Model Answers for G.S.

Main Test-2
1.

Why should there be simultaneous elections held to the Lok Sabha and Legislative
Assemblies of the States? Is it practically possible to be implemented?

Ans:
Upto the 4th general elections held in 1967, elections to the Lok Sabha and the State
Assemblies were held simultaneously in the month of February once every five years.
Thereafter, this synchronisation of elections was disturbed due to pre-mature dissolution of
Assemblies and Lok Sabha. As a result of this, since 1985 the Election Commission, instead
of holding one general election once every five years to Lok Sabha and Assemblies, has to
hold at least five general elections to State Assemblies and Lok Sabha every year.
Impact of frequent elections
(1) The country, especially the Central government gets virtually into a constant election
mode. Ministers and Legislators are frequently drawn into election work, disturbing their
official work. The government is not able to take unpopular decisions (like raising oil
prices) that maybe necessary in the national interest, affecting the efficiency of
administration, and the government is rendered weak.
(2) It leads to increased circulation of black money and use of muscle power during elections
affecting probity in public life.
(3) It also disturbs the fair and free nature of elections.
(4) It increases the election expenditure of the government.
The Election Commission suggested that the States can be divided into two groups based on
their time of election as compared to that of Lok Sabha. The elections to one group of States,
whose election schedule is closest to Lok Sabha elections and the elections to other group of
States may be held after 21/2 years. Though this will not synchronise all the State elections
with that of Lok Sabha, this will at least reduce the burden on the nation.
However, by following Article 243E(4), which states that a panchayat elected after its premature dissolution shall be in office only for the remainder of the period of dissolved
panchayat, we can constitutionally mandate that general elections to Lok Sabha and State
Assemblies shall be held regularly once every five years, and the newly elected House after
premature dissolution shall remain in office only for the remainder of the dissolved House.

2.

What do you understand by tribunalisation of justice? Give your views highlighting its
advantages and disadvantages.

Ans:
A tribunal is a quasi-judicial body established by an Act of Parliament or State Legislature
under Article 323A or 323B to resolve disputes that are brought before it. It is not a court of
law, but enjoys some of the powers of a civil court, viz., issuing summons and allowing
witnesses to give evidence. Its decisions are legally binding on the parties, subject to appeal.

Tribunalisation of justice means over reliance on tribunals to resolve disputes that may follow
the letter but not the spirit of rendering justice to the people. Tribunalisation of justice is
criticised for the following reasons:
(1) Under the Doctrine of Separation of Powers, the Judiciary is given the role of rule
adjudication and functions independent of the executive and legislature. Since a tribunal
is not a court of law it does not form part of judiciary. It is controlled and manned partly by
the Executive. Thus it goes against the principle of separation of powers and allows the
Executive to perform limited rule adjudication functions.
(2) Since the decisions of some of the tribunals, like National Green Tribunal (NGT) can be
taken on appeal only before the Supreme Court, tribunalisation of justice may adversely
affect the role of the High Courts as Courts of Appeal and deprive them of their power of
judicial review. The superiority of the Constitutional Courts (HCs) over the statutory courts
(tribunal) is compromised.
(3) The Constitution protects the independence of the judiciary in terms of qualifications,
mode of appointment, tenure and mode of removal, which is not available to members of
tribunals. They come under the control of the Executive. The Executive is the largest
litigant in the country and creates a conflict of interest wherever the government is a party
to disputes before the tribunals.
(4) Due to direct appeal clause, the tribunals increase the pendency of cases before the
Supreme Court.
Though the tribunals provide speedy justice and can handle technical issues like service, tax
and environmental cases better, the benefits of establishing tribunals can be extended to the
nation, if the Parliament makes use of Article 247 that provides for establishing additional
courts for better administration of justice. Further the tribunals shall deliver justice and
function under the appellate jurisdiction of the High Courts.
The Supreme Court in July 2016 referred the issue to the Law Commission of India to
examine whether tribunalisation of justice is obstructing effective working of the Apex Court.

3.

Routine appeals filed before the Supreme Court may result in the obstruction of the
constitutional role assigned to the Supreme Court. Analyse the above statement in the
light of the recent developments that have taken place in India.

Ans:
As per the latest data, the total number of pending cases in the Supreme Court (SC) as on 1
April 2014 is 64,330. Shortage of judges, inadequate infrastructure and resource constraints
are perennial problems of the judiciary. The recent addition to these problems has been the
piling up of cases in SC against orders by various tribunals. Therefore, it asked the Law
Commission to examine whether tribunalisation was obstructing effective working of the apex
court.
Analysis of the Courts observation

A 2015 study conducted by a group of lawyers found that only 7.23% of judgments
delivered in 2014 were on constitutional questions. Another study found that one of the
main reasons for the rising pendency in the Apex Court is that it is the first Court of
Appeal for the orders of various tribunals.

So, the Supreme Court has raised a genuine concern. There are two separate reasons
why the Supreme Court is bogged down by routine litigation: the first is the tendency
among litigants to seek special leave to appeal against any order of the High Courts and
tribunals; the second is the provision for statutory appeals against orders of various
tribunals. For instance, the Electricity Act, 2003, and the Telecom Regulatory Authority of
India (Amendment) Act, 2000, provide for direct appeals to the Supreme Court against
orders of appellate tribunals.

