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5 April 2017 Question Bank


5th APRIL 2017


(2 Questions)

Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.

Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.


1.      The top court’s orders banning liquor sale on highways encroach upon the executive’s domain of policymaking. Comment.


Polycentric Problems:

  • Decades ago, Lon Fuller, the famous American legal philosopher, coined the term “polycentric problems”.
  • Certain social issues, according to Fuller, involved a complex set of interdependent relationships, where changing one feature could result in unforeseen and far-reaching changes to other features.
  • A polycentric problem was like a spider web, where “a pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole”.
  • Fuller argued that the judiciary was particularly ill-suited to resolve polycentric problems.
  • The structure of the judicial process was not oriented towards taking into account the effect that a ruling would have on the many interdependent strands of a polycentric situation.
  • Furthermore, the judiciary did not have the time, the resources, or the institutional expertise to engage in the kind of fine-grained, evidence-based, compromise-requiring balancing act that was required to prevent the web from snapping altogether.

The Supreme Court order and its collateral consequences:

  • The Supreme Court’s order on December 15, 2016 — which it modified and expanded on March 31, 2017 — prohibiting the sale of alcohol within 500 metres of national and State highways highlights the perils of polycentric adjudication.
  • While the stated reason for this order is the overriding imperative of preventing road accidents due to drunken driving, already there are reports about the collateral consequences: lost livelihoods and a substantial hit in tourism for States such as Goa, to name just two.
  • The court’s clarification — that its initial order applied not merely to “liquor vends”, but also to bars, hotels, and restaurants — has led to the paradoxical consequence of even members-only clubs being forced to go dry because of their proximity to a highway.

Case of judicial overreach:

  • It has been argued that banning alcohol — and micromanaging the distance from the highways where alcohol cannot be sold — is a classic example of policymaking, and that the Supreme Court has indulged in “judicial overreach”.
  • In its December 15 order — which it then reiterated on March 31 — the court referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents.
  • It also referred to the fact that the Central government had issued circulars “advising” State governments not to grant any new licences to liquor shops along the highways.
  • The Supreme Court’s reference to the “expert determination” of the Union government does not help, because the question is not whether the government’s determination is correct or incorrect, but which body is authorised to act upon that determination.

Action under Article 21

  • That the court was itself aware of the insufficiency of this argument is clear from the fact that it went on to justify its order under Article 21 of the Constitution, which guarantees the right to life and personal liberty (this argument was reiterated in the March 31 order).
  • There are a lot of things that the state does, or does not do, which ultimately affect peoples’ lives. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the state was to ban all junk food. That, however, would not justify the court invoking Article 21 and directing the state to ban all junk food, on the ground that it was failing in its obligations under Article 21 through its inaction.

Order passed under Article 142

  • Lastly, the court concluded by clarifying that it was passing orders under Article 142 of the Constitution. Article 142 empowers the Supreme Court to do “complete justice” in any case before it. However, this power is bounded by the further requirement that the court act “within its jurisdiction”.
  • Article 142, therefore, is not a carte blanche for the Supreme Court to implement its vision of justice, without regard to issues of institutional competence and legitimacy.
  • In the liquor ban case, despite its efforts to do so, the court has failed to make out a compelling case for why its orders do not encroach upon the executive’s domain of policymaking.



2. What is a recall election? Should it be introduced in India? Does it have the potential to be misused?


Recall election

  • A recall election is typically a process by which voters seek to remove elected officials through a direct vote before their term is completed. Voters can petition to have their parliamentary representatives removed from office.
  • It has been in place in Canada’s Legislative Assembly of British Columbia since 1995.
  • In the United States, some states allow for recall on specific grounds such as misconduct or malfeasance.

Its progress in India

  • This is not a new concept for India.
  • The concept of “Rajdharma”, wherein the lack of effective governance was a cause for removal of a king, has been spoken about since the Vedic times.
  • Jayaprakash Narayan, in 1974, spoke extensively on the subject.
  • Section 47 of the Chhattisgarh Nagar Palika Act, 1961, provides for holding of elections to recall elected officials due to non-performance.
  • The Right to Recall also exists at local level bodies in Madhya Pradesh, Bihar and Chhattisgarh.

Justification for recall elections:

  • In a first-past-the-post system in a democracy, unfortunately, not every elected representative truly enjoys the mandate of the people.
  • Logic and justice necessitate that if the people have the power to elect their representatives, they should also have the power to remove these representatives when they engage in misdeeds or fail to fulfil their duties.
  • The Representation of the People Act, 1951, only provides for “vacation of office upon the commission of certain offences and does not account for general incompetence of the representatives or dissatisfaction of the electorate as a ground for vacation”.
  • Having such a right offers a mechanism to ensure vertical accountability. Such a right would be a significant check on corruption along with ongoing criminalisation of politics.
  • Numerous studies highlight that elected representatives who are not up for election behave differently to those who are.
  • Having a process to recall could also limit campaign spending, as morally skewed candidates weigh the risk of being recalled.
  • This right would help engender direct democracy in our country, broadening access and raising inclusiveness.

Some safeguards

  • To encourage the process of the right to recall, legislative change is needed which seeks to introduce recall petitions, for elected representatives in the Lok Sabha and in respective Legislative Assemblies.
  • While it is necessary to ensure that a recall process is not frivolous and does not became a source of harassment to elected representatives, the process should have several built-in safeguards such as:

(i)      an initial recall petition to kick-start the process

(ii)     electronic-based voting to finally decide its outcome

(iii)    ensure that a representative cannot be recalled by a small margin of voters

(iv)    recall procedure truly represents the mandate of the people.

(v)     To ensure transparency and independence, chief petition officers from within the Election Commission should be designated to supervise and execute the process.

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