpeople.

d. Primacy of judiciary in appointing judges isnt the only way of securingjudical independence. Also there is no constitutional basis for primacyof judicray in appointmenets. It is a judicial innovation.

e. If independence of judiciary is part of the basic structure ofconstitution, so is the system of checks and balances.

f. Excluding political and civil class violates the democratic principles.In all the major democracies (like US, germany) concept of judgesappointing judges is not there.

g. Executive with its vast adminsitrative machinery under its controlcan make valuable contribution to the selection process.

h. It negates people’s will (the bills were passed unanimously by 2 housesand ratified by 20 states).

4. Conclusion –

a. While there may be concerns about the choice of eminent persons inthe NJAC, striking the whole act was not required.

b. Instead of improving upon the collegium system (which theconstitutional bench argued), it should have suggested steps to removethe flaws in NJAC (if there are any).

Should we shift from Democracy to other formsof Governance?

1. Findings of national survey by the Centre for the Study of DevelopingSocieties, published in august 2015 are:

a. Under 50% respondents preferred democracy.

b. 43% are either indifferent or of no opinion.

c. 11 % — up from 6 % in 2005 — preferred authoritarian governmentto a democratic one.

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Notesd. Even among those having preference to democracy have a tilt towardsauthoritarian regime. Nearly 40 % want India should get rid ofParliament and elections.

2. Reasons for this response

a. Paralysis in parliament (as seen in recent monsoon session).

b. Lack of trust among political parties, police and ration shops whichare percived as corrupt.

c. Red Tapism.

d. Regular demonstrations by people (casteists groups for demandingreservation or be it trade union).

e. In west political/psychological modernization preceded democracy,here it is not the case.

f. India is only a $2trillion dollar economy, has poor economic indicatorsas compared to $ 10 trillion Chinese economic high on HDI index.

3. But shifting to a communist or autocratic model is not desirable

a. Inherent advantages of democracy as compared to other models –

Liberty, freedom of thought, deals with conflict in peacefull manner,

enhanced dignity of citizens, respects for human rights, real

empowerment of masses, accountability to people, strong civil society,

entrepreneur culture. As they say argument a day keeps divorce away.

b. Chinese growth is plateauing, increasing incidence of corruption in

CPC, India is poised to overtake china in growth rate by 2016-7

according to IMF and the world bank; there are lot of ills in chinese

which are hidden due to suppression of media.

c. Earlier, everyone was surprised at erstwhile’s USSR growth, but

gradually everyone saw the ills which even led to its breakup.

d. USA, the present world leader in almost all the aspects is a democracy.

e. All we need is a strong decisive leader, who can maintain the

democratic values.

4. We can summarize it best in the quote by Winston Churchill “Democracyis the worst form of government, except for all those other forms thathave been tried from time to time.” It has its ills, but is better than theothers.

Democracy

1. Meaning

a. Literal meaning – people’s rule.

b. In words of Abraham Lincoln – “Democracy is by the people, forthe people and of the people”.

c. In Indian context.

i. Political democracy – people have universal adult franchise toelect and can run for any post.

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Notesii. Economic democracy.

iii. Social democracy.

2. Types

a. Direct – people exercise their supreme power directly through followingdevices

1. Referendum A proposed legislation is referred to the electorate forsettlement by their direct votes

2. Plebiscite Obtaining the opinion of people on any issue of publicimportance.

3. Recall Voters can remove a representative or an officer beforethe expiry of term, when he fails to discharge his dutiesproperly.

4. Initiative People proposing a bill to the legislature for enactment.

5. Gram Sabha Specific to India

b. Indirect –

i. People exercise their supreme power indirectly through their

representatives elected by them.

ii. Types it is of two kinds

1. Parliamentary democracy (Indian Constitution provides forit), and

2. Presidential democracy.

iii. Representative democracy is the main form everywhere.

3. Features of democracy

a. Concept of citizenship

i. I.E. Member of the state are not subjects rather citizens. Andas citizen they.

ii. Have Certain duties towards the others.

iii. Enjoy certain rights .

1. I.E. various freedoms which promote Individualism.

2. Rule of law so that power elite cant misuse their power

3. Equality before law.

b. Representative Government

i. These citizens will elect political representatives thus an indirectform of government.

ii. Functions of government and political parties is Interestaggregation and achieving value consensus.

iii. It should be tolerant to dissent/protest agitations.

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Notesc. Accountability

i. To ensure rule of law (preventing tyranny of majority) thereshould be “system of checks and balances; separation ofpower”.

ii. There should be civil society and pressure groups to keep thegovernment on its toes.

4. Pre-requisites for success of democracy –

a. Law and order.

b. Value consensus among all sections on some common principles

c. Industrialization and economic development.

d. Education and middle class who are active, can articulate interest.

e. Use all points of features of democracy.

5. Evaluation in India

a. India’s existence has been a puzzle for all political scientists. It isbecause inspite of having (a) poverty and (b) cultural hetrogenity.We are still a united democracy. India’s existence has violated allscientific generalizations. Apart from a brief period of emergencywe have survived successfully.

b. Achievements

i. Largest – 700 million electorate.

ii. Fair and Peacefull elections due to efforts of ECI.

iii. Local governance which has increased the depth of democracy.

iv. All south asian neighbours went through military coups or violentupheavals.

v. All this is largely due to efforts of ECI, independent Judiciary,CAG, civil society, media and Middle class.

c. Challenges –

i. Political challenges –

1. Problems in 3 pillars

a. Today’s democracy is not for the people, by thepeople, and of the people but it is by the officialdom,of the officialdom for the officialdom.