However, other than the above two reasons, this is a self-inflicted injury. Today, the
Supreme Court has strayed from its original character as a Constitutional Court and
gradually converted itself into a mere court of appeal which has sought to correct every
error it finds in the decisions of the 24 High Courts and numerous tribunals.

Way forward

To check the pendency of cases from the appeal against tribunals, the creation of four
regional Courts of Appeal as final appellate courts has become imperative. Although 18th
Law Commission has advocated the setting up of four regional benches of the Supreme
Court, the establishment of four regional Courts of Appeal may be a more effective
means to ensure that the poorest litigant from the farthest corner of India has inexpensive
and ready access to justice, while restricting the Supreme Court to its true function as a
Constitutional Court.

Further, the Constitution could be amended by adding Article 136A, whereby the regional
Courts of Appeal would exercise the powers which were hitherto being exercised by the
Supreme Court under Article 136 (Special Leave Petition) of the Constitution.

Thus, the Supreme Court should be left with only those cases which would fall within the
jurisdiction vested in it by the framers of the Constitution and covering essentially the
following matters:
1. All matters involving substantial questions of law relating to the interpretation of the
Constitution of India or matters of national or public importance;
2. Settling differences of opinion on issues of law between High Courts or between
Courts of Appeal;
3. Resolving Centre-States and Inter-States dispute; and
4. Presidential References under Article 143 of the Constitution.

Conclusion
The rationale behind constituting tribunals as substitute to civil courts and High Courts ought
to be revisited. The Supreme Court should not lose its original character and become a
general Court of Appeal by entertaining and deciding cases which do not involve important
constitutional issues or issues of law of national importance.

4.

What do you understand by Office of Profit? Why is there an incessant debate around
this issue? What can be the way forward?

Ans:
Office of Profit is any position, other than political, to be filled by election or nomination for
which (s)he draws a profit from government. The expression office of profit has three
elements viz.,
(1) there should be an office;
(2) it should be under the government; and
(3) its holder derives profit.
The root cause of controversies is under Articles 102 and 191 of the Constitution of India,
whereby holding an office of profit is a ground of disqualification for legislators. Parliament
has also been given the power to exempt offices from disqualification, by law.
This provision is designed to protect the democratic fabric of the country from being
corrupted by executive patronage and also secures the independence of MPs so that they
discharge their functions without fear or favour. It will eliminate or reduce the risk of conflict
between duty and self-interest among MPs.
The controversies around Office of Profit have a few elements:
i)

No clear definition of profit. In Shibu Soren vs. Dayanand Sahay, 2011, SC has clarified
that irrespective of nomenclature if some pecuniary gain is there, it is profit. However,
payments like daily allowance and travel compensation are compensatory and not
pecuniary.

ii) Tendency to randomly exempt offices. There does not appear to be a clear rationale to
the list under Parliament (Prevention of Disqualification) Act, except the expediency to
protect holders of certain offices from time to time.
iii) Appointment of Parliamentary Secretaries. Likewise, several other offices, bodies,
corporations, committees exist which are given to be held by members of the ruling party,
usually to contend them as they could not be made Ministers due to the 15% cap.
Generally, these offices are exempt, or are made exempt.
Way Forward:
i)

The Parliamentary Joint Committee on Offices of Profit shall provide guidelines that may
be then legally sanctioned, for exempting an office of profit as a ground of disqualification
for legislators.

ii) Like UK, every time an office is created, the law should lay down if it is an Office of Profit.
Further Information:
Further, if the role is only advisory, the body may not be considered an office of profit. The
SC has also summarised the tests to be applied to determine if an "office" is an office of profit
under the Government, i.e. if the Government:
(1)
(2)
(3)
(4)

makes the appointment;

has the right to remove/dismiss the holder;
pays the remuneration;
exercises any control over the performance of the functions of the holder.

5.

Why the decisions taken by the presiding officers of the legislatures under Anti-Defection
Law are generally contested before the courts of law? In this regard what suggestions do
you make to reform Anti-Defection law? Do you think the concept of party whip goes
against the idea of democracy?

Ans:
In an environment when money power can bring an elected government down, AntiDefection law is a necessary legislation for promoting healthy democracy in India. However,
it is seen that the decisions taken by the presiding officers of the legislatures are contested
before the courts. Recent incidents in Arunachal Pradesh and Uttarakhand are cases in
point.
The main reason is the doubtful objectivity, neutrality and impartiality of the presiding officers.
It has been alleged that presiding officers have acted with bias. Moreover, presiding officers
themselves, at times, have highlighted their inability to act as a tribunal and discharge the
quasi-judicial function under the law. For example, the term anti-party activity is highly
subjective and it attracts disqualification under the law. Such interpretations are, perhaps,
best left for a judicial mind to make.
The underlying principle of the party whip is that MPs are elected on a party ticket and voters
have exercised their preference for a set of policies of the party. Thus, the MPs should be
bound by the decision of the party.
However, this assumes that the MP is voted solely on the popularity of the party, akin to a
List System of election. The fundamental principle of First-Past-The-Post-System is
accountability of MPs towards the electorate. Anti-Defection law breaks that link as the MPs
do not have to justify their individual votes on issues that may be important to their voters.
Moreover, Anti-Defection law removes the need for the government to build broad consensus
for its decisions. It only needs to convince leaders of other political parties. Hence, the role of
MP and hence democracy is diminished.
There is, hence, a need to reform the Anti-Defection law so as to realise its true objective and
minimise misuse. Following reforms may be considered:
a) As recommended by the Election Commission, the National Commission for Review of
the Constitution and Goswami Committee, decisions under Anti-Defection law shall be
taken by the President/Governor on the advice of Election Commission, similar to other
grounds of disqualification under Articles 102 and 191 of the Constitution of India.
b) The law be amended appropriately to reflect the Supreme Courts clarification (Hollohan
vs Zachilhu, 1992) of limiting the laws applicability to only those votes of MPs where
stability of the government is under threat and on major policy issues. For all other
issues, the party whip shall not invoke disqualification under the Anti-Defection law.

