At a time when we are celebrating the silver jubilee of 1991 economic reforms, we now have hullabaloo about India’s biggest tax reform – Goods and Services Tax (GST) Bill that has recently been passed by the Parliament and also got. GST subsumes most of the taxes which include Central indirect taxes like Service Tax, Additional Customs Duty, Special Additional Customs Duty, Central Excise Duty, Cess and Surcharge, and Countervailing Duty, and Sate indirect taxes such as Sales Tax, Value Added Tax (VAT), Tax on Inter-state Sale, Local Tax, Entertainment Tax, Purchase Tax, Mandi Tax/Other State-Specific Local Levies, Luxury Tax, Taxes on Lottery and Betting, and Octroi/Entry Tax. . The GST is expected to usher in a uniform tax regime across India through an expansion of the base of each into the other’s territory. This is why a constitutional amendment was necessary — to give concurrent powers to both the States and the Centre to make laws on the taxation of goods as well as services.
And one of the reasons it has been objected that it’ll usurp over the tax-levying powers of the State and thus, making a serious threat to federalism which forms the essence of the Basic structure of the Constitution. Many of the world’s nation states are Federal systems in which there is a sharing of powers, including the power to tax, between a central government and lower-tier, provincial or state governments. However, other nations are unitary with most or all power at the centre.
Federalism constitutes a complex governmental mechanism for governance of a country. It has been evolved to bind into one political union several autonomous, distinct, separate and disparate political entities or administrative units. It seeks to reconcile unity with multiplicity, centralisation with decentralisation and nationalism with localism. However, Indian federal system is not same as other federal countries like U.S.A, Canada, Switzerland or Australia and is often called quasi-federal. It provides for a dual system of governance with a powerful Central government/Union. Even during emergency, Indian Constitution becomes unitary in character and in case of conflict between union and state law, Union law prevails. Not only this, but we have a single judicial system and there is only one Constitution of India that is sovereign and Supreme.
Idea behind discussion of the federal nature of Indian Constitution is that when it is not truly federal, how can federalism be then threatened? The goal of Constitution as mentioned in the preamble has never been to maintain the concrete federal structure but to constitute into a Sovereign, Socialist, Secular, Democratic, Republic.
How GST impacts the federal structure?
The GST regime intends to subsume most indirect taxes under a single taxation regime. GST is a value added tax levied across goods and services.
It has been argued over and over again that it will subsume State Value Added Tax/Sales Tax, Entertainment Tax (other than the tax levied by the local bodies), Central Sales Tax (levied by the Centre and collected by the States), Octroi and Entry tax, Purchase Tax, Luxury tax, Taxes on lottery, betting and gambling; and State cesses and surcharges in so far as they relate to supply of goods and services. In this way, even the local bodies will be affected by the GST and thus, it allegedly attacks on the federal structure of our country.
But actually it will broaden the tax base, increase tax compliance, and reduce economic distortions caused by inter-state variations in taxes. There is no doubt that the practise of levying excise duties by the Centre, sales taxes by the States and octroi by local bodies has made the tax system absolutely non-Transparent.
In such a tax system, the incidence of taxes on different commodities remains unknown and repeated taxation of the same commodities by different levels of government creates broader wedges between producer and consumer prices. This is particularly true as the Centre levies the tax at the manufacturing stage and the States levy the sales tax predominantly at the first point of sale – on the excise duty paid value. Octroi tax is check-post based and collected at the discretion of the personnel managing the check-posts and has been a very efficient of corruption and thus a major obstruction to free movement of goods across the country.
The proponents of so-called federalism must answer whether curbing corruption and making the taxation transparent will weaken the States when the economy as a whole will progress? The argument against GST curtailing federalism is about the political autonomy of the States.
Even the political ego of the States remains at place with GST. Owing to our federal structure, GST is dual, levied and managed by different administrations. Centre would levy and collect Central Goods and Services Tax (CGST), and States would levy and collect the State Goods and Services Tax (SGST) on all transactions within a State. And the rates for CGST and SGST will be administered by the GST council which is neither an agent of States nor of Centre.