2. FR’s are being curtailed by government and also misusedby people.

ii. Socio-economic challenges – extreme diversity in class, caste,religion.

iii. Internal Security challenges.

d. Conclusion by guha

i. Contradictory trends in Indian democracy – (Best quote on it)

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Notes1. Political side – being corroded (decline of Parliament,Executive and Judiciary).

2. Social side – enriched (rise of civil society, new socialmovements since 70s).

ii. 60 years after independence, India do remains a democracy,but no longer a constitutional democracy, but a populistdemocracy.

iii. Ambedkars comment –

1. Democracy in India is only a top dressing which isessentially undemocratic.

2. Constitutional morality is not a natural sentiment, it hasto be cultivated, our people have yet to learn it.

6. Ambedkar’s 3 warnings which were critical in ensuring the survival ofConstitutional democracy -

a. Instead of debating on streets, debate by constitutional means inlegislature.

b. Stop hero worship : Never lay your liberties at the feet of evenGreat Men.

c. Political democracy cannot last unless there lies at its base socialdemocracy.

Right to live with Dignity and Reputation vscriminal Defamation

1. At present defamation is both a:

a. Civil wrong (under it, person can be sued for monetary compensation)

and.

b. Criminal offence Sections 499 and 500 in the IPC, 1860 (it invites

imprisonment up to two years).

2. Petitions have been filed to decriminalize defamation.

3. Grounds cited by Centre in SC in July 2015 to justify the continuance of

Sections 499 and 500 of IPC.

a. Citizens are unlikely to have enough liquidity to pay damages for

civil defamation;

b. Online defamation in the Internet age can be countered only by

making it a criminal offence,

c. Constitutionally valid as defamation is a “reasonable restriction”

under Article-19 (2).

d. Criminalizes only those speech having no social utility, only aim is

to harm reputation.

e. Need to protect the right to live with dignity of citizens under Article

21.

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Notesf. There are safeguards in Section 499 to prevent misuse.

g. Sections 499 and 500 are not vague.

h. Mere possibility of abuse cannot be a ground to strike down law.

4. Arguments against defamation –

a. Not against civil defamation, only against criminal defamation. Civilsuit will provide them adequate protection.

b. UN Special Report on freedom of expression has told states to abolishit as it:

i. Intimidates citizens,

ii. Dissuades them from exposing wrongdoing,

iii. Is against their democratic opinion.

iv. Has potential to be misused by government to curb criticism by

media and political opponents.

1. Jayalaitha filed against subramaniamswamy, RSS againstRahul Gandhi.

2. In May 2015, Delhi CM Arvind Kejriwal told hisdepartments to file cases against news items which aredefaming him.

c. Grounds by govt are misleading.

d. Groups claiming to be defamed abuse the process by initiating multipleproceedings in different places and thus have to magistrates regularly.

e. CrPC already gives public servants an unfair advantage by allowingthe state’s prosecutors to stand in for them when they claim to havebeen defamed by the media/opposition.

5. Concluding Remark –

a. Even as the court deliberates the matter, govt. should reconsider itsstand and come out against the criminal defamation law.

“Minimum Government and MaximumGovernance”

1. Since coming to power, NDA government has been talking about minimumgovernment and maximum governance on the belief that good governancedoesn’t require large interfering govt, rather a small/appropriate sizedfacilitator govt.

2. Structurally it involves –

a. Downsizing the government.

b. Using technology i.e. e-governance to achieve its task (digital indiahas been launched in pursuance to it).

3. Functionally, govt. has no business to be in business where private sectorcan deleiver best. As PM Modi said in a summit in 2015 that governmentis needed only for 5 things:

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Notesa. Providing Public goods such as defense, police, and judiciary.

b. Designing a welfare system where poor people are provided basicservices like education, healthcare and relevant subsidies.

c. A regulatory system for negative externalities.

d. Checking monopolies.

e. Plug information gaps and ensure that people can make informedchoices.

4. Steps taken by him

a. Reducing the size of COM below 50.

b. Mergers of ministries with similar functions, GOMs were abolished,reducing burecarcy and red tapism and.

c. Bibek Debroy report on railways.

d. In Aug 2015 Lok Sabha passed the Repealing and Amending (Fourth)Bill, 2015 which scrapped 295 obsolete acts which led to InspectorRaj.

5. Challenges: Critical analysis

a. Downsizing –

i. COM has been increased to around 65 especially in thebackground of state elections to please regional leaders andallies.

ii. GOMs are informally back.

iii. Labor reforms are facing hurdle by trade unions who againstincreasing contractualisation of labor.

b. Digital India – in April 2015, TRAI reported that India is belowBhutan in broadband reach: TRAI, there is huge urban-rural divideand for this NOFN (national optical fiber network) needs to beimplemented.

c. If we see functionally then

i. It is even encroaching on states list, why is not empowering thestates and local bodies.

ii. why is his government not privatising loss making PSUs likeAir India, MTNL and BSNL where there is a robust privatesector presence.

iii. Why it is following a catious approach to disnvestment.

iv. Hasn’t give public sector banks any autonomy which are inmess.

d. Increasing cases of tax terrorism.