6.

The time has come to decriminalise defamation and withdraw the sedition law from
Indias legal lexicon as they severely hamper the citizens right to enjoy their freedom of
speech and expression. Critically analyse the above statement.

Ans:
Sections 499 and 500 of the IPC provide a remedy of criminal defamation, while Section124A deals with the sedition law. The controversial defamation law has been used frequently

the recent being the cases of Subramaniam Swamy, Rahul Gandhi, Arvind Kejriwal etc. The
dozens of defamation cases filed in Tamil Nadu to silence journalists from calling out malgovernance in the wake of Chennai floods shows that powerful politicians are using this as a
weapon against each other.
Arguments Supporting Defamation and Sedition Law

Sections 499 and 500 are constitutionally saved and they are to be read as reasonable
restrictions on an individuals right to free speech. The law is part of the states
compelling interest to protect the dignity and reputation of citizens. Also reputation of
one cannot be allowed to be crucified at the altar of the others right of free speech.
(Subramaniam Swamy vs UoI 2016)

The proponents deny the argument that criminal defamation had a chilling effect on free
speech. It maintained that a person would be charged for criminal defamation only if his
speech had neither social utility nor added to the value of public discourse and debate.

Similarly, Section 124-A is shown as a reasonable restriction on individuals freedom of

speech in favour of public order.

Mere misuse or abuse of law, actual or potential, can never be a reason to render a
provision unconstitutional. Penalising the statutory provision, rather than rectifying the
systemic problems in our courts, is to throw the baby out with the bathwater.

Arguments Against Defamation and Sedition Law

Criminal defamation (Section 499 and 500 of IPC) stifles freedom of speech and
expression under Article 19(1)(a) of the Constitution, even if the speech made was
truthful and meant to foster public debate of matters in the public domain. It is only when
the truth is spoken for public good that exception may be made. Thus, it will lead to a
chilling effect on speech.

Critics have questioned the reasonableness of the restraint imposed on an expression

based on truth. The state has no compelling interest in restricting free speech under
Article 19(1)(a) between or among private persons. Free speech restrictions under Article
19(2) must necessarily originate from compelling state interest, not private interest, it is
argued.

Misuse of Sedition Law: Despite the Supreme Court verdict in the Kedarnath Singh vs
State of Bihar 1962 and the recent Shreya Singhal vs UoI 2014, the sedition law is being
misused by government in power. In both the cases, the SC maintained that- speech,
howsoever annoying, offensive, or inconvenient cant be prosecuted unless its utterance
has a proximate connection with any incitement to disrupt public order. If used arbitrarily,
the sedition law would violate freedom of speech and expression under Article19.

The offence of sedition ranges from imprisonment for life to rigorous imprisonment for
upto three years if the court determines that the seriousness of the offence is mitigated by
circumstances. This gives excessive judicial discretion to a court in the matter of
sentencing.

These penal sections (499, 500, and 124-A) had been misused by those in power to
settle political scores. They are used as a means to coerce the media and political
opponents into adopting self-censorship and unwarranted self-restraint.

It goes against the global trend of decriminalising crimes and institution of civil remedies.
The United Kingdom, from whom India borrowed these pernicious provisions of the
defamation law and sedition as well, had abolished criminal libel five years ago.

Conclusion:
However, civil defamation alone cannot place sufficient deterrence on a defamer who in this
age of internet and social media may destroy the reputation of an individual that had been
painstakingly built by him over his lifetime. The right to reputation of an individual is
recognised under Article 21. We need to find a balance between free speech and right to
reputation by retaining criminal defamation. Similarly, to prevent the misuse of Section 124-A
of IPC by the State, the principle laid down by the Supreme Court in the Kedar Nath case
shall be incorporated under Section 124-A itself.

7.

Does the special power of the Lok Sabha on money matters make the Rajya Sabha the
secondary chamber? Discuss the above statement in the light of the recent
developments.

