SHIKHAR Mains Day 9 Model Answer - English

Q1: जनहित याचिका से आप क्या समझते हैं ? इसके कार्यान्वयन से जुड़ी सीमाओं का समालोचनात्मक परीक्षण कीजिए।

What do you understand by Public Interest Litigation? Critically examine the limitations associated with its implementation. (8 Marks)

Approach -

·       Write about the public interest litigation in the role.

·       In the body, write Public Interest Litigation as an effective way to get justice for those who cannot afford it.

·       Then provide limitations for the effective implementation of PIL along with the steps taken to prevent misuse of it. 

·       Conclude accordingly. 

Answer:

Public interest litigation was started in the United States in the 1960s. It was started in India in the decade of 1980s with the efforts of Justice VR Krishna Iyer and PN Bhagwati. Through public interest litigation, any person from the society can file a petition in the judiciary on issues related to public interest and can request the judiciary for judicial intervention in the interest of the society or community.

PIL is also known variously as Social Action Litigation (SAL), Social Interest Litigation (SIL) and Class Action Litigation (CAL)

The vision of establishing the rule of law, protecting the fundamental rights and providing justice to the socially and economically backward people is contained in the PIL.

Role of Public Interest Litigation

·       It is a strategic part of the Legal Aid Movement (Article 39A);

·       It encourages the collective or community effort of the society and makes people aware of the rights of the society;

·       The principle of Public Interest Litigation deals with Article 32 and Article 226;

·       Through this, the judiciary has to discharge the role with a positive attitude.

·       PIL is a humane way of reaching legal aid to the poor and marginalized masses. In which petition is filed in the court for the prevention of public injury, enforcement of public duty, protection of collective rights and interests.

Public interest litigation is generally accepted as a public interest litigation under -

·       Bonded labour matters

·       Neglected children

·       Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of Labour Laws (except in individual cases)

·       Petitions from jails complaining of harassment, for premature release and seeking release after having completed 14 years in jail, death in jail, transfer, release on personal bond, speedy trial as a fundamental right

·       Petitions against police for refusing to register a case, harassment by police and death in police custody

·       Petitions against atrocities on women, in particular harassment of bride, brideburning, rape, murder, kidnapping, etc.

·       Petitions complaining of harassment or torture of villagers by co-villagers or by police from persons belonging to Scheduled Caste and Scheduled Tribes and economically backward classes

·       Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance

·       Petitions from riot-victims

·       Family pension

Limitations associated with the implementation of PIL-

·       An unanticipated increase in the workload of the superior courts: PILs have interfered with the normal judicial functioning of the court leading to increase in the number of pending cases before Supreme Court and High Courts, resulting in the choking of the legal system.

·       Abuse of process: PILs have been vastly misused where it has degenerated into private interest litigation. It has given rise to the filing of frivolous and vexatious petitions, filed before the court.

·       Friction and confrontation with fellow organs of the government: A major criticism of PILs is that through this medium judiciary is encroaching the domain of Executive and Legislature. Over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society, but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies.

Steps taken to prevent misuse of PILs

·       The SC has warned that the court shall have the power to impose exemplary compensation on the parties that misuse the PIL. Further, a party that brings a PIL in the court shall have to prima facie establish a case before the court, before the court takes up the case for further action.

·       The court has also started establishing the Scrutiny Committees consisting of public-spirited lawyers, social workers etc. to scrutinize the PIL filed and submit the report to the court explaining the merit in the case if there is any to save the court’s precious time. In this regard, the court has also been taking help of Amicus Curiae (friend of the court). The Supreme Court also cautioned the high courts to be cautious while taking up a PIL that it should not interfere in the policy issues of executives.

·       The Supreme Court has devised guidelines defining the process and the issues, which can be accepted as PIL.

Striking a balance in allowing legitimate PIL cases and discouraging frivolous ones. One way to achieve this objective could be to confine PIL primarily to those cases where access to justice is undermined by some kind of disability. The other useful device could be to offer economic disincentives to those who are found to employ PIL for ulterior purposes.

Q2: जनप्रतिनिधित्व अधिनियम, 1951 के तहत किस आधार पर किसी प्रतिनिधि को अयोग्य ठहराया जा सकता है? चर्चा कीजिए।

On what grounds a people’s representative can be disqualified under the Representation of Peoples Act, 1951? (12 Marks)

Approach- 

·       Write a brief introduction about the RPA, 1951. 

·       Then list out different grounds for disqualification provided under RPA, 1951. 

·       Conclude with highlighting the importance of RPA, 1951 in democracy. 

The Representation of the People Act, 1951 provides for the conduct of elections to the Houses of Parliament and to the Houses of the State Legislature, the provisions regarding qualification and disqualification for the membership, and remedies of disputes in connection with such elections.

Representation of the Peoples Act, 1951 in Chapter III of Part II provides for 8 different grounds for disqualification for Membership of Parliament and State Legislatures:

1.     Section 8(1) provides for disqualification on conviction for certain offences A person convicted of an offence punishable under the following crimes will be disqualified: under Indian Penal Code 1860- Section 153A, Section 171E & F, Section 498A; Foreign Exchange (Regulation) Act, 1973, Sections 10 to 12 of the Unlawful Activities (Prevention) Act, 1967; Terrorist and Disruptive Activities (Prevention) Act, 1987; Commission of Sati (Prevention) Act, 1987; Prevention of Corruption Act, 1988; Prevention of Terrorism Act, 2002, etc. 

2.     Under Section 8(2), a person convicted for the contravention of any law regarding prevention of hoarding or profiteering, adulteration of food or drugs or Dowry Prohibition Act, 1961 and sentenced to imprisonment for not less than 6 months.

3.     Under Section 8(3), a person convicted of any offence (other than any offence mentioned in Section 8(1) or Section 8(2)) and sentenced to imprisonment for not less than two years will be disqualified from the date of such conviction and will continue to be disqualified for a further period of six years since his release.

4.     Section 8A provides for disqualification on ground of corrupt practices i.e. a person guilty of certain corrupt practices specified in Section 123 of RPA, 1951 shall stand disqualified. Such disqualification is subjected to the condition that the charges are established through an election petition before the High Court and presented to the President as a High Court Order. Further, the President will decide upon the disqualification and the duration of such disqualification after obtaining an opinion from the Election Commission.

5.     Section 9 provides that a person who having held an office under the Government of India or under the Government of any State in the past and has been dismissed for corruption or for disloyalty to the State will be disqualified for a period of five years from the date of such dismissal.

6.     Section 9A provides for disqualification for government contracts, etc i.e. person shall be disqualified if there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by that Government.

7.     Section 10 provides for disqualification for office under government company i.e.A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a cooperative society) in the capital of which the appropriate government has not less than twenty-five per cent share.

8.     Section 10A: Disqualification for failure to lodge account of election expenses.

However it is mentioned in Section 11 of RPA, 1951 that Election Commission may remove any of the above disqualification except under Section 8A or reduce the period of any such disqualification.

Elections are the life line of any democracy. The robustness of electoral processes determines the fate of the nation. The timely reforms to the electoral process by ECI, according to the changing needs of the society and the strong review of the judiciary have helped in conduction of free and fair elections till date.