Compulsory Voting

1. In Nov 2014, the Gujarat Local Authorities Laws (Amendment) Bill,2009 received the Governor’s assent. This act

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Notesa. Makes voting compulsory in the civic body elections.

b. Voters have been given the option of NOTA and online voting (incase they can not come to polling booth).

c. Non-voting will amount to a fine of Rs 100.

2. In Aug 2015, Gujarat HC stayed the implementation of compulsory votingin civic polls to be held in in Oct till further order.

3. Arguments in favor:

a. Would reverse the trend of declining voter turnout in successiveelections.

b. Legislature would reflect, more accurately, the will of the electorate. 

c. People who know they will have to vote will take politics moreseriously.

d. Voting is a public duty in a democratic state which everyone shoulddo.

e. It is done in some countries like Australia, Latin American countrieslike brazil, Argentina.

f. Non-voting contributes to the domination of certain segments of thepopulation by others.

4. Arguments against:

a. Violates Section 79(d) of RPA,1951 (“electoral right” includes theright “to vote or refrain from voting at an election”).

b. Violates Fundamental Rights [(19(1) (a), 21)].

c. Implementing the law could lead to huge no. of cases (in 2009 LokSabha polls, as many as 30 crore voters did not vote.If we fine themwith even Re.1, we will have to file 30 crore cases).

d. Not all voters possess the requisite political knowledge to choosegood candidates/parties. Thus enures quality of voting.

e. Alternatives to increasevoter turnout by NCRWC –

i. Provide incentives like tax incenstives, ration, speed in grantinglicense.

ii. Develop mobile polling stations with EVMs to reach people incommunal sensitive areas or difficult terrain.

f. Votern turnout is increasing due to efforts of ECI and politicalmobilization. In General Election 2014 voter turnout was 66.4 % upfrom 56% in 2009. Infact youth (18-22 yrs) voter turnout at 68% wasmore than national average. Steps by ECI like

i. Appointment of community-based booth liaison officers,

ii. Hand-delivery of voter slips prior to the election day and

iii. Running of awareness campaigns in the media

1. Involving youth icons like sport-stars, actors.

2. Use social media to spread the message.

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Notesiv. Since 2010, ECI is running Systematic Voters’ Education andElectoral Participation (SVEEP) programme to increase voters’turnout. It involves planning innovative interventions, monitoringimplementation, interacting with voting publics, civil societygroups and media.

v. Celebrating National voters day since 2011.

Parliamentary (cabinet) form of Governance isa Misnomer

1. There are 2 schools of thought about the position of PM vis-à-vis his/hercabinet.

2. First school of thought regards PM as just the 1st among the equals.

3. Other school of though says that that PM is not merely 1st among theequals. PM is the head of COM as under Article-75, Council of Ministersare appointed by President on advice of PM, PM can ask a minister toresign, he/she allocates portfolios to ministers and death or resignation ofPM brings the collapse of the cabinet.

4. But the most acceptable view is that it all depends on various factors likehis/her personality, popularity among the masses and whether his/herparty has majority or is head of the coalition government.

5. At present we have clearly moved towards a prime ministerial form ofgovernment.

a. Hero worship

i. It is proclaimed as Modi Sarkar/govt. instead of NDA/BJPgovernemnt.

ii. Has huge popularity among masses;

b. Led the party to clear majority; due to clear majority has full controlover the cabinet.

c. It is said that decisions at present are taken by the Modi-shah-JaitleyTrimuvate. It is said that there is a lack of internal democracy withinthe party; they decide the CM candidate in states.

6. Now it has its benefits like speedy decisions, lack of policy paralysis andway better than the 2 head of govt in previous regime but as Ambedkarwarned us to stop hero worship. It should be ensured that it doesn’tbecome a dicatatorial form of government.

PMO – PM’s Office

1. What is it?

a. It’s a staff agency to provide secretariat assistance to PM.

b. Formed in 1947 under allocation of busines rules, 1961.

c. Headed politically by PM, administratively by princiapal secretary.

2. Status of PMO

a. Its status depends on PM (under Nehru it was small, but underIndira Gandhi it was strong).

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Notesb. But overall it has grown in size and status; it is more in PM’s Modiera.

c. How can we say that –

i. Abolishing GOM/EGOM and all ministries facing problem tobe guided by PMO.

ii. PMO was involved in this year’s budget formulation,

iii. Almost every ministry has been duplicated here.

iv. Has a strong influence in foreign policy.

d. Reasons –

i. Due to enormous role of PM (who has important role in cabinetactivities).

ii. Depends on personality of principal secretary (during tenure ofPC Alexender, Brijesh Mishra, PMOs were dominant).

iii. PMO members generally have an authority to acquire power inthe name of PM.

3. PMO and cabinet secretary –

a. Ideal situation

i. Both have defined roles, thus should perform those withoutinterfering in each other’s domain.