Ans:
The Constitution confers virtually the exclusive power on the Lok Sabha for the passage of a
Money Bill. The Rajya Sabha can only delay the passage of a Money Bill for a period of not
more than 14 days after a Money Bill is received by it, but it cannot reject or amend a Money
Bill by virtue of its legislative power. Further the decision of the Speaker whether a Bill is a
Money Bill or not is final and binding.
However, the objective behind conferring this special power on the Lok Sabha is not to
render Rajya Sabha as the inferior of the two chambers. The government needs money
sanctioned by the Parliament for the smooth administration of the country and also to fulfil
the promises it has made to the people by way of implementing various welfare programmes.
Since the mandate the government has got from the people is reflected in the Lok Sabha, to
ensure that the Rajya Sabha does not delay or block the passage of Money Bills due to
political differences, the Lok Sabha has been given special powers on Money Bills.
However, the Lok Sabha has great responsibility to ensure that this special power is used
appropriately as per the objectives of the Constitution and not to be misused due to political
differences with the opposition parties in the Rajya Sabha.
Recently a controversy had arisen when the government introduced and got passed the
Aadhaar Bill 2016 as a Money Bill in the Parliament. Since the Aadhaar Bill, it was argued,
also contained non-money matters it could at best be classified as a Financial Bill. By getting
it passed as a Money Bill, it was argued that the government has deprived the Rajya Sabha
of its constitutionally sanctioned legislative power. To prevent such controversies from arising
in the future, the Office of the Speaker must be made more autonomous.

8.

Extending legal status to referendum in India would enhance the empowerment of

citizens. Discuss the above statement in the light of the debate on the desirability of its
introduction.

Ans.
Referendum is one of the direct democratic devices by which the government may refer any
issue of public importance, including a Constitutional Amendment for final approval, to the
people by popular vote. If more than 50% of the valid votes polled are in favour of the issue
referred in a referendum, then the outcome of the referendum is considered to be binding on
the government and it should take measures to implement the same. Neither the Constitution
nor any other law provides for holding a referendum in India.
A referendum politically empowers the citizens and allows them to participate directly in the
decision making process of the government on certain aspects of administration. It not only
gives legal but also moral strength to the government in taking a particular decision on
difficult questions that may otherwise vex the government.
However, a referendum has its own limitations in terms of deciding on issues that are
complex in nature. The citizens are required in a referendum, to indicate their choices, in the
form of yes or no. But most issues are not so simple to be decided. Further on a hotly
contested issue under a referendum, if it is passed by the shortest of the majority it may lead
to a sharp and vertical division among the citizens and further complicate the issue. With
great diversity among its population based on religion, caste, regions, languages etc,
referendum, if introduced in India, may lead to a sharp polarisation of its population along
caste and religious lines posing a threat to unity and territorial integrity of India. Issues can
also be highly politicised in a referendum. The citizens may not also place national interest
ahead of their personal interests, while voting in a referendum. The Brexit is an example in
this regard, where the outcome of the referendum has even led to a change in the
government. India, probably, is not ready for experimenting with such an idea.

9.

Transgender rights have been discussed in India over decades, and yet it seems
elusive. In light of the recent attempts by the Government, examine the issue.

Ans:
The rule of law is supreme and everyone is equal in the eyes of law in India. Yet, the
transgender community is in a constant battle as they have to fight oppression, abuse and
discrimination from every part of the society, whether its their own family and friends or
society at large. The life of transgender people is a daily battle as there is no acceptance
anywhere and they are ostracized from the society and also ridiculed. They live on the
fringes of society, often in poverty. Most make a living by singing and dancing or by begging
and prostitution.
According to SC, recognition of transgenders as a third gender is not a social or medical
issue but a human rights issue. The single most important issue is that of the socio-political
identity of transgenders in India. That is also the crux of the recently moved Transgender
Persons (Protection of Rights) Bill, 2016 in Parliament. For the first time, a proposed
legislation acknowledges the fact that the gender assigned at birth may not necessarily
match the persons own sense of the gender they belong to. The Bill allows a transgender

person to identify himself/ herself as man, woman or transgender, while doing away with
the nomenclature Other that is currently in use.
Some key aspects of the Bill are:
a) Prohibition against discrimination in education, employment, movement, access to
government/private establishment etc.
b) Right to residence
c) Certificate of identity (as transgender) to be provided by the District Magistrate
d) Government to take steps to provide health facilities to transgender persons including
separate HIV surveillance centres, sex reassignment surgeries, etc. and review of
medical curriculum
e) Imprisonment for certain offences violating rights of transgenders
f)

Establishing National Council for Transgender Persons to advise Government on

formulation and monitoring of policies, legislation and projects.

However, there are several shortcomings in the Bill. These are mostly the omitted parts from
the Private Members Bill passed in Rajya Sabha on the same issue:
a) No provision for special transgender rights courts
b) No reservation for transgender persons in employment (as OBC), as was also called for
by the SC earlier.
c) No clarity on who to approach in case of harassment
d) The maximum punishment, even in cases of sexual assault, is prescribed as 2 years.
Notwithstanding these and other shortcomings, a start has been finally made in this longpending issue of fairly treating transgender community as citizens of India, ensuring all
opportunities and due human rights for their growth.
Further Information:
The term transgender refers to all those who differ in behaviour and appearance from the
usual gender stereotypes. It includes transsexuals, transvestites (cross-dressers), intersexed
individuals and gender queers. In the Indian context, it also includes social identities such as
hijras, kinnars, aravanis, jogtas, Shiv-shaktis and aradhis.
SC has clarified that the term transgenders does not cover gay, lesbian and bisexual
persons.
Tamil Nadu has achieved a milestone in ensuring transgender rights by constituting the
Aravanis Welfare Board in 2008, providing pensions for the community and creating
awareness in schools on gender-variant people by inviting community members and
counsellors to talk to students.
(Refer SC orders on PIL by NALSA in 2014.)