Not only this, but also the loss of revenue will be compensated to the States for next 5 years. Alcoholic liquor for human consumption is exempt from GST and some certain petroleum products are also exempt till the council decides on them and no doubt can be posed to the fact that liquor sales have always led to largest revenue collection by States. Along with this, the capacity of States to generate revenue related to non-goods and non-services cannot be underestimated.
The GST Council will consist of the Union Finance Minister (as Chairman), the Union Minister of State in charge of Revenue or Finance, and the Minister in charge of Finance or Taxation or any other Minister, nominated by each state government thus, emphasising the fact that States’ say and opinions will be catered to and federal essence of the country has been duly preserved.
All decisions of the GST Council will be made by three-fourth majority of the votes cast; the Centre shall have one-third of the votes cast, and the States together shall have two-third of the votes cast.
The GST council with representatives from both Centre as well as the States is not a body of the Union but an independent body in itself.
At the same time, when we move to a GST regime in a federal set-up like ours, some curtailment of the State’s political freedom is inevitable though economic freedom and development is nowhere to be hampered rather, economy of the States as well as of the Nation as a whole will be strengthened. Also in the Bill, it is no where mentioned how the GST will function and on what basis it’ll make its decisions regarding exemptions for States and distribute the revenue collected but at the same time, presence of States’ representatives in the Council assures us that the needs of the individual States will definitely be looked after.
Further, both, Parliament and State legislatures will have the power to make laws on the taxation of goods and services. A law made by Parliament in relation to GST will not override a state law on GST. This again emphasises on the need of not worrying about federalism being undermined.
Though the central government will have the exclusive power to levy and collect GST in the course of interstate trade or commerce, or imports known as Integrated GST (IGST), but based on the recommendations of the GST Council which is an independent body.
Learning from other Nations
The emergence of the European Economic Union has clearly demonstrated the advantages of having a large common market while preserving the distinct regional identities.
In Australia, the problem arising from such concurrency on taxes has been minimised as all major taxes have been broadened and are assigned to their Commonwealth government.
In Canada, the Federal and provincial governments have concurrent powers to levy income taxes, but cooperation and coordination among the two levels of government have ensured that the tax base adopted by the States and Federal government, by and large, is uniform.
In the U.S.A., in a majority of the States the tax bases are not identical to that of the Federal government, but in respect of both individual and corporate income taxes, the differences are negligible thus causing no major distortions.
In Germany, income taxes, customs and excises and all other significant business taxes like the value added tax are levied by the Federal government, but at the same time, they have an elaborate and sound system of sharing of taxes between federal and state governments and thus, ensuring vertical harmonization.
What is to be learnt from the experience of these developed federations is that they do not allow their taxes to be overlapped and have coordinated amongst both levels of government and thereby, achieving the vertical harmonization.
That is what GST seeks to achieve, a harmonized system of taxation, with no overlapping that is, no cascading effect of taxes. For overall development of the economy, it is important to broaden the consumer base and increase their purchasing power that being the only way to increase production as well in the country, and lesser burden of taxes on the consumer will definitely help us in achieving the goal. The true essence of federalism is in Co-operative Federalism.
Overlapping taxes can rob the tax system of simplicity and transparency, alter relative prices in unintended ways, make tax crediting on exports difficult, cause inter-state tax competition and tax exportation to result in inequitable resource flows
The main aim of fiscal federalism enshrined in Article 301 of the Constitution is the free and unified movement of trade, commerce and intercourse throughput the territory of India. Articles 268 and 269 provide for the levy and collection of certain taxes by the Centre, but the revenues are to be entirely assigned to the States and that is what GST has aimed at. The pith and substance of fiscal federalism lies in cooperation, to coordinate with the policies of all levels of government.