1. PMO – for secretarial assistance to PM.

2. CS – for secretarial assitance to cabinet

ii. And as we have a cabinet form of government, instead ofprime ministerial form of government (i.e. cabinet is the realdecision-making power), so cabinet secertariat should have asuperior role.

b. Reality – PM has overshadowed it and called as super-cabinet

c. Reasons – same as above

Debating Secular & Socialist In Preamble

1. In early 2015 some leaders of shiv sena and BJP mooted the idea ofdebating and deleting the words secular and socialism (added by 42nd

amendment) on the ground that

a. These were not part of the original constitution.

b. These two words were added during the period of the Emergency.

c. And India is a Hindu nation.

2. A subsequent republic day advertisement also showed the original preambleof the constitution which didn’t had the two words. But later the govtclarified that the government has no such intention to do so.

3. Now this event was criticized on various grounds:

a. Firstly 42ndAmendment Act, only made explicit what is implicit.Our constitution since starting has a socialist content (in the form of

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NotesDPSP and FRs like Article - 13, 14, 15, 16) and secular content (inRight to equality (Article – 14, 15, 16) and Right to freedom ofreligion (Article – 25 to 28)).

b. In the S.R. Bommai case, the Supreme Court held that “secularismis an integral part” of the Constitution’s basic structure.

c. Even the Morarji Desai-led Janata Party government did not thinkit necessary to delist these two words when they enacted the 44thAmendment to nullify the objectionable features introduced in the42nd Amendment Act.

d. With or without the amended Preamble, the Indian Constitution willremain secular, but the signal the dropping of the words wouldsend will be disconcerting to the minorities.

e. Wrong focus – government should debate bills and other importantsocio-eco issues.

Socialist

1. The term socialism was added by the 42nd amendment act of 1976. Buteven before that the constitution had a socialist content in the form ofDPSP and FRs like Articel – 13, 14, 15, 16.

2. Indian brand of socialism is democratic socialism and not a communisticsocialism (or state socialism).

a. Communistic socialism – nationalization of all means of production;abolition of private property.

b. Democratic socialism – both public and private sectors co – exist(mixed economy).

3. It implies to social and economic equality.

a. Social Equality – no discrimination on basis of caste, color, creed,sex, religion etc.

b. Economic Equality – government will aim for ending poverty andincome inequality.

Secular

1. The term secular was added by the 42nd amendment act of 1976. Buteven before that the constitution had a secular content in the form offundamental rights Right to equality (Article – 14, 15, 16) and Right tofreedom of religion (Article – 25 to 28).

2. Indian brand of secularism is different from western notion of secularism

a. Western view –Doesn’t support any religion.

b. Indian Socialism –State/govt has no religion , but it equally promotesall religions. Anybody can preach, practice and propagate any religionof his or her choice. i.e. ‘Sarva Dharma Sambhav’.

3. Are we a secular nation ?

a. YES - we have a modern secular constitution and laws based onhumanism instead of religion.

b. NO - pseudo secular due to vote bank politics.

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Notesi. Either appeasing minorities

1. Parties are not concerned with welfare of minorities butonly with their votes and thus appease them.

2. Evidence

a. UCC is not being imposed.

b. Rajiv Gandhi overturned SC verdict in the Shah Banocase in 1985 to appease Muslim sentiments.

c. In June 2014 congress leader A.K. Antony acknowledgedthat Congress’s secularism is biased towards the minoritycommunities.

ii. Or against minorities – Evidence in support

1. State sponsored communal attack. And even if notsponsored then the govt. hasn’t taken action and has failedin rehabilitatiion on and in deliveruing justice.

2. According to Sachhar committee even in recruitment ingovt services they face discrimination.

3. Attempt to modify the books.

4. Ghar wapsi

Statehood to Delhi

1. 69th Constitution Amendment Act of 1991 provided a special status toUT of Delhi.

a. Designated delhi as NCT of delhi.

b. Administrator designated as Lt. governor.

c. Articel -239 A (a) 239 A (b) were added to provide for a LA andCOM for Delhi.

d. LA is empowered to make all laws on all matters of states andconcurrent list except 3 matters.

i. Public order

ii. Police

iii. Land

2. Coming of AAP in Delhi revived the demand.

3. Arguments in favor

a. Has 1.7 crore population (more than population of many states).

b. Two governments governing it leads to conflict, confusion and blame-game (Dengue in Delhi).

c. CM and LA have been elected by people, thus should be given more

power to deal with issue. (According to principle of subsidarity(government to be held accountable by most proximate body andprinciple of democratic decentralization).

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Notesd. Bills passed by Delhi Legislaltive Assembly have to get assent frompresident which makes enactment of laws prone to abuse if dfferentparties are at center and state.

e. DDA is under union ministry of urban development. This Parastatalcan’t be held accountable for affordable housing.

f. Difficult to raise public finances/debt as its budget is part of unionbudget.

g. Lt. governor has misused his discretionary power under Article-239A(A).

4. Arguments against

a. Wasington DC, Canberra are maintained by federal government.

b. Even Mumbai has similar population.

c. Delhi is the seat of governance (houses secretariat, ministers, SC,hosts various foreign missions. Thus central govt has a role.

d. Statehood is just one of the many means of good governance.

