SHIKHAR MAINS 2022- DAY 39 Model Answer English
Q1. 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?
Approach:
• Write with reference to the People's Representation Act 1951 in the introduction.
• Write a suitable conclusion in the main section while writing about the disqualifications in relation to the membership of Parliament and State Legislatures.
Answer:
The Representation of the People Act, 1951 provides for the conduct of elections to the Houses of Parliament and the Houses of the State Legislature, provisions for qualifications and disqualifications for membership and the settlement of disputes in respect of such elections.
Chapter III of Part II of the Representation of the People Act, 1951 provides for 8 different grounds for disqualification in respect of membership of Parliament and State Legislatures-
1. Section 8(1) provides for disqualification on conviction for certain offences. A person convicted of an offense punishable under the following offenses shall be declared disqualified: Offenses under Indian Penal Code 1860 - Section 153A, Section 171E & F, Section 498A, Foreign Exchange (Regulation) Act, 1973, Terrorist and Subversive Activities (Prevention) Act, 1987, Sati (Prevention) Act, 1987; Prevention of Corruption Act, 1988; Prevention of Terrorism Act, 2002 etc.
2. Under section 8(2), any person who has been convicted of hoarding or profiteering, adulteration of food articles or drugs, or contravention of any law relating to the Dowry Prohibition Act, 1961 and for a period of not less than 6 months has been sentenced to imprisonment.
3. Under section 8(3), any person who has been convicted of any offense {other than any offense mentioned in section 8(1) or section 8(2)} and shall be punished with imprisonment of not less than two years has been sentenced. That person shall be declared to be disqualified from the date of such conviction and shall be declared to be disqualified for a further period of six years from the date of his release.
4. Section 8A provides for disqualification on grounds of corrupt practice i.e., a person convicted of certain corrupt practices referred to in section 123 of the Representation of the People Act, 1951 shall be declared disqualified. Such disqualification is subject to the condition that the charges are presented before the High Court by way of an election petition and submitted to the President in the form of an order of the High Court. Thereafter, the President after obtaining the opinion of the Election Commission decides about the disqualification and the period of such disqualification.
5. Section 9 provides that any person who has previously held office under the Government of India or under the Government of a State and has been dismissed by reason of corruption or for expression to the State, shall be liable to such dismissal shall be declared disqualified for a period of five years from that date.
6. Section 9A provides for disqualification for contracts, etc., entered into with Government, that is to say, a person shall be disqualified if in the course of his business with the appropriate Government for the supply of goods or for any contract has been entered into for the performance of the work.
7. Section 10 provides for disqualification for office under a Government company, that is to say, a person shall be disqualified if and unless he (other than a co-operative society) holds a company or corporation in the capital of which the appropriate Government holds not less than twenty-five per cent is the managing agent, manager or secretary.
8. Section 10A: Disqualification for failure to file account of election expenses.
However, section 11 of the Representation of the People Act, 1951 provides that the Election Commission may, in addition to section 8A, abolish any of the above disqualifications or reduce the period of any such disqualification.
Elections are the lifeline of any democracy. The strength of electoral processes determines the fate of the nation. Timely reforms in the election process as per the changing needs of the society and strong review of the judiciary have helped in conducting free and fair elections till date.
Q2. जनहित याचिका उन लोगों के लिए न्याय पाने का एक प्रभावी तरीका है जो इसे वहन नहीं कर सकते। विचार कीजिए। जनहित याचिका के कार्यान्वयन से जुड़ी सीमाओं का समालोचनात्मक परीक्षण कीजिए।
PILs are an effective way to seek justice for those who cannot afford it. Discuss. Critically examine the Limitations associated with the implementation of PIL.
Approach:
• Write about the public interest litigation in the introduction.
• In the body, write Public Interest Litigation as an effective way to get justice for those who cannot afford it.
• Finally write a conclusion critically examining the limitations associated with the implementation of PILs.
Answer:
Public interest litigation was started in the United States in the 1960s. It was started in India in the 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 to do judicial work in the interest of the society or community.
PIL is also known as social action petition, social interest petition, and class action petition.
The vision of establishing the rule of law, protecting 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 under a positive attitude.
• PIL is a humane way of providing legal aid to the poor and marginalized population. 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 or neglected children.
• Exploitation of workers or violation of labour laws or non-payment of minimum wages.
• Petitions against atrocities on women (especially in cases like bride-torture, dowry-burning, rape, murder, kidnapping etc.).
• Complaints of harassment filed from prisons, applications for premature release and release after completing 14 years, death in prison, transfer, release or release on personal bonds, speedy trial in the forms of Fundamental Rights.
• Petitions regarding non-filing of cases by police, police harassment and death in police custody, etc.
• Petitions regarding complaints of harassment by co-villagers of villagers, police harassment of Scheduled Castes and Scheduled Tribes and Economically Weaker Sections.
• Petitions related to environment and ecology, medicine, food adulteration petitions, heritage and culture, ancient artefacts, conservation of forest and wildlife and other matters of public importance.
• Petitions of riot victims and petitions related to family pension.
Problems related to implementation of PIL: -
• Unprecedented increase in the workload of the Higher Courts: - Public Interest Litigations have affected the normal judicial functioning of the Courts, leading to an increase in the number of cases pending before the Supreme Court and the High Courts, as a result of which law and order has come to a standstill.
• Misuse of Process: - PILs have been heavily misused and have taken the form of 'private insignificant interest litigation'. This has led to an increase in insignificant and unnecessary petitions before the Court.
• Conflict with other subsidiary organs of the government: - One of the major criticisms of PILs is that it is encroaching upon the jurisdiction of the judiciary, executive and legislature. Over the years, the dimension of public interest litigation working for social purposes has weakened and has been eclipsed by a different type of "public cause litigation" in the courts. In this type of litigation, the intervention of the court is not sought for enforcement of the rights of the deprived or poor sections of the society, but only to rectify the acts or omissions of executive or public officials or departments of government or public bodies. Is performed.
Steps taken to check misuse of PILs:
• The Supreme Court has warned that the court will have the power to give exemplary compensation punishment to the parties misusing the PIL. In addition, a party who files a Public Interest Litigation in the Court must, before the Court proceeds further with the matter, establishes before the Court of first instance that the matter is of public interest.
• The Court has also started constitution of Inquiry Committees to examine the PILs filed and to present the report before the Court explaining the suitability of the case, so as to save valuable time of the Court. In this regard, Nyaya Mitra of Court (Amicus Curiae) has also been taking help. The Supreme Court, while hearing a PIL, also cautioned the High Courts that it should not interfere in the policy issues of the executive.
• The Supreme Court has framed guidelines defining the procedure and issues as to which litigation can be admitted as a PIL.
By accepting the cases of valid public interest litigation, a balance needs to be struck by allowing legitimate PIL cases and rejecting PILs based on vested interests. One way to achieve this objective may be to limit PILs primarily to those cases where any kind of incapacity is an impediment to the attainment of justice. Another useful tool can be to provide financial disincentive to people who file PILs to serve vested interests.