Aim is not to promote competition, but to bring equality among the States which can be brought in by reforms like GST focussing at avoiding wasteful competition between States. For instance, many States have become manufacturing-hubs by easing their taxation policies and decreasing effective tax rates thus; attracting more and more investments and those which could not lagged behind. However, the introduction of a unified tax system will discourage this practise of ‘beggar thy neighbour’. Thus, chances are that it may lead to redistribution of manufacturing activities amongst the States promoting equality among them and ultimately, preserving as well as promoting the federalism in India.
Taxation is a sovereign function and is divided into two main parts- imposition and collection. As per GST, the Union collects the tax but will be redistributed to the States as per the recommendations of the council. What is important here is how the revenue is used and not who is collecting it. That is where harmonization and co-ordination is needed.
GST may take away freedom of individual states to levy taxes as per its own need and it is consumer oriented tax, therefore states with higher production will lose tax thus, being alleged of threatening the federal structure.
However, this is not so because for a fastest developing economy like ours, need of a clear and transparent tax structure is more important which must redistribute its revenues so efficiently that demands of all the persons may be fulfilled at the micro-economic level because, it is We-the people of India and not the States, who have given to ourselves this Constitution. Higher the development, mature the economy, clearer will be the taxation system and that is where India is heading to, towards development.
No doubt that political autonomy of States is being taken away partially as the States themselves will not be able to decide as to where to use their revenue but we can definitely not make an omelette without breaking a few eggs. Also, when a reform comes in, it is always opposed like the Liberalisation Reforms too were cried over but ultimately yielded the best results. Learning from past, we must give a chance to GST to function, GST council to be formed and then, the results will wholly depend upon how efficiently the council functions and how carefully the new laws are implemented because it has often been seen that good laws fail due improper implementation.
GST is a great example of Co-operative federalism and it must be hailed instead of opposing for it opens the path of development for the country. Also, we need to wait to see how it is implemented.
 https://www.law.berkeley.edu/files/sho_sato_tax_conf_web_paper–inman-rubinfeld(1).pdf, Why Federalism Matters: Implications for Tax Policy Robert P. Inman and Daniel L. Rubinfeld1, Proceedings from the 2009 Sho Sato Conference on Tax Law
 On Federalism generally see: DICEY, LAW OF THE CONSTITUTION, Ch. 3, 138 et seq. (1952)
 Professor K.C. Wheare coined this term for Indian Constitution who models American Constitution as truly federal in nature.
Our country today is one of the fastest developing economies, but alas, “justice” still reaches the common men at the slowest pace or unsurprisingly, might not reach at all.
“I have clocked 8,150 days of the prime of my life inside jail. For me, life is over. What you are seeing is a living corpse.” Nisar told The Indian Express, arrested on the charge of five blasts on-board trains on the eve of the first anniversary of Babri demolition in 1994. He was 20 years old then and a B.Sc Pharmacy, 2nd year student who had exam in 15 days and came back after turning 43.
When Mufti Abdul Qaiyum, “the dangerous mastermind of the Akshardham attack” was declared innocent and set free, he stepped into a world that he no longer recognised. During the 11 years Qaiyum spent in prison, his father had died, his family had lost its home and the family members had become outcasts.
That is why we need urgent judicial reforms and these are just few examples which emphasise the veracity of the needs of judicial reforms.
More than the quality of justice delivered, we need to focus on the speed at which the justice is delivered in our country. Indeed, justice delayed is justice denied.
The reasons why these judicial reforms are needed can be enumerated as follows:-
- Huge backlog of cases
At the end of 2013, there were 31,367,915 open cases working their way through the system, from the lowest chambers to the Supreme Court. Out of the 61,300 pending matters as on 28/02/2015, 17,691 matters are up to one year old, and thus arrears (i.e. cases pending more than a year) are only of 43,609 matters as on 28/02/2015 in the Supreme Court.
If the nation’s judges attacked their backlog nonstop—with no breaks for eating or sleeping—and closed 100 cases every hour, it would take more than 35 years to catch up, according to Bloomberg Businessweek calculations.