5. Way forward – middle path

a. Instead of granting State, some changes should be brought:

i. Central govts influence limited to new delhi (control of NDMC),rest municipal bodies under control of Delhi government.

ii. VIP security should retain with central government., otherfunctions like traffic to be moved to Delhi government.

b. Lt governor should not misuse his power, both should coordinate.

Importance of Leader of Opposition

1. A democracy operates on the basis that there is room for choice all theway up to the selection of the government. This implies that the legislature,which makes the laws for the country, must itself provide an opportunityfor various views to be heard throughout the term. These views shouldencompass not only those on the government benches but also those whoare opposed to the policies underlying the ways of operation.

2. Thus in the Parliament there is a provision for the Leaders of the Oppositionboth in the Rajya Sabha and the Lok Sabha.

3. Leaders of Opposition in Parliament Act, 1972 defines “Leader of theOpposition”, as that member of the Council of States or the House of thePeople, as the case may be, who is, for the time being, the Leader in thatHouse of the party in opposition to the Government having the greatestnumerical strength and recognised as such by the Chairman of the Councilof States or the Speaker of the House of the People, as the case may be.

4. Where there are two or more parties in opposition to the Government, inthe Council of States or in the House of the People having the samenumerical strength, the Chairman of the Council of States or the Speakerof the House of the people, as the case may be, shall, having regard to thestatus of the parties, recognise any one of the leaders of such parties asthe Leader of the Opposition for the purposes of this section and suchrecognition shall be final and conclusive.

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Notes5. The Leader of the Opposition occupies a seat in the front row left to theChair. He/she also enjoys certain privileges on ceremonial occasions likeescorting the Speaker-elect to the rostrum and a seat in the front row atthe time of the Address by the President to members of both the Housesof Parliament.

6. In the last Lok Sabha election in India conducted in May 2014, neitherof the opposition parties could gain a minimum of 10% seats as prescribedby the Rules of Procedure and Conduct of Business in Lok Sabha to getthe recognition of the main opposition party. Resultant, the 16th LokSabha remained without Leader of Opposition.

7. Leader of Opposition helps in making democracy a healthy democracy.Leader of Opposition also serves as a member on panel of various bodiesthat makes appointments to various statutory bodies like CVC, CIC, CBI-ED, NHRC, Lokpal.

8. Hence the government of India has amended the Central VigilanceCommission Act, 2003, clause 4, which provides for the leader of thelargest opposition party to be inducted as a member of the selectioncommittee in a scenario where the lower house of parliament does nothave a recognized leader of the opposition.

Amendments Proposed in Prevention ofCorruption Act

1. In the pre-independence period, the Indian Penal Code (IPC) was the maintool to combat corruption in public life. At that time the need for a speciallaw to deal with corruption was not felt.

2. However the Second World War created shortages which gave opportunityto unscrupulous elements to exploit the situation leading to large scalecorruption in public life. This situation continued even after the war. Thelawmakers concerned about this menace, felt that drastic legislative measuresneed to be taken. Hence the Prevention of Corruption Act, 1947 wasenacted to fight the evils of bribery and corruption.

3. Corruption in the private sector was not under the purview of thePrevention of Corruption Act. If the private sector (or any person engagedby them) was involved in bribing any public authority then he/she is liableto be punished for the offence of abetment of bribery under the Preventionof Corruption Act. A large number of public services, which weretraditionally done by government agencies, are being entrusted to non-government agencies. In such cases, persons engaged by the private agencyreplace the role of erstwhile public servants.

4. Hence the government has amended the Act to bring in private sector inthe corruption Act.

5. The proposed amendments would fill in perceived gaps in the domesticanti-corruption law and also help in meeting the country’s obligations underthe United Nations Convention Against Corruption (UNCAC)moreeffectively.

6. The proposed amendments are mainly aimed at laying down more stringentmeasures to tackle corruption as follows:

a) Providing for more stringent punishment for the offences of bribery,both for the bribe giver and the bribe taker. 

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Notesb) Penal provisions being enhanced from minimum 6 months to 3 years

and from maximum 5 years to 7 years (The seven year imprisonmentbrings corruption to the heinous crime category). 

c) To contain gain of benefits from profits of corruption, the powers ofattachment are proposed to be conferred upon the trial Court (SpecialJudge) instead of the District Court. 

d) Expanding the ambit of provision for containing inducement of publicservant from individuals to commercial entities is being added tocontain supply side of corruption.

e) Providing for issue of guidelines for commercial organizations toprevent persons associated with them from bribing a public servant. 

f) The average trial period of cases under PC Act in the last 4 years hasbeen above 8 years. It is proposed to ensure speedy trial by providinga trial completion within 2 years. 

g) Intentional enriching by public servants will be construed as criminalmisconduct and possession of disproportionate assets as proof ofsuch illicit enrichment. 

h) Non-monetary gratification has been covered within the definition ofthe word gratification. 

i) By way of explanation 2 to section 7(2), the obligation of a publicservant has been explicitly delineated such that the public servantdeters from violating a statutory duty or any set of rules, governmentpolicies, executive instructions and procedures. 

7. It is also proposed to extend the protection of prior sanction for prosecutionto public servants who cease to hold office due to retirement, resignationetc.Further, prior sanction for inquiry and investigation shall be requiredfrom the Lokpal or Lokayukta, as the case may be, for investigation ofoffences relatable to recommendations made or decision taken by a publicservant in discharge of official functions or duties. 

