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GS Paper 2 Governance – Test

1. Alternative Dispute Resolution (ADR) mechanisms, though successful in parts, have failed to take off on a larger scale in India. Analyse. Also, suggest measures that can be adopted to strengthen the ADR mechanisms.

Answer

Alternative Dispute Resolution (ADR) mechanisms, namely arbitration, mediation, conciliation and Lok Adalat, are seen as a solution to the problems plaguing India’s traditional court system. ADR mechanisms are based on mutual understanding between the parties who want a win-win solution and the settlement is arrived at as expeditiously as possible. This not only reduces the burden of the Judiciary but also helps in reducing the cost and time of resolving disputes.

Further, the principle of natural justice is adopted rather than cumbersome procedural laws. In this regard, the Lok Adalats have been successful in resolving a huge number of pending cases, especially in rural India. The importance of mediation, especially in commercial matters, was also highlighted by the Supreme Court in Afcons Infrastructure v. Cherian Varkey Construction (2010).

However, despite their effectiveness, ADR mechanisms have not taken off to the desired levels owing to their various shortcomings. These include:

• Limited reach: ADR institutions are not evenly distributed and have a limited reach, especially in the remote areas of the country, which makes it difficult for the masses to opt for ADR. It also becomes difficult in terms of finding ADR practitioners such as arbitrators, conciliators, mediators etc.
• Lack of awareness among masses: Despite the fact that the Indian legal system encourages dispute settlements through the ADR mechanisms, people have not yet embraced it whole- heartedly because they are not aware of the mechanisms and procedures involved.
• Limited capacity: Due to lack of certainty regarding enforcement, the demand for mediation is low and consequently, the capacity of mediators and mediation centres has been slow to build up.
• Practical difficulties: There is preference for ad-hoc arbitration over institutional arbitration, which increases costs and makes the process more court-like in India. In addition, practical difficulties in the appointment of arbitrators for lakhs of small value disputes has led to malpractices in the appointment of arbitrators.
• Technology laggard: The lack of digital infrastructure and online delivery systems is limiting the efficiency and larger success of ADR. There is a need for capacity development and affordable online arbitration.
• Procedures not codified: There is no strict qualification criterion for the appointment of the arbitrator, conciliator, mediator or negotiator and the only parent Act governing arbitration in India is the Arbitration and Conciliation Act, 1996.
• Lack of codification increases: the chances of passing of unreasonable awards or unsatisfactory mediation or negotiation settlement. There is also no guarantee towards final resolution unlike the traditional court system.

Measures that can be adopted to strengthen ADR mechanisms in India are

• Parallel ADR institutions must be extended to all parts of the country in the same manner in which the courts of law have been established.
• Each court must have an Arbitration and Mediation Centre to ensure that the disputes capable of being solved through any of the ADR methods are first taken over by the ADR forums.
• A code of conduct or code of ethics should be developed for arbitrators, mediators and conciliators for their non-biased performance.
• The Arbitration and Meditation Centres mostly cater to the commercial disputes. There is a need to establish new private bodies for non-commercial disputes like family disputes.
• The establishment, empowerment and legal recognition of ADR bodies in the country would be of no use unless the people are aware as well as keen to choose ADR over the courts. Thus, there should be regular awareness programmes and dissemination of information regarding ADR forums.
• Online dispute resolution holds potential to ensure that arbitration as a mode of dispute resolution scales up, especially for low to medium value disputes.
• Lessons from the Italian ‘opt-out model’ of mediation, which has been successful in multiple countries, can be adopted in India.

Until ADR emerges as a parallel mechanism to the legal system, measures must be taken to encourage voluntary use of ADR mechanisms. A holistic approach involving all the stakeholders is the way forward to achieving the required change in the alternate dispute mechanism processes.

GS Paper 2 Indian Polity

1. While the Representation of the People Act (RPA), 1951 places limitations on election funding, there is rampant misuse of money power in election campaigns. In this context, discuss the reforms required in election funding in India.

Answer

Election funding in India is broadly governed by the laws like Representation of People Act (RPA), 1951; Conduct of Elections Rules, 1961; Foreign Contributions Regulation Act, 1976; Income Tax Act, 1961; Indian Penal Code, 1860 etc.

RPA 1951 puts following types of limitations for election funding:

• Imposes a ceiling on the election expenses of a candidate from the date of nomination to the date of the declaration of results.
• Governs the disclosure of expenditure by every candidate.
• Lays down the limits on contributions to political parties.
• Penalties for candidates such as disqualification and loss of tax exemptions for political parties and fines and imprisonment for companies.
• However, experience shows that still political parties lack transparency with regard to election funding.
• 70 percent of political funding is from unknown sources. This secrecy also results in rampant misuse of money in elections:
• The Lok Sabha, 2019 elections have been termed as the ‘most expensive election ever, anywhere’ with an estimated Rs 100 crore spent in each Lok Sabha constituency and an approximate Rs 700 spent per vote.
• The total seizure reported by the ECI at the end of elections was a whopping Rs 3475.76 crore with drugs/narcotics topping the list followed by precious metals, cash, liquor and other items or freebies.
• Between FY 2012-13 and 2018-19, donations from corporates to national parties increased by 974%. It has been argued that increased election spending is the root of various other issues, like criminalization of politics, use of muscle power in elections, rise of illegitimate expenditure on vote buying, etc.; thus hampering free and fair elections in the country.

Reforms are needed in election funding.

• Expenses and contribution: A cap needs to be put on expenditure by political parties through strict enforcement of Section 77 of the RPA.
• Audit: Accounts of political parties must be audited in accordance with the guidelines of the Institute of Chartered Accountants of India. This is at the heart of public supervision of political finance and requires a strict implementation.
• Penalties: The ECI’s recommendation that tax exemption be given only to those parties that have won seats in parliamentary or assemblies should be implemented.
• If a candidate does not declare his or her election expenses, Section 10A of the RPA should be amended to increase the period of his or her disqualification from three years to five years.
• Similar penalties need to be imposed on political parties for failure to lodge accounts of election expenses.
• Electoral trusts: The RPA should be amended to provide for regulating electoral trusts, which are penalized only with a mild amount on failing to submit the annual reports of contributions to the ECI despite getting tax relief on their donations to political parties.
• Preventing anonymous donations: The present law, RPA, 1951, does not stop political parties from accepting nameless donations below a certain amount. The Election Commission of India’s suggestion to make the law stricter by lowering the cap of anonymous donations still further should be implemented.
• State Funding of Elections: India can explore the option of state funding of elections to curb use of black money and provide a level playing field for parties and candidates and reduce the dependency on corporate or private money.

Transparent funding sources as well as expenditure by political parties is a must to sustain the democratic traditions of India in letter as well as in spirit. In this regard, the aforementioned measures need to be implemented in an urgent manner.

GS Paper 2 Indian Polity

1. There are arguments that the current First-Past-The-Post (FPTP) electoral system must be replaced by the Proportional Representation (PR) electoral system in India. Critically evaluate the statement.

Answer

• In the FPTP system, a candidate is elected to a state assembly or to the national parliament—in an election overseen by a competent authority—if that person receives even one popular vote more than the runner-up. It is argued that this system creates an anomaly because the interests of the majority of the electorate do not find expression and representation in the elected body.
• It is currently being used to elect members of the House of Commons in the UK, both chambers of the US Congress and the lower houses in both Canada and India. As an alternative to the FPTP system, many experts have warranted for the Proportional Representation (PR) system for India.
• The PR system seeks to create a representative body that reflects the overall distribution of public support for each political party. It is used in the elections of the President, the Vice President in India, Members of Rajya Sabha and Members of State Legislative Councils.