The following are the table and chart representing the pendency of cases as of September, 2015 in Civil and Criminal cases as per the data of National Judicial Data Grid:-
Following table and chart show the percentage of cases pending for several years based on the data given by National Judicial Data Grid:-
An analysis of National Judicial Data Grid (NJDG) data has revealed that as of today, there are more than 20 million cases pending in the Indian districts courts; two-thirds are criminal cases and one in 10 have been pending for more than 10 years,. Overall pendency of the cases under Subordinate judiciary as per 245th Law Commission Report of 2014 is 10,544,695.
Such a huge backlog of cases delays the justice for common men which is not just prima facie unjust, but also discourages the public to approach judiciary for justice as they are afraid of being trapped in long and cumbersome process.
- Judicial infrastructure (lack of judges, staff and district courts)
Who can forget the historic day of 24th April, 2016 when CJI broke down on a public platform for there has been a prolonged delay in appointment of judges by the government? “In 1987, the requirement was 40,000 judges. From 1987 till now, we have added 25 crores in terms of population. We have grown into one of the fastest growing economies of the world, we are inviting foreign direct investment into the country, we want people to come and make in India, we want people to come and invest in India,” the CJI said.
The calculations of the National Court Management System (NCMS) set up by the Supreme Court, in its report of 2nd May 2012, informs the nation that the number of judges must be increased almost six-fold, from our present sanctioned strength of 16,000 judges, with an additional 80,000. Even before the NCMS report, several Law Commission Reports have advised the creation of five times the number of courts which we currently have. Overall sanctioned strength of judges in lower courts in 2012 was 2623 while working strength was only 1782 as per Report no. 245 of Law Commission of India.
Deficient infrastructure is another hindrance between justice and common man which urgently needs to be looked into.
- Appointment in Higher Judiciary
The concerns related to appointment of judges in High Courts have been addressed in Report no. 230 of the Law Commission in 2009. Another concern raised was in 4th judges case recently regarding the appointment of judges in which the Supreme Court rejected the National Judicial Appointments Commission and at the same time opined that there are flaws in the collegium system which need to be corrected. Collegium system has given rise to an opaque system of appointments to the highest courts of law symbolizing nepotism and corruption. When a judge is promoted from a district court to the High Court or an advocate is appointed as judge, the appointment is in the same State where they have been appointed or practicing till now and higher probability is that they have many acquaintances and relatives at the same place which might lead to biasness and nepotism in further appointments. This problem has been highlighted by the 230th Law Commission Report as well.
- Judicial overreach
It is an era of PILs and we have often seen that Supreme Court is busy deciding on these PILs instead of concentrating on clearing the backlog. Even these PILs have a backlog. In a response to RTI query from a Lucknow based applicant, total number of pending PIL cases as on July 20, 2015, is 1598 out of which 553 writ petitions pertaining to PILs are pending.
Judiciary is over-burdened today, it decides if the administrative schemes of Delhi government like that of Odd-even must be upheld or not, it decides whether the diesel cars in the capital be banned as directed by NGT, needs to decide on Uttarakhand legislative Assembly matter and Speaker’s matter in Arunachal Pradesh and what not.
It is not just that judiciary is itself jumping over the legislative and administrative matters to decide on; instead, it is the inefficiency of other branches of the State that is forcing judiciary to step forward, thus driving away its attention from the problem of backlog.
- Lawyers are no more professionals, but have become Businessmen
It is common on part of the lawyers to seek frequent adjournments and delay the cases to ask for more and more fees from their clients, be it in lower courts or even the apex court. It is no more a noble profession today and has become a money minting business. There is lack of or say, absence of professional ethics. Even the practise of compounding the compoundable cases outside the court is not efficiently followed by our advocates in the wake of making more and more money.
The public prosecutors, who have taken upon themselves the task of representing the State, are least knowledgeable and barely put any efforts in their cases. However, this problem can be curbed by recruiting well-trained and experienced judicial staff and officers that are not lenient and efficiently deal with the scrupulous practices of cunning advocates.