8. Critical aspect – Positives

a. The proposed changes seem to present a coherent and effective legalweapon to tackle the menace of corruption. Borrowing from legalsystems elsewhere, significant new concepts have been introduced tocreate a well-rounded and balanced legal architecture. Penal provisionshave been increased — more stringent punishment is envisaged bothfor the bribe giver and taker.

b. In a significant move, bribe-giving commercial establishments havebeen brought under the ambit of the act. The responsibility forbribing a public servant will go right up to the head of the organisation,not be restricted to the low-level official.

c. The concept of non-monetary gratification has also been brought in.As opposed to the long trial periods seen previously — the LaluPrasad and J. Jayalalithaa cases that stretched into decades, forinstance — a ceiling of two years has been fixed for completing thetrial. A special court system has also been envisaged to bring sharperfocus. These and other features create expectations that thegovernment is serious about addressing the issue. To give greatercomfort to officials who formulate policy — often with inadequate

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Notesinformation and without the benefit of hindsight — the procedurefor prior approval for investigation/ prosecution has been extendedto include retired civil servants. This has been a long-demanded reformto facilitate speedy policymaking, and should help in preventing theharassment of honest officials, who are often roped in just becausethey were in the decision-making loop.

9. Critical aspect – Challenges/Apprehensions

a. The actual wording of the proposed legislation has not yet beenmade public. However, the press note issued by the government issilent on the question of amending or deleting Section 13(1)(d)(iii)of the Prevention of Corruption Act, 1988, on causing wilful loss tothe public. There has been much speculation that this clause mayactually be dropped — indeed the amendment bill of 2013 envisagedits removal on the arguably specious grounds that it leads toharassment and vexatious investigation. Those who have followedthe history of the parliamentary and legal debate on this issue wouldrecall that the 69th standing committee of the Rajya Sabha, in itsreport of February 2014, had strongly argued against its deletion.The recent Law Commission report on the subject has also endorsedthis view. It needs to be verified whether the section is actually upfor deletion. If it has been proposed, it is highly unfortunate. First,civil servants will now, under the new proposed dispensation, getsuitable cover through the provision on prior sanction for theinvestigation process. Besides, there is no other provision to tacklewilful damage to public financial interest, particularly when anyconsideration, bilateral or multilateral, could be difficult to detect orascertain prima facie. For the lay reader, it may suffice to point outthat the deletion of this clause would severely damage the prosecutionin many scam-related cases, especially the 2G cases and “Coalgate”— indeed, the charge against former Prime Minister Manmohan Singhflows from this section. In case this clause has been dropped, it couldnot be inadvertent.

b. No one need be under the illusion that the war against corruption hasbeen fully joined — the cabinet decision is only a proposal forlegislation. Given the fate of so many other well-meaning bills andordinances in Parliament, where the debate is mostly not on meritbut on purely political considerations, it remains to be seen if theamendments are finally passed.

c. However, legislation is only the beginning; implementation, throughinvestigation, prosecution and the trial process, is even more of theessence. One has not, so far, seen an interest or urge on the part ofany state government to press forward with a drive against corruption.As our democracy has evolved, the root of the issue is that politicsis now an unregulated business, largely aimed at the generation ofillegal wealth — do the states have the will to fight corruption? Takeany state and one will find that the polity is heavily dependent on thesand, land, liquor, excise, forest and/ or builder groups, which call theshots. In our far-flung districts and state headquarters, politics is notfor public service — it is a passport to unheard-of riches. This is thecontext in which the new proposed law will have to operate, to cleanup the system.

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Notesd. It is relatively easy for the prime minister to clean up theadministration in Delhi — this process is well under way. But howwill he impact the deeply entrenched political interests in our provincesand mofussils? Which chief minister will willingly shoot himself inhis political foot? That is the real challenge. It is relatively easy totackle transactional corruption at the field level — exemplary andswift deterrent punishment will quickly start bearing fruit. But whowill bell the cat? “Policy corruption” is relatively more difficult toaddress, particularly at the state level. Which chief minister seriouslywants to tackle it and pursue it as a political goal?

e. Addressing administrative corruption is only a small step in thescheme of things. Electoral and political reform, as well as speedingup the judicial process, are equally critical if the war is to be joined.This is a tall order — does our polity have the stomach for it?

3. Meanwhile, let us celebrate the first bugle sounding the charge last weekin Delhi. One has to be an optimist; let this new seed sprout, and let itsimpact reach every part of the country.

SC Judgment on Section 197 of Cr.PC

1. In april 2015, Supreme Court has held that a public servant cannot bydefault claim legal protection of prior sanction against prosecution underSection 197 of the Criminal Procedure Code (Cr.PC).

a. This safeguard is meant to help government servants perform theirduties honestly without fear of malicious prosecution. However, theprovision has largely become a ruse to delay prosecution in corruptioncases.

b. SC said that this protection under Section 197 of CrPC was onlyavailable to a public servant for the honest discharge of his duty.Prosecution for corruption should be exemplary and without delay,the apex court observed.

c. “Public servants have, in fact, been treated as special category underSection 197 of CrPC to protect them from malicious or vexatiousprosecution. Such protection from harassment is given in publicinterest; the same cannot be treated as a shield to protect corruptofficials”.

