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27 January 2017 Question Bank


27th JANUARY 2017 


(2 Questions)

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

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1.      The recent Supreme Court judgment ruled that ordinances are not immune from judicial review. Elucidate.


Ordinance: an exceptional measure

  • Article 123, which defines the ordinance-making power of the Union executive, states that when both Houses of Parliament are not in session, if the President is satisfied that “circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require”.
  • It’s equally clear even from the bare text of the Constitution that the authority to issue ordinances is to be used only to meet the emergent demands of extraordinary situations.
  • It further provides that any ordinance shall have the same force and effect as a statute of Parliament, provided it is laid before both Houses.
  • What’s more, the ordinance so made will “cease to operate at the expiration of six weeks from the reassembly of Parliament”, or if Parliament at any time before the conclusion of the period passes resolutions disapproving of the ordinance.
  • In nearly identical terms, Article 213 of the Constitution places on the Governor, acting on the advice of the Council of Ministers of his State, the power to pass ordinances on subjects of State authority.

Recent Supreme Court judgment:

  • On January 2, 2017, the Supreme Court, in Krishna Kumar Singh v. State of Bihar, made a series of pronouncements with potentially huge implications for the future of democratic governance in the country.
  • The case raised intricate constitutional questions concerning the executive’s power to make law through ordinance.
  • For far too long, the court recognised, the power to make ordinances has been abused to subvert the democratic process.
  • A failure of a legislature to confirm an ordinance, therefore, in the court’s ruling, was fatal both to the validity of the law, and also, unless public interest otherwise demanded, to the rights and liabilities that may have accrued from such a law.
  • According to Justice Chandrachud, the authority to issue ordinances is not an absolute entrustment, but is “conditional upon a satisfaction that circumstances exist rendering it necessary to take immediate action”. In other words, ordinances are not immune from judicial challenge.


A clear case of abuse

  • Here in question were a series of ordinances passed by the government of Bihar through which the State sought to take over some 429 Sanskrit schools, transferring in the process the services of all the teachers and other employees of the schools to the State government.
  • The first ordinance, which was issued in 1989, was followed by a succession of five ordinances, none of which was placed before the State legislature.
  • Ultimately, the government failed to enact a statute confirming the terms of the ordinances, and the last of them was allowed to lapse on April 30, 1992.
  • The employees of the schools, who stood discharged from service, as a result of the termination of the ordinances, took the State government to court.
  • When the case ultimately reached the seven-judge bench for arguments there were two fundamental questions to be answered:

1.       whether the ordinances issued by the Bihar government were constitutionally valid, and

2.       whether the petitioners had derived any legal right that survived the termination of the ordinances.

Ordinance subject to judicial review:


  • On the first, Justice Chandrachud went beyond existing precedent to hold that not only repromulgated ordinances, but even ordinances issued at the first instance, are subject to judicial review. Here, he placed reliance on the celebrated S.R. Bommai case (1994), where a nine-judge bench of the court had ruled that the judiciary could strike down a proclamation of emergency when the power had been exercised by the executive to secure an oblique purpose.
  • Justice Chandrachud ruled that a similar standard of review could be applied to ordinances too; the court, in these cases, he held, will not enquire into the adequacy or sufficiency of the material before the President or the Governor, but it can investigate to see if there has been either a fraud or an abuse of power committed by the executive.

Ordinance different from temporary statute:

  • On the second question, the court overruled two of its earlier judgments, and binned what it described as a theory of enduring rights.
  • It ruled that an ordinance is distinct from a temporary legislation, and it therefore doesn’t automatically create rights and liabilities that go beyond its term of operation. “While enacting a law, the legislature is entitled to define the period during which the law is intended to operate,” wrote Justice Chandrachud. “…Hence, it lies perfectly within the realm and competence of the legislature which enacts a temporary law to provide that the rights or the liabilities which are created during the tenure of the law will subsist beyond the expiry of its term.”
  • But an ordinance, unlike a temporary statute, is not a creature of the legislature. Therefore, the court held, these orders have the same force and effect of a legislation only so long as they are operational. In other words, once the conditions imposed by Article 123 or Article 213, as the case may be, are infracted, the question of what effects will survive from the ordinance will have to be independently assessed. In such circumstances, wrote Justice Chandrachud, the court must examine whether the undoing of acts performed under an ordinance would run counter to public interest.
  • Now, while Justice Chandrachud is certainly correct in ruling that an ordinance would not automatically create enduring effects, a test of public interest could prove somewhat problematic in the future. There may well be cases where an ordinance creates outcomes that are manifestly irreversible, despite public interest demanding its reversing. However, that said, these issues could well be ironed out when subsequent benches are faced with such questions.

Another case of abuse of ordinance making power:

  • In practice, ordinances have scarcely been used as a purely exceptional measure.
  • Most recently, the Central executive had issued an ordinance in 2014, which it subsequently repromulgated three times without approval, to overturn significant benefits guaranteed by the land acquisition law enacted by Parliament in 2013.
  • Their aim clearly was to bypass the democratic requirements of argument and deliberation, and to overcome numerical shortcomings that they faced in the Rajya Sabha.
  • What the government was doing, therefore, was to use its ordinance-making power as virtually an alternative tool of legislation.
  • It was a similar abuse of power that had been placed before the Supreme Court for its examination in Krishna Kumar Singh.