- Litigation is the only method to resolve disputes
Our country is moving constantly on the path of modernization while our methods of solving disputes still remain outdated and archaic. While all the above problems have been discussed by many Reports and Courts themselves, this one still remains undermined. Today, only method of resolving disputes about which a common man is aware of is litigation which in turn means, roaming around in the courts and paying the fees of lawyers for years and years.
Instead of just litigation, we need to seek recourse to certain alternative methods of dispute resolution. Alternate forums like Mediation, Arbitration, Conciliation, Negotiation, etc. must be practised without resort to litigation. This will not just be time efficient and cost efficient, but will also restore the faith of people in justice delivery system.
Conclusion and Suggestions
Considering the above problems, it is urgent to bring in certain judicial reforms in our country. It is not just important for social welfare, but also economic welfare as a sound and efficient dispute resolution and justice delivery system will attract more foreign investors as well.
It’s time that the judiciary must take some strong steps to ensure that the system as a whole is working expeditiously, for example vacations must be reduced to a week in Subordinate Courts as well as in Higher Courts. There is a need to increase the time of everyday working of the courts, at least by half an hour.
The adjournments must be granted strictly in accordance with the provisions of ‘Order 17 of the Civil Procedure Code’ in order to avoid unnecessary delay.
With regard to the judicial reforms, it is necessary to follow the recommendations of 230th and 245th Law Commission Report as well. Also, it is important for courts to understand that certain types of cases be tried as soon as possible like in rape cases, the victim must not wait for 10-20 years for justice, in terrorism cases where the chances of prosecuting innocents are high due to pressure on police to act promptly, the courts must try such cases as soon as possible so that the State itself doesn’t give birth to victims as mentioned above while providing justice to many other victims. When today lack of professional ethics is a big problem that even the Bar itself is facing, in legal education, one just not needs to be taught what law is but also, how it has to be practised honestly and ethically, is an urgent judicial reform needed today.
And, most importantly, to solve the problem of delayed justice that is haunting the people of India to approach courts since independence, it is now high time to introduce alternate methods like arbitration and negotiation to solve civil disputes and other petty disputes which make up a heavy backlog of cases. These will help avoiding the long and cumbersome procedures and people will no more be fearful of approaching the Courts.
 Supra 1
 245th Law Commission Report, 2014, ‘Arrears and Backlog: Creating Additional Judicial (wo)manpower’ ,http://lawcommissionofindia.nic.in/reports/Report_No.245.pdf, page no. 77
 SC Advocates on Record v. Union of India, on 16th October, 2015
When it is the time for emergence of start-ups, this is indeed an era of ‘Achhe-din’ at least for young entrepreneurs who wish to be successful some day. No doubt, there are enough incentives for start-ups and ‘wantrepreneur’ today that will definitely ease their way to success along with doing of business in India. However, rest of the efforts need to be put in by the young entrepreneurs by strengthening their qualities which can increase their prospects of being successful. An entrepreneur needs not just an unending passion to work and open-mindedness, but at the same time, he must have constant flow of ideas and has to be a creative thinker, social, knowledge seeker and a risk taker.
It is not just enough to have these qualities, but it is very important to keep nurturing them with every passing day. There is always a room for self-improvement. Reading can help one build a great sense of self-confidence, to enhance one’s knowledge and to think more creatively. So, here we come with 10 must-read books for young entrepreneurs, that have been designed to help them successfully in their lives as well as businesses and to compete with the those who have years of experience in the same field.
1. The $100 Startup by Chris Gillebeau
One of the most common problems faced by young entrepreneurs is lack of funds which demotivates them to go on further with their start-up. In this book, author tries his best to cheer up the readers by giving examples of 50 entrepreneurs who started with just a few bucks in their account and are epitome of success now as entrepreneurs. This does not only motivate the readers, but also provides them with ideas to proceed with utilizing less funds.
2. The Psychology of Selling by Brian Tracy
The best quality of an entrepreneur is good sales technique. A successful will be the one who will not try to sell his product, but actually his idea and himself. The book focuses on the basics of how to sell your product by influencing people.
Another such book focusing on the same aspect of selling is “To Sell Is Human” by Daniel Pink.