2. Besides, this protection cannot be claimed immediately after a complaintis lodged. The question of prior sanction would be considered later, duringstages in the criminal trial, as and when the need arises, the apex courtobserved.

3. The court noted that procedural provisions relating to sanction must beconstrued in such a manner as to advance the causes of honesty andjustice and good governance as opposed to escalation of corruption.

The Commercial Division and CommercialAppellate Division of High Courts andCommercial Bill, 2015

1. In its report, the 20th Law Commission sought to set up commercialcourts in India to settle such disputes in a time-bound manner, so that no

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Notesdispute shall be dragged over the years without conclusion of arguments.The concept of commercial court – a dedicated forum aimed at resolvingcomplex commercial disputes between parties – is an idea that has meritin its own right.

2. The need for such mechanism arises:

a) Due to the vast changes in the economic policies of the countrypost-1991;

b) Due to the perception that the Indian judicial system had “collapsed”due to inordinate delays. Pending commercial cases in five high courtsof Delhi, Bombay, Calcutta, Madras and Himachal Pradesh stood at16884, which was 51.7 percent of all civil cases pending in thesecourts.

c) Due to the need to ensure the fast disposal of high value commercialdisputes to provide assurance to domestic and foreign investors.

d) A stable, efficient and certain dispute resolution mechanism is mustfor the growth and development of trade and commerce.

e) To improve the international image of the Indian justice deliverysystem.

3. The Union has introduced a bill namely, “The Commercial Division andCommercial Appellate Division of High Courts and Commercial CourtsBill, 2015" to enable the creation of commercial divisions in high courts,and commercial courts at the district level.

4. The Salient Features of the Proposed Bill are as under:

a) ‘Commercial dispute’ is defined broadly to mean dispute arising outof ordinary transactions of merchants, bankers, financiers and traderssuch as those relating to mercantile documents; joint venture andpartnership agreements; intellectual property rights; insurance andother areas.

b) Commercial Divisions are to be set up in those High Courts whichare already exercising ordinary original civil jurisdiction such as Delhi,Bombay, Calcutta, Madras, and Himachal Pradesh High Court.Commercial Divisions will exercise jurisdiction over all cases andapplications relating to commercial disputes. The CommercialDivision shall have territorial jurisdiction over such area on which ithas original jurisdiction.

c) Commercial Courts which will be equivalent to District Courts areto be set up in (i) The States and UTs where the High Courts do nothave ordinary original civil jurisdiction, and (ii) In the States wherethe High Court has original jurisdiction, in respect of those regionsto which the original jurisdiction of a High Court does not extend.The minimum pecuniary jurisdiction of such Commercial Courtsand commercial division is proposed as Rs. One Crore.

d) “Commercial Appellate Division” shall be set up in all the HighCourts to hear appeal against (i) Orders of Commercial Division ofHigh Court; and (ii) Orders of Commercial Courts. e) CommercialDivisions or Commercial Courts shall not have jurisdiction in mattersrelating to commercial dispute, where the jurisdiction of the civilcourt has been either expressly or impliedly barred under law.

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Notesf) All pending suits and applications relating to commercial disputesinvolving a claim of Rupees One Crore in the High Courts and CivilCourts will be transferred to the relevant Commercial Division orCommercial Court as the case may be.

g) It is proposed to have a streamlined procedure which is to be adopted

for the conduct of cases in the Commercial Division and in theCommercial Court by amending the Code of Civil Procedure, 1908so as to improve the efficiency and reduce delays in disposal ofcommercial cases. The amended CPC as applicable to theCommercial Divisions and Commercial Courts will prevail over the

existing High Court Rules and other provisions of the CPC to thecontrary.

5. The establishment of commercial courts in India is a stepping stone tobring about reform in the civil justice system.

6. Advantages of commercial courts

a) It will seek to bring in uniformity across the country with regard to

Commercial Disputes of a Specified Value as such disputes would bedealt with by the Commercial Divisions of High Courts. This will

help reduce the burden on the District Courts and facilitate thespeedy disposal of cases in India

b) It mandates the plaintiff to file documents like inter alia affidavitscontaining his as well other witnesses’ statements in examination- in-chief, application for discovery and production of documents and all

other material considered necessary by him at the time of filing theplaint itself to quicken the process. Under the normal court procedure,

these documents are usually filed at the time of trial and would addto the delay owing to the several adjournments taken by the partiesto file the same.

c) The provision of allowing a single judge of the Commercial Division

to fix schedules for finalization of issues, cross-examination ofwitnesses, filing of written statements and oral submissions, record

evidence etc. during case management conferences is a radical changeand will help the object of disposing the matter in an efficient mannerwithin 2 years. Also empowering the same court i.e. the CommercialDivisions with power to execute its own decrees and orders wouldfurther hasten the process. 

d) Another positive step is the provision empowering the CommercialDivision to appoint a Commissioner with considerable experience to

conduct the cross examination and re-examination of parties andwitnesses.

7. Establishment of commercial courts in UK and US (especially Londonand New York) are undoubtedly some of the most successful and enduring

instances of judicial administration and have been applauded by thebusiness community. A step in the same direction by India not onlyprojects its determination to fast track justice but also to meet thedemanding world standards. This should fortify the trust of foreign investorsin the Indian Judicial system and further encourage foreign investment. 

