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MAINS Q/A 25-05-2018

Q1.Virtue theory of ethics is one of the oldest normative traditions in Western philosophy, having its roots in ancient Greek civilization. Discuss.

Normative ethics involves arriving at moral standards that regulate right and wrong conduct. In a sense, it is a search for an ideal litmus test of proper behaviour. The Golden Rule is a classic example of a normative principle:

We should do to others what we would want others to do to us.

  • The Golden Rule is an example of a normative theory that establishes a single principle against which we judge all actions. Other normative theories focus on a set of foundational principles, or a set of good character traits.
  • Virtue ethics, places less emphasis on learning rules, and instead stresses the importance of developing good habits of character, such as benevolence .Plato emphasized four virtues in particular, which were later called cardinal virtues: wisdom, courage, temperance and justice.
  • In addition to advocating good habits of character, virtue theorists hold that we should avoid acquiring bad character traits, or vices, such as cowardice, insensibility, injustice, and vanity.
  • Aristotle argued that virtues are good habits that we acquire, which regulate our emotions. For example, in response to my natural feelings of fear, I should develop the virtue of courage which allows me to be firm when facing danger.

Interest in virtue theory continued through the middle ages and declined in the 19thcentury with the rise of alternative moral theories below. In the mid 20th century virtue theory received special attention from philosophers who believed that more recent ethical theories were misguided for focusing too heavily on rules and actions, rather than on virtuous character traits. Alasdaire MacIntyre (1984) defended the central role of virtues in moral theory and argued that virtues are grounded in and emerge from within social traditions.

 

Q2. The ordinance making power of the legislature should be used sparingly and with due respect to the constitution. Discuss.

In a parliamentary democracy such as India, the ordinance promulgation power is supposed to be used as an exception and not as a matter of course. The constitutional scheme exists to ensure accountability of the political executive to the elected legislature.

Ordinance making in India:-

  • Articles 123 and 213 of the Constitution:-
  • These state that an ordinance may be promulgated to meet a certain circumstance, but must be laid before the legislature in question, and will expire within six weeks of the legislature being convened.
  • An ordinance is thus, by definition, limited in time, and can cease to have effect even earlier, if the legislature passes a resolution disapproving the ordinance.

Misuse of ordinance making power:-

  • The very nature of the ordinance might mean that a frequent resort to it is only self-defeating

Excessively used:-

  • Following the washout of the second half of the budget session, three ordinances have recently been promulgated by the President.
  • First was the Criminal Law (Amendment) Ordinance, 2018 ,followed by the Fugitive Economic Offenders Ordinance, 2018,amendments to the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (henceforth Commercial Courts Act) were made through an ordinance. .

Misuse of ordinance power has been questioned:-

  • Supreme Court acted on concerns about the manner in which the ordinance promulgating power has been used at the state level.
  • First, in limiting the manner in which ordinances may be repromulgated and second, in ensuring that ordinances cease to be in effect, if they are not placed before the legislature.
  • Without imposing any substantive limits on when an ordinance may be promulgated, the Supreme Court has restrained the government’s ordinance-making power (though somewhat belatedly).

Self limiting:-

  • Validity and legality of actions taken on the basis of an ordinance will be in limbo, unless subsequent legislation is passed to the same effect by the legislature.
  • Overuse of ordinances goes fundamentally against two core tenets of the rule of law, stability and consistency

Self defeating due to absence of Parliamentary scrutiny and feedback :-

  • Governments may favour the “ordinance route” because it makes for good optics or helps them avoid the difficult task of political negotiation in Lok sabha and Rajya sabha that is part and parcel of lawmaking. That, however, is a self-defeating exercise.
  • Taking the ordinance route may only raise suspicions about the government’s motives and harden the opposition’s stand towards a measure, as was seen with the proposed amendments to the land acquisition law.
  • The executive’s power to issue ordinances, therefore, goes against separation of powers; for it acts neither as a check nor as a balance on the authority exercised by the other branches of government.
  • Ordinances passed in haste are often ill-designed
  • Why ordinance making is needed?
  • It ought to be Power to legislate when Parliament is not in session.
  • When legislature is not in session: the President can only promulgate when either of the House of Parliament is not in session.

Immediate action is needed:

  • The President though has the power of promulgating the ordinances but same cannot be done unless he is satisfied that there are circumstances that require him to take immediate action.
  • Parliament should approve:after the ordinance has been passed it is required to be approved by the parliament within six weeks of reassembling. The same will cease to operate if disapproved by either House.

During emergency

Way forward:-

Even if there is broad consensus that a certain legislative measure is needed, parliamentary scrutiny is valuable in and of itself.

Reference to the standing committee and open debate about the merits of a bill and its drafting are likely to address shortcomings or oversights in the law.

Ordinances are not immune from judicial challenge:-

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.