3. The 7 Habits of Highly Effective People by Stephen Covey
This book has been the best-sellers for years. Recognized as one of Time Magazine’s 25 most influential Americans, Stephan Covey was an internationally respected leadership authority, family expert, teacher, organizational consultant and author. Millions of people of all ages and occupations have used it step-by-step path way to change and to take advantage of the opportunities that change creates.
4. The Startup of You: Adapt to the Future, Invest in Yourself, and Transform Your Career by Reid Hoffman
The author is LinkedIn’s co-founder and chairman, Reid Hoffman. In this book, he deals with a particular situation when one is already working under someone, but at the same time, wants to start with one’s own business and has given valuable tips on how to manage as well as get the most of such situation. He teaches how to get into an entrepreneurial mindset and keep on planning your investments.
5. How to Win Friends and Influence People by Dale Carnegie
One of the most important qualities of a young entrepreneur is being social. One of the lacking and needed qualities in any profession or business is ‘ethics’. This books not just teaches how to lead a social life, but also how to be a good entrepreneur.
6. Purple Cow by Seth Godin
Godin is undoubtedly, one of the greatest entrepreneurial minds in the world. In this book, he put emphasis upon building something so amazing that people are unable to ignore you.
7. The Slight Edge by Jeff Olson
The book is based on the philosophy that on doing little things, which, done consistently over time, add up to the big accomplishments. This is a great and unusual stuff for young entrepreneurs that shows how even little changes incorporated in life or business as practice can make a big difference and help one succeed.
8. The E-Myth Revisited by Michael E. Gerber
To start with something new, we are usually open to advices from all the directions which instead of clearing our mind, confuses us as the chances are many information may be contradictory and involves numerous myths. The author very carefully scrutinizes such situations and myths and clears the mind of readers and makes sure that they are at the end of reading are clear with the difference between working on a business and working in a business.
9. The 4-Hour Work Week by Tim Ferris
In this age, when youth is after short-cuts, author very well understands what the young entrepreneurs want and definitely shows them a path to achieve their goal, their way.
Author knows what the young minds want, and therefore, puts you in the right mindset to start building a business that will allow you to work not 20, but just 4 hours a week and still build a fortune. It’s definitely like a dream come true. No doubt, the book has been a bestseller.
10. The Entrepreneur Mind: 100 Essential Beliefs, Characteristics, and Habits of Elite Entrepreneurs
To become one, you must know how one is. The book is based on this very ideology. It focuses on if you want to become the one you want, you have to change your thinking that way. To become a successful entrepreneur, you must develop the entrepreneur mind, a way of thinking that comes from learning the vital lessons of the best entrepreneurs.
Author is himself the President of multimillion-dollar company- Johnson Media Inc. and shares essential beliefs, characteristics and habits of elite entrepreneurs.
Conducive the regulatory environment of the economy, higher will be the ease of doing Business. ‘Make in India’ project is the most hyped and discussed initiative of NDA government and to make this a success, Ease of Doing Business ranking has most been focused in the recent years. With the second anniversary of NDA, we need to know how the efforts made by it in the direction of easing the business, how such efforts can prove to be fruitful.
To create a congenial environment for business in India, it has always been important to initiate an effortless process to start a business, and start-up India movement with a fund worth Rs. 10,000 crores which has provided for many initiatives for start-ups like tax-exemption for initial 3 years, exemption in patent fees, etc.
Now, Registration for PAN, TAN, and ESIC and incorporation of company can be done through a single form on eBiz portal. For instance, for PAN registration can be done on https://www.ebiz.gov.in/panregistration-central and time taken for obtaining PAN and TAN on this portal brought down to T+1 days.
Form INC 29 which was launched by Ministry of Corporate Affairs in 2015 to provide 3 preregistration services viz. ‘Name Availability’, ‘Director Identification Number’ and ‘incorporation of company’ with one form and one payment, too has made the environment Business-friendly to a great extent.