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NotesAnalysis of NITI AAYOG

1. India has undergone a paradigm shift over the past six decades - politically,economically, socially, technologically as well as demographically.

2. The role of Government in national development has seen a parallelevolution. Keeping with these changing times, the Government of Indiahas decided to set up NITI Aayog (National Institution for TransformingIndia), in place of the erstwhile Planning Commission, as a means tobetter serve the needs and aspirations of the people of India.

3. The new institution will be a catalyst to the developmental process;nurturing an overall enabling environment, through a holistic approach todevelopment going beyond the limited sphere of the Public Sector andGovernment of India.

4. The NITI Aayog will aim to accomplish the following objectives andopportunities:

a) An administration paradigm in which the Government isan ”enabler” rather than a “provider of first and last resort.”

b) Progress from “food security” to focus on a mix of agriculturalproduction, as well as actual returns that farmers get from theirproduce.

c) Ensure that India is an active player in the debates and deliberations onthe global commons.

d) Ensure that the economically vibrant middle-class remains engaged,and its potential is fully realized.

e) Leverage India’s pool of entrepreneurial, scientific and intellectualhuman capital.

f) Incorporate the significant geo-economic and geo-political strengthof the Non-Resident Indian Community.

g) Use urbanization as an opportunity to create a wholesome and securehabitat through the use of modern technology.

h) Use technology to reduce opacity and potential for misadventures ingovernance.

5. Proposed benefits of NITI Aayog

a) NITI Aayog will seek to provide a critical directional and strategicinput into the development process. The centre-to-state one-wayflow of policy, that was the hallmark of the Planning Commissionera, is now sought to be replaced by a genuine and continuingpartnership of states.

b) NITI Aayog will emerge as a “think-tank” that will provideGovernments at the central and state levels with relevant strategicand technical advice across the spectrum of key elements of policy.

c) The NITI Aayog will also seek to put an end to slow and tardyimplementation of policy, by fostering better Inter Ministrycoordination and better Centre-State coordination. It will help evolvea shared vision of national development priorities, and fostercooperative federalism, recognizing that strong states make a strongnation.

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Notesd) The NITI Aayog will develop mechanisms to formulate credible plansto the village level and aggregate these progressively at higher levelsof government. It will ensure special attention to the sections ofsociety that may be at risk of not benefitting adequately fromeconomic progress.

e) The NITI Aayog will create a knowledge, innovation andentrepreneurial support system through a collaborative communityof national and international experts, practitioners and partners.

f) It will offer a platform for resolution of intersectoral and inter-departmental issues in order to accelerate the implementation of thedevelopment agenda.

g) In addition, the NITI Aayog will monitor and evaluate theimplementation of programmes, and focus on technology upgradationand capacity building.

6. Critical analysis of NITI Aayog

a) Niti Aayog may lead to centralization of economic power. First, thewinding up of the Planning Commission will inevitably mean astrengthening of the Ministry of Finance, which is a far more closelycontrolled departmental body of the Central government than thePlanning Commission of yore ever was.

b) There were typically three channels for the devolution of resourcesfrom the Centre to the states in India: one was through the FinanceCommission which, though a Constitutional body, was alwaysappointed by the central government, with no consultations with thestates, and hence filled with persons willing to do its bidding; thesecond was through the Planning Commission which again was adepartmental body, though admittedly of an unconventional kind, ofthe Central government; and the third was through the Ministry ofFinance which was a conventional departmental body and whichmade financial transfers to states at its own discretion. While theCentre influenced all three channels of transfers, these three channelscan clearly be ordered in terms of their relative independence fromthe dictates of the Central government, the last of these beingobviously the one that is directly governed by such dictates. Thewinding up of the Planning Commission will necessarily meantherefore that the flows which used to come to the states through thePlanning Commission channel will now be effected through theMinistry of Finance; and this will mean greater direct control by theCentre over what flows to which state.

c) The second reason that the winding up of the Planning Commission,will lead to centralization is the simultaneous abolition of an apexbody, the National Development Council. The National DevelopmentCouncil, to which the Planning Commission reported, though not astatutory body, was a forum where state Chief Ministers expressedthemselves, not just on issues affecting their own states but on nationaldevelopment issues. True, the NDC did not vote; but the Centre wasunder some pressure at its meetings to accommodate states’ demands(though no doubt there certain notable instances where it did not).The states used to come to learn of each other’s positions at theNDC meetings and often derived confidence from the fact that other

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Notesstates too were voicing concerns similar to their own. But now,according to the information made available so far at any rate, therewill be no NDC, but only a few Regional Councils where the PrimeMinister will sit with the state chief ministers. This necessarily meansa downgrading of the voice of the states in matters concerning nationaleconomic development.

d) The confidence that the states had in sitting together with the Centre,and the pressure that the Centre was subjected to when the statesspoke with one voice on major issues, will now be replaced by an airof supplication. A bunch of supplicant state governments of particularregions will be pleading for greater largesse from the Centre atoccasional regional meets. For both these reasons, in other words,centralization of economic powers will be carried further forward,compared even to the days of the old Planning Commission.