10. Why the Mental Health Act 1987 needs to be replaced? What improvements Mental
Health Care Bill 2016 passed recently by the Rajya Sabha seeks to introduce?
Ans:
India is signatory to the UN Convention on the Rights of Persons with Disabilities, ratified in
2007. It required India to change her laws to give effect to the rights of persons with mental
illness. There was also a need to provide better treatment and improve their access to health
services. Therefore, The Mental Health Care Bill, 2013 has been recently passed by Rajya
Sabha to replace the Mental Health Act, 1987.
The key reforms the new legislation aims to bring are:
a) Right of persons with mental illness to
(1) access mental health care (affordable, quality and easy access). These will include
outpatient and inpatient services, hospitals, and community-based rehabilitation
establishments.
(2) free legal service
(3) equality of treatment
(4) make advance directive stating how (s)he wants to be treated during a mental health
situation, and who the nominee representative would be
b) Decriminalising suicide and prohibiting ECT (except with muscle relaxants and
anaesthesia). Any person who attempts to commit suicide will be presumed to be
mentally ill and will not be penalized under IPC.
c) Insurance to be provided by every insurance company for mentally ill persons on the
same basis as is available for physical illness
d) Central/State Mental Health Authority to manage mental health facilities and issues
e) Registration of mental health establishments which fulfil the prescribed criteria
While the Bill does seek to bring significant reforms, there are unresolved issues like
management of property of mentally ill persons. Moreover, while decriminalizing suicide
maybe a welcome step, forcing every person attempting suicide to undergo mental treatment
may not be the best solution.
Furthermore, health being a State subject and the states being financially constrained, there
are bound to be issues in successful implementation of the legislation, once enacted. Central
Government would have to step in to ensure funds to the States so as to establish a mental
health system integrated into all levels of general health care in India.

11. Union Territories, though centrally administered, enjoy an independent identity. What
kind of independence do they enjoy? How would you compare it with that of the States?
Ans:
Like several other federal countries, India too has centrally administered regions, named
Union Territories (UTs). While States, in a federal nation, have a completely separate,
independent and autonomous identity from the Union (Federal) Government, UTs do not

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have the same status. However, UTs do enjoy certain level of independence and autonomy
based on the constitutional provisions such as Article 239 AA etc.
The independent identity of the UTs is due to recognition of their existence and some
autonomy provided to manage the administrative affairs, subject to overall control by the
Centre. The level of independence too varies between UTs, depending on if there is a
separate legislature. For example, Delhi and Puducherry have their own Consolidated Fund
and Contingency Fund, and the budgets are passed by their own elected legislatures.
Whereas, accounts of Chandigarh, Lakshadweep and others form part of the accounts of
Union Government.
Further, the legislative assemblies of Delhi and Puducherry can formulate their own laws on
various subjects and the respective Governments can make their own policies though they
may be overruled by Union anytime in case of discrepancy. However, the Advisory
Committees of all other UTs can only advise Union Government regarding legislative,
budgetary and policy proposal for the UT.
This is in contrast to the autonomy enjoyed by the States, which is Constitutionally secured.
The subjects on which a State can legislate cannot be generally interfered by the Union. The
policies of the State cannot be subverted by the Union arbitrarily. Rather, Centre always
needs cooperation of States even to get its own policies implemented. So, persuasion,
discussion and other tactics are used to convince the States.
In simple words, the independence of the States is like that of a Business Partner, while that
of the UTs is like that of a child, subject to the overall supervision of the Union (parent).
Hence, the independence does depend a lot on the equation with the ruling parties in both
the UT and the Union Government.
Further Information:
The administrative head of the UTs is the President of India, who is represented in the UT by
an officer designated as Administrator or Lieutenant Governor. The Government of Union
Territories Act, 1963 requires all UTs to have a Council of Ministers responsible to an elected
legislative assembly. Presently only Delhi and Puducherry have these entities. Though,
Delhis Council of Ministers and the legislative assembly derives authority from Article 239AA
of the Constitution of India.

12. The amendment that has been passed recently to the Child Labour (Prohibition &
Regulation) Act 1986 will have an adverse effect on the goals that are to be achieved
under the Right to Education Act 2009. Do you agree with the above statement?
Ans:
According to 2001 Census, more than 12 million children in the age group 5-14 are engaged
in exploitative occupations that are detrimental to their rights and to the full development of
their potentials. One in every 11 children in India is working. These child labourers are
exploited, exposed to hazardous work conditions and forced to forego education, shouldering
responsibilities far beyond their ages.
The Amendments To Child Labour Act 1986

In India, children are provided with constitutional safeguards like Article 21A, Article 24,
Article 39(f) etc as well as legal safeguards like Child Labour (Prohibition &

11

Regulation) Act 1986. India is also signatory to ILO Forced Labour Convention, and
UN Convention on the Rights of the Child (CRC).

Despite these provisions, India has not been able to stop the employment of children. In
this regard the new amendment in Child Labor Act 1986 is a welcome move. The
amendment makes it clear that children between 14 and 18 years will not be allowed to
work in hazardous industries and bars the employment of children under the age of 14 in
any occupation. Thus, the age of prohibition of employment has been linked to age under
Right of Children to Free and Compulsory Education Act, 2009.