Land acquisition in India

  • Land acquisition in India refers to the process by which the union or a state government in India acquires private land for the purpose of industrialisation, development of infrastructural facilities or urbanisation of the private land, and provides compensation to the affected land owners and their rehabilitation and resettlement.
  • Land acquisition in India is governed by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR) and which came into force from 1 January 2014.
  • Till 2013, land acquisition in India was governed by Land Acquisition Act of 1894.
  • On 31 December 2014, the President of India promulgated an ordinance with an official mandate to "meet the twin objectives of farmer welfare; along with expeditiously meeting the strategic and developmental needs of the country".
  • An amendment bill was then introduced in Parliament to endorse the Ordinance. Lok Sabha passed the bill but the same is still lying for passage by the Rajya Sabha.
  • On 30 May 2015, President of India promulgated the amendment ordinance for third time.
  • Union Government of India has also made and notified the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014 under the Act to regulate the procedure.
  • The land acquisition in Jammu and Kashmir is governed by the Jammu and Kashmir Land Acquisition Act 1934.


  • In the final analysis, the court’s verdict has to be seen as placing a vital check on what has until now been a power rampantly abused by the executive.
  • Inconvenient as legislative debate and deliberation can be, the legislature constitutes a critical foundation of our democracy.
  • Parliament must be seen by both the ruling dispensation and the opposition as a forum for debate, for making laws based on critical reasoning.
  • To await the completion of the session, and to create laws then by circumventing this process through ordinance, debases altogether the Constitution and its finest ideals.



2.      Economists are advocating universal basic incomes for fighting inequality, slow wage growth, advancing automation and fears that immigrants will take away jobs. Discuss its viability in India.


Universal Basic Income endorsed:

  • Chief Economic Adviser Arvind Subramanian has said that he is devoting a chapter in the annual Economic Survey (to be presented on January 31) to discussing unconditional universal basic income as a tool for poverty reduction.
  • The first known suggestion on an unconditional universal basic income for all adults regardless of other income sources was from Thomas More.
  • Centuries later, in 1918, Bertrand Russell asserted, A certain small income, sufficient for necessities should be secured to all, whether they work or not, and that a larger income — as much larger as might be warranted by the total amount of commodities produced — should be given to those who are willing to engage in some work which the community recognises as useful.”
  • With anti-globalist populism on the rise, several advanced countries are considering whether they should start mailing cheques to the unemployed.
  • Finland’s is the best known trial. Two thousand randomly selected unemployed Finns will for the next two years receive €560 in guaranteed tax-free incomes every month. The payments will continue even when they try out odd jobs. If the pilot is successful, the programme could be extended to all adult Finns.

Pros of universal basic income:

  • Economists are advocating universal basic incomes for  fighting inequality, slow wage growth, advancing automation and fears that immigrants will take away jobs.
  • While free trade and technological advances have grown national incomes, not every individual is better off. There are winners and losers.
  • Redistributive government intervention is needed so that no one is left worse off.
  • To those too weak, unwell or challenged physically to pick up skills and take up jobs, guaranteed incomes provide a safety net.
  • Where people are skilled and employed, but receive low wages, as seen in the case of handloom weavers or in small enterprises, basic incomes can supplement earnings and support welfare.

Lessons from a pilot project

  • The ‘transformative’ potential of guaranteed unconditional incomes was demonstrated in Madhya Pradesh back in 2014, which is documented in the book Basic Income: A Transformative Policy for India (2015).
  • The income supplements given amounted to less than a third of monthly expenditure for families living at the poverty line.
  • The authors reported several positive effects of the experiment:

1.       Nutrition intake rose. Specifically, consumption of pulses, fresh vegetables and meat was up 1,000%, 888% and 600% respectively.

2.       As a result, incidence of illness dropped.

3.       Enrolment and attendance, especially among female students, in schools improved.

4.       It resulted in more equitable development. On receiving the payments, marginalised individuals began exercising agency within their households and the community.

5.       There were also economic spin-offs as villagers worked harder than before, with a number of adults engaging in two economic activities (own-account farming with small business on the side).

6.       Indebtedness decreased as the propensity to save increased over the pilot period.

Doubts over welfare payments:

The results dispel doubts such as :

1.       whether ungrateful welfare abusers will buy alcohol with their new-found income,

2.       if welfare payments are dignity-destroying and other such apprehensions often expressed as ‘don’t just give them fish; teach them how to fish’.

The feasibility quotient:

  • If a basic income is introduced in addition to the two statutory income transfer schemes for food and wage jobs already in place, the government’s deficit will balloon.
  • The Food Security Act already provides for statutory income transfers.
  • A basic income scheme will be administratively easier and cleaner than the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS): putting money into select Aadhaar-seeded Jan-Dhan bank accounts ought to be relatively simple.
  • Both will have to be reformed if the plan is to guarantee all three: food, basic income and wage jobs.
  • A new universal basic income for all Indians won’t be affordable unless it replaces the whole multitude of programmes and subsidies currently in place.
  • That would rid the welfare system of all the existing overlaps and gaps, but the simplicity will extract huge political capital.
  • More feasible is a basic income targeted at the most deprived, using the socio-economic census.
  • Creating sustainable funding sources for it, whether by way of new taxes or by streamlining entrenched subsidies and incentives, will still be a challenge. One worth taking up, for it will also be an opportunity to reinvent the welfare system.




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