Construction regulations are needed to protect the public from faulty building practices. To do so, regulations need to be made clear and comprehensive as if they are not clear, permits for construction might lead to unnecessary delay because of disputes and uncertainty. In this regard, NoCs from Maharashtra Industrial Development Corporation, Director of Industries, Collector and Maharashtra Housing and Area Development Authority have been eliminated, introduction of digital sanction of application, online colour-coded maps for Delhi and Mumbai airports have been introduced to get no-objection certificate from Airports Authority of India and so on.
Electricity being an input for any kind of business needs to be easily availed. Maharashtra and Delhi have implemented the lump-sum charges for electric connection and have removed the need of an estimate and an inspection for the same. Only documents now needed to apply for electricity connection are identity proof and proof of ownership of the place.
Central government has seriously tried to follow its ideology of “Ek Bharat Shresth Bharat” and in spite of all the differences between the Central and State government parties, both have conjointly worked with each other to make the dream of ‘Make in India’ a reality like in Delhi, Delhi VAT Sewa App has been developed, Commercial Divisions and Appellate Divisions in Delhi High Court have been established and so on; in Mumbai, VAT and Profession tax registration has been integrated into a single process, Requirement of inspection has been removed to make registration of Shops and Establishments real-time, etc. The reason why Delhi and Mumbai were chosen first may be, because these two cities have the most potential for business.
How easy it is to trade across borders also determines how friendly the trading environment for businessmen is, that is, they must be able to import the raw materials and capital goods and must be able to export the finished goods with simplified trading procedures as many have been introduced by the government in the past two years.
When a business is set up and continued, it always involves certain contracts, and the essence of contracts can be realised only when they are efficiently enforceable. India’s performance in enforcing contracts has been quite poor and there has been an instant need to improve this, so that the prospective investor is not fearful of being trapped in long litigation processes. To ensure this, The Arbitration and Conciliation Act has been amended to reduce the time taken in arbitration proceedings and grounds on which an award may be challenged. The setting up of Special Commercial Courts in Delhi and Bombay High Courts to speed up cases related to enforcement of contracts are some of the measures taken so far. Also, the announcement of having a Bankruptcy Code seeks to resolve the never-ending litigations related to insolvency.
Modi’s vision of Digital India and initiatives towards this will undoubtedly make the processes like registration of companies and property quite easier. In Delhi, all sub-registrar offices have been digitized and sub-registrar’s records have been integrated with the Land Records Department. In Maharashtra, all property tax records have been digitized.
Plans like Start-up India and Digital India are aimed at Ease the doing of business in India which in turn seeks to target ‘Make in India’- a monosyllabic solution for all economic problems of India.
Never was the phrase “Ease of Doing Business” ever so heard in the economic history of India than it is being accentuated from the last 2 years after the NDA government took over. Modi has dreamt of bringing India amongst top 50 countries for ‘ease of doing business.’ It ranked 134th in 2015 and has managed to progress to 130th in 2016 out of 189 total countries as per the World Bank report showing that the fruits of government’s efforts can soon be reaped. In the areas that India’s performance has improved, the biggest improvement was under the head of ease of ‘access to electricity’, where it moved up 29 spots to 70.
With the commencement of the Union Budget speech this year, Finance Minister, Arun Jaitley quoted, ‘We must strengthen firewalls against risks through structural reforms, rely on domestic market so that growth does not slow down.’ In our domestic economy, one would like to invest obviously, only when it is easy to step into the market without much hustle and bustle. One of the main object of ‘Make in India’ project is to ease the starting and continuing of any business in India as until and unless, it is feasible and easy to make in India, nobody would be attracted to make in India.
Simplifying the Procedure:-
The Department of Industrial Policy and Promotion (DIPP) has taken up a series of measures to improve ‘Ease of Doing Business’. The simplification and rationalization of the existing rules and introduction of information technology to make governance more efficient and effective has been emphasised upon the most. In 2015, INC-29-an e-form was introduced which gave a fast track procedure for registering any company in India. To simplify and fast track the procedure for company registration in India, the Ministry of Corporate Affairs (MCA) had introduced Form INC