Anti-thetical to RTE: An Analysis

However, there seems to some problems with the amendments. Instead of attempting an
overhaul of legislation that has proved ineffective in curbing the phenomenon, Parliament
has allowed children up to the age of 14 to be employed in family enterprises.
Moreover, exemption has also been given where the child works as an artist in an audiovisual entertainment industry, including advertisement, films, television serials or
sports activities except the circus.

Hence, it is alleged that the amendment will have an adverse effect on the goals that are
to be achieved under the Right to Education Act 2009 by tweaking the law in such a way
that children are in some form or other available for employment in the name of
acknowledging the socio-economic realities of India.

But the above allegation is not completely true. Exceptions have been made in case of
works in which the child helps the family or family enterprises. The condition is that such
enterprises should not be involved in any hazardous occupation and that the children
should work only after school hours or during vacations.

Way Forward and Conclusion

Child Labour issue in India is a complex one. On the one hand, poverty and socio-economic
conditions in India justify children helping their families in certain occupations; while on the
other it creates practical hurdles in implementation of the law.
Although the governments intention to amend the Act is to be appreciated, regulation is
going to be a key in the success of recent amendments, as it will be difficult to determine
whether a particular family is running an enterprise, or whether some faceless owner has
employed a single family to circumvent the law.

13. Punishing a person for mere possession of beef amounts to state intrusion into a
citizens right to life and personal liberty. Critically examine the above statement.
Ans.
While upholding the slaughter ban imposed after enactment of the Maharashtra Animal
Preservation (Amendment) Act, the Bombay HC had recently struck down certain
amendments in the Act which bans even the possession of beef imported from a State where
cow slaughter was not illegal.
The HC justified its decision in favour of slaughter ban, saying that its purpose was to protect
the cow and its progeny and not prevent people from eating beef. Even after these animals
cease to be useful for the purpose of breeding or even if they become too old to do work,

12

such bulls or bullocks continue to give dung for fuel, manure and bio-gas and therefore they
cannot be said to be useless," the court said.
But, the HC had held that punishing a person for mere possession of beef amounted to State
intrusion into a citizen's right to life and personal liberty a freedom assured under Article
21 of the Constitution."As far as the choice of eating food of the citizens is concerned, the
citizens are required to be let alone especially when the food of their choice is not injurious to
health," the court said.
Earlier Supreme Court Judgements On Cattle Slaughter
In Hanif Qureshi vs State Of Bihar 1958, a five-judge bench held that cattle, except cows of
all ages and calves of both cows and buffaloes, not capable of milch or draught can be
slaughtered. The court classified such cattle as useless and found that keeping useless
cattle alive would be a wasteful drain on the nations cattle feed. The Court also held that
beef or buffalo meat is an item of food for a large section of the people in India.
But in Moti Kureshi Kassab vs State Of Gujarat 2005, a seven-judge Bench over-rode
1958 verdict and upheld Gujarats total ban on cattle slaughter, regardless of whether the
bovine is useless or useful. It said the 1958 verdict only reflected Indias panic due to food
scarcity of that era. The court ignored the reasoning that beef was the poor mans proteinrich diet as beef contributes only 1.3% of the total meat consumption pattern of the Indian
society.
Analysis Of The Issue
The debate is mainly focussed on the conflict between Right to Life and Personal Liberty
under Article 21 and the Right to Religion under Article 25 & 26.
But the religious argument seemed to be of less importance which the Bombay HC has also
held. It justified slaughter ban on the grounds of its usefulness, which is an economic reason.
On the question of possessing beef, it should be noted that the State cant control what a
citizen does in his house which is his own castle, provided he is not doing something contrary
to law. A citizen has a right to lead a meaningful life within the four corners of his house as
well as outside his house. This intrusion on the personal life of an individual is
prohibited by the right to privacy which is part of the personal liberty guaranteed by
Article 21.
Ban on beef possession will also hit upon the cosmopolitan nature of the city, which houses
people from all religions and communities. Further, there don't seem to be any compelling
public or state interest for criminalising possession of beef, as rightly noted by the Bombay
HC also.
Conclusion
It is well settled that what is protected under Articles 25 and 26 is only such religious practice
which forms an essential and integral part of the religion. A practice followed may be a
religious practice but if it is not an essential or integral part of the religion then the same is
not protected by Article 25 of the Constitution of India.
A genuine secularism in India requires that the forces of individual liberty be given
priority over social orthodoxy, that our rights as citizens become progressively detached
from our particular identities, that there is genuine distrust of the states intrusive power over
individual lives.