 

 

Q3. The arbitrary and indiscriminate use of the Public Safety Act, 1978 to stifle political dissent shows a blatant disregard for the Constitution and the right to personal liberty. Critically comment.

Public safety act 1978:

PSA allows the police to take a person into preventive detention without a trial or the actual commission of an offence.

The grounds on which this can be done include preventing a person from acting in a manner prejudicial to the maintenance of public order or security of the state.

In cases in which the conduct is said to be prejudicial to the maintenance of public order, the period of detention is three months, extendable up to one year, while in cases involving the security of the state it is six months, extendable up to two years.

The act is still applied in light of

The national security of the state

Keeping in mind the law and order situation in Kashmir

To prevent and handle terrorism

Needed in case of emergency especially during undeclared strikes and protests etc.

Criticism:-

The act provides for extremely vague offences to be covered and is, thus, conducive to misuse. Acting in a manner prejudicial to the maintenance of public order has been defined in extremely broad terms.

Supreme court criticized:-

This law has been described as lawless by the Supreme Court (A K Roy v Union of India1982) and has been excessively applied with many preventive detention orders .

Affects personal liberty:-

The arbitrary nature of the use of the PSA has led to a chilling effect.

Nobody knows what conduct attracts detention under the PSA or who may be the next target. It has been used against political leaders, human rights activists, protesters, and even common criminals.

Moreover, the uncertainty that comes along with a PSA order is such that it affects not only the detainee, but his entire family.

In 2011, Amnesty International released a report about the PSA, highlighting its misuse to stifle political dissent.

Scope for arbitrary detentions under the PSA is tremendous:-

On an average, each person has been identified as having committed offences under three first information reports (FIRs). However, most of these FIRs are “open FIRs.”

Against constitution:-

Lack of safeguards:-

Modern criminal justice systems rely on the presumption of innocence, that is, a person is innocent until proven otherwise through a free and fair trial. In this act Procedural safeguards to ensure that innocents are not incarcerated, are absent.

The most important safeguard is the fact that the police cannot detain a person under the act itself. Under the act, this power is vested with the district magistrate and divisional commissioner. However, this safeguard has proven highly ineffective as magistrates mechanically approve most orders.

In the case of the PSA, all criminals, no matter how minor the offence, are deprived of these safeguards because of such broad and vague definitions

 

 

Q4. What are the reasons of the failure of the river rejuvenation programmes in india?

River rejuvenation programs and their failure:-

With deteriorating quality of water in Ganga and Yamuna in 1985, the Ganga Action Plan (GAP) Phase I, followed by GAP Phase II, starting in 1993.

Similarly, the Yamuna Action Plan (YAP) was also started in 1993 as a bilateral project with the Japanese Government.

In 2009, the National Ganga River Basin Authority (NGRBA) with the Prime Minister as its Chairman, was formed.

The total expenditure till March 2014 was Rs986.34 crore. In July, 2014, the Modi Government launched the Namami Gange Project with more or less the same purpose as the GAP has served.

Government  has  focussed on cleaning the Ganges but there has been little progress so far on a project which has defeated successive administrations, despite substantial funding.

Declaration of the Ganga and the Yamuna as living entities signals a renewed effort to rescue our rivers.

Reasons for failure:-

River water disputes like Mahadayi dispute are turned into a political issue.

There are different municipal agencies and government bodies, often working at cross purposes, who are supposed to be working to save rivers.

Yamuna River Project has not addressed the issue of environmental flow which is crucial to save a river.

It does not tell the action plans for rejuvenation of the river and its riparian ecosystem that generate ecological services including the storage of flood water, enhanced recharging of ground water, flood regulation, treatment of sewage before and after discharging into river.

Straightening of rivers is entirely opposed to their ecological integrity and is environmentally destructive and downright dangerous to the river banks and riverine population.

There is no understanding of river hydrology and floodplains, which form diverse habitats for flora and fauna. Here lies the root of the problem,

Water in India is a state government subject and water laws are state-based. The state has the constitutional power to make laws, to implement and regulate water supplies, irrigation and canals, drainage and embankments, water storage and hydropower. This creates conflicts between centre and state.

There is nothing in the constitution or law that shows an understanding of what a river is, what services it provides or the conservation of rivers

There is no legal protection for rivers in India. This is the reason various legal and institutional measures such as the Water Pollution Act, CPCB, the state pollution control boards, Ganga Action Plan, Yamuna Action Plan and the National River Conservation Plan have yielded no results.

Successive governments have ignored river protection and a proposal for a river regulation zone has been gathering dust for over a decade.

Government resolution (GR) mentions desilting, straightening and deepening of rivers. This is not river rejuvenation.

Government is just focusing on pollution and trying to find an engineering solution while ignoring the core issue, the ecological problem.

Open defecation in the rivers

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