Arguments in favor of the PR system

• Better representation: While the FPTP system tends to reward the strongest party disproportionately and, as a corollary, handicap weaker parties, the PR System seeks to overcome the disproportionalities that result from majority and plurality formulas, and to create a representative body that reflects the distribution of opinion within the electorate.
• More scope for smaller parties: While the FPTP system reduces the opposition to the bare minimum, in the PR System representation happens in proportion to the votes a particular party gets. Thus, it provides scope for representation of smaller parties in the government.
• Encourages party-based voting: While the FPTP system has been criticized to favor caste, religion, ethnicity and regional politics, the PR system enables a voter to overcome these factors and vote for a party rather than a candidate.

Arguments in favor of the FPTP system

• Simplicity: While the PR system is a complicated method with one voter required to exercise at least two votes, it is comparatively very simple to vote in the FPTP system.
• Voter Connect: In the PR system, the voter votes for the party which doesn’t allow voters to connect with the candidates. This connection is ensured in the FPTP system, where the voter is familiar with the candidate, he/she is voting for.
• Stability: It has been generally observed that through the PR system, mostly coalition forms of government are formed, which tends to be less stable in comparison to majority governments, which have a higher probability of formation in the FPTP system, and which are more stable.

Therefore, both the systems have their own merits and demerits. Some other countries also offer an experience of a hybrid pattern combining elements of both these election systems.

 GS Paper 2 Governance

1. Simplification of laws is a prerequisite of good governance. In light of this, discuss the impact of ambiguity in laws and suggest some steps that can be taken to reduce this ambiguity.

Answer

For good governance, it is important that legal frameworks are clear, fair and enforced impartially. Ambiguity occurs where there is a lack of clarity or when there is uncertainty about the application of a law.

This ambiguity in laws has following implications

Increased litigation: Due to lack of understanding of laws, there is increase in pendency of cases which further overburdens the courts. In fact, when matters are less clear and more difficult to predict, parties’ expectations over the outcome of the adjudication are more likely to diverge leading to increase in the litigation rate.

Lack of clarity: Ambiguity in laws leads to myriad interpretations leading to confusion and lack of clarity in provisions of laws. For instance, In Anti-conversion laws, terms used in such laws like force, fraud, allurement etc. are loosely defined, leaving wide scope of interpretation.

Financial losses: Society may incur relevant costs due to the uncertainty of legal entitlements and bear direct and indirect expenses associated with the litigation process. Further, conflicting interpretations of laws on the same subject hampers ease of doing business and discourages foreign investment in the country.

Delayed investigation: Ambiguity in laws leads to delay in investigation of the case or delay in implementation of law.

Misuse of laws: Laws are prone to misuse due to lack of a clear definition or use of vague terms. For example, if there are different definitions of the minimum age of child prescribed under different laws, it becomes easier for employers to employ children.

In light of these issues, the following measures can be taken to reduce this ambiguity in laws:

• Repeal archaic laws: Colonial legacy in laws such as IPC, Evidence act, etc. needs to be eradicated and updated as per the needs of 21st century.
• Well defined terms: Clearly define ambiguous terms so that misuse of law, and misinterpretation can be avoided and the ultimate aim of good governance can be achieved.
• Address evolving issues: Contemporary issues like Data privacy, micro-plastic pollution etc. need to be taken into cognizance and laws should be aimed at protecting and addressing emerging threats.
• Functionality: Laws should clearly outline the roles and responsibilities of ministries/departments to avoid conflict and must be equipped to address exigencies. For e.g., some have argued that the Disaster Management Act, Epidemic Act, used during the Covid pandemic were not fully equipped to deal with the situation arising out of the pandemic.
• Public interaction: Tools like pre-legislative scrutiny, engaging with stakeholders, parliamentary committees should be incorporated at all stages of formulation of law to ensure that aspirations of all sections of society are met.

Bringing about clarity on interpretation of statutes: Some argue that paying attention to the intention of the legislature or its purpose behind enacting laws can help in solving the problem of many of the uncertainties and ambiguities that arise in law. However, there are strong opposing arguments in support of a strict textual reading of the law too. There is an urgent need to ensure that laws and legal structures keep pace and are reflective and responsive to the growing needs and challenges of the time.