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14. The emergence of doctrine of basic structure of the Constitution has helped not only in
maintaining the dynamism of the Constitution but also the balance in the overall
constitutional scheme. Discuss.
Ans.
No Constitution can work in a vacuum. It has to serve the society that has created it. It has to
respond to the changes that take place in the society and meet its demands that are
legitimate. A Constitution, therefore, cannot afford to be unamendable. If the Constitution
cannot be amended, it will lose its dynamism, lag behind the changes that take place
constantly in the society and become a legal dinosaur. When the Supreme Court in Golak
Nath vs. State of Punjab 1967 case ruled that the Parliament did not have the power to
amend the Constitution, including the Fundamental Rights, it put the Constitution at the risk
of becoming static.
The Supreme Court quickly revised its stand on the issue of amendability of the Constitution
in the Keshavananda Bharti vs. State of Kerala 1973 case by postulating the doctrine of
basic structure of the Constitution. While acknowledging the inherent constituent legislative
power of the Parliament under Article 368, the Supreme Court, under the doctrine of basic
structure clarified that such an amending power of the Parliament is not unlimited, but limited
to the extent of not destroying the basic structure of the Constitution.
The Supreme Court by declaring supremacy of the Constitution, secularism, rule of law,
independence of judiciary, judicial review etc as parts of the basic structure of the
Constitution prevented such pillars on which the constitutional edifice has been built from
being destroyed. Thus the basic structure concept is at the foundation of maintaining the
overall constitutional scheme intact, while allowing the Constitution to be amended by the
Parliament wherever necessary.

15. If relations between Government and NGOs are observed, there is an ever increasing
trust deficit. Analyse the reasons. Do you think civil society activism can be curbed
through strong regulations by the Government? Give reasons.
Ans:
State and civil society are the two important pillars for functioning of a vibrant democracy.
Unfortunately in India, there is a trust deficit between these two pillars. The reasons include:
A) Different perspectives of development Civil society accuses the government models of
development as being too centralized and growth-focused; the neo-liberal mode of
development excludes certain sections of the society, who are the main focus for civil
society. Eg. Growing displacement of tribals from mining and hydro-electric projects
involves collision between civil society and State. Whereas, government views civil
society's work as obstructionist. Eg. A recent IB report has said that civil society actions
are responsible for the loss of 2-3% economic growth.
B) Policing attitude of the State Civil society accuses the State of over regulating their
functioning. For eg. Policing attitude of the State through FCRA, freezing of accounts,
screening of civil society actions by Ministry of Home Affairs, imposition of sedition laws
and defamation.
C) Civil society activism The State accuses civil society of undermining the democratic
institutions and their functioning, of colluding in corrupt practices, lacking in

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accountability, opaque in functioning. The State asserts that civil society organizations
are accountable to their donors but not the people they serve. On the other hand, in India,
the amount of funds received by the civil society from the foreign sources is minimal with
funds being used for rural development, education, health care delivery.
The very nature of the function of civil society is to control the authoritative tendencies of the
state. So for the functioning of sound democracy, governmental regulation on civil society is
unwarranted. Across the world, self regulation is practiced. For example, international civil
society centre developed a code of conduct for the civil society and similar development is
expected in India.
Finally, it can be concluded that any anti-State action is within the scope of the democratic
rights but any anti-national actions of civil society need to be condemned. But, concluding an
anti-State action as anti-national and punishing civil society is not in the democratic spirit. At
the same time, civil society shall see the State as a partner in development and not other
way round.
16. Discuss the application of the concept of social equity on gender, human development,
human rights and poverty in the context of India. Add necessary examples.
Ans:
Social equity is based on foundational principles such as fair access to livelihood, education
and resources, full participation in the political and cultural life of the community and involves
providing equal access to opportunities based on merit.
In this context, gender and caste inequalities go against the principles of social equity. GoI
has taken up various initiatives for upliftment of poor and marginalized and to remove the
inequalities. These include:
1. Stand-up Scheme Aims to provide loans to Dalit and women entrepreneurs.
2. Beti bachao, Beti padhao. Aim is to create a literate girl child.
3. Mudra Bank Aim to improve financial access to women for self employment.
Added to above, major approaches of the government towards the goal of social equity can
be broadly classified as follows:
A. Universal services GoI and many State governments have enacted various laws under
rights-based approach to provide universal access to amenities to health and education.
B. Targeted approach Identification of deprived and programs targeted to remove their
specific deprivation. Eg. Housing scheme for poor.
C. Social safety nets For the elderly, homeless, industrial workers and agricultural
labourers who have been provided with pensions and social safety nets.
But still there are many major challenges which exist in India. These include:
1. Many of the inequalities overlap in India. For eg. Caste-based social inequalities
overlap with economic inequalities. Redistribution of power in the society through
democratic means happens slowly.
2. Many of the social deliverables suffer from huge leakages. Eg. PDS.
3. Social Justice in India is equated with reservations and is seen from a very narrow
prism.

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17. Do you think Group self management and the benefit to each member creates
sustainability of SHG movement. Analyse difficulties faced by SHG movement in
sustaining itself. Add a note on the recent initiatives of the Government to sustain the
SHGs.
Ans:
Self Help Groups refer to self organized groups based on social affinities in the societies
working towards a collective economic purpose or goal. Important factors that determine the
success of self help groups are:
1. The capacities of its members to manage the affairs of an SHG.
2. Access to finances In India, the Bank-SHG model is very successful. It depends on the
trust between the SHGs and Banking sector.
But, the major problem in India is the target-based approach in the creation of SHGs. It has
led to the creation of poor quality SHGs without any proper training to its members. For
example, Swarnajayanti Gram Swarozgar Yojana (SGSY) has allocated only 5% of the funds
for the training of members. The other problems include:
1. Creation of poor quality SHGs No importance has been given to the affinity, or
homogeneity among the members. Caste has become the common affinity factor in rural
areas.
2. High interest rates Micro Finance Institutions (MFI) collected interest rates to the tune of
36-50% From SHGs. In this context, Malegaon committee recommended for regulation of
MFI and fixing the upper ceiling at 24% can be heeded to.
3. Loan waivers Political promises of loan waivers for the Women SHG led to their default
on loan payment. It created mistrust between the Banks and SHGs. In this scenario, lack
of financial access has become a major hindrance for the growth of the SHG movement.
The following initiatives of the government have taken the movement in the right direction:
1. MUDRA Micro Units Development and Refinance Agency It provides loans at low
interest rate to the MFIs.
2. SHG-2 of NABARD It aims to provide for flexible loans to SHGs. Added to this, credit
ratings are given to the SHGs for analyzing their performance. These are aimed at
improving the quality of SHGs.
Finally, MYRADA and SEWA the NGOs who pioneered the SHGs say that, capacity building
of participants is one single factor that determines the success of SHGs. So, it needs to be
realized that nurturing SHGs needs patience and time.
18. Urban poor lead a deplorable life compared to rural poor. Identify the reasons and impact
of this on urban crime.
Ans:
1.
2.
3.
4.

The urban poor are invisible

There is a rural to urban migration of poverty.
The urban poor are not categorized for easy targeting of social programs.
Government programs are majorly intended to benefit the rural poor rather than the urban
poor.
5. Urban penalties Urban poor suffer from basic deprivations. In this scenario, the
chances for exploitation, subservience increases.

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Added to this, the urban poor are the worst victims of various forms of urban crimes such as:
1. Communal violence.
2. Domestic and other gender based violence.
3. Exploitation and deprivation can breed a sense of loss. It can pull the people towards
crime.
4. Child labour, poverty, street violence can provide a ground for urban crime. It can
worsen with wider economic inequalities.

19. Analyse the impact of globalisation on labour markets in India. Do you think the recent
reforms initiated by the Government of India to be in the spirit of Make in India?
Ans:
In India, there are rigid labour laws in the formal sector and lack of basic regulation in
informal sector. Globalisation has impacted the labour markets both in positive and negative
ways.
On the positive side:
1. Labour markets got widened and new sunrise sectors became the generators of the
employment.
2. Free trade, interconnected markets have raised the levels of employment and choices
available which is critical for the countries that are going through the democratic dividend
phase such as India.
3. Labour migration has increased.
On the negative side:
1. There is an increased casualisation and informalisation of labour. Many industries are
running on contractual work force to avoid the regulatory burden.
2. Social safety nets are decreasing. As per the annual report of ILO 2015 India has the
lowest social safety nets for the employees in unorganized sector.
3. Decrease in employee bargaining power - It is a direct outcome of knowledge-based
sectors.
In such a scenario, following are the recent initiatives of the Government to reform the crucial
labour sector:
1. Shram Suvidha (Unified Portal for Labour and Employment) portal It is a uniform portal
to submit different reports to the Government. It is envisaged as a single point of contact
between employer, employee and enforcement agencies.
2. Labour Code on Industrial Relations The objective is to create a single law unifying the
Industrial Disputes Act 1947, Trade Unions Act 1926 and Industrial Employment Act
1946.
3. Labour welfare GoI has revised the Minimum Wages Act, Payment of Bonus Act to
benefit the wider group.

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4. Amendment to the Apprenticeship Act It allows wide range of sectors including small
scale industries to offer for apprenticeships. To protect the interests of the apprentice,
their minimal salary levels also are to determined by the Government.
5. Factory Act It has been amended to allow flexibility in working hours. Now, women are
also allowed to work in the night shift. This flexibility can benefit the textile and garment
sector.
So, the relaxation of norms will definitely benefit the Make in India initiative, but welfare of the
workers and growth of economy shall go hand in hand.
20. Preventive care is the base on which universal health care is built across the countries.
Do you think insurance based health care delivery can be a road to universal health
care? Suggest measures to achieve the same in India.
Ans:
Universal health care refers to the providing of certain basic health care services to all
citizens irrespective of their affordability to pay for such services. The objective of health care
reform is to provide for access, affordability and equity in health care services. In this
scenario following are the major challenges in India:
1. Out of pocket expenditure According to the National Health Account statistics 66% of
the total health expenditure in India is out of pocket health expenditure. The major
components of the expenditure are the health care personnel charges and cost of the
medicines. If 0.5% of GDP is spent on the centralized procurement of medicines it can
decrease the out of pocket expenditure by 2/3rd. Thailand, which has been able to
achieve health care access to 98% of its population with only 27% out of pocket health
expenditure is a good example for India to emulate.
2. Excessive reliance on insurance based health care No country across the world has
achieved universal health care on insurance based health care. The very nature of its
functioning excludes the elderly and people with pre-existing diseases to increase their
profitability. In this scenario, Cuba can stand as a successful example for improving
health care delivery through state apparatus.
3. Low public health care expenditure India spends less than 1% of its GDP on health
care delivery.
4. Emphasis of curative care rather than preventive care Emphasis on preventive care will
decrease the burden on the curative care in the long run.
5. Skewed distribution of manpower This exists between urban and rural, developed and
undeveloped regions of the country. Lack of sufficient manpower is another reason. The
recent reforms to MCI can restructure medical education in India.
So, if India needs to achieve universal health coverage, it needs to be guided by the model of
Cuba rather than the USA. The Cuba model can be said to be effective with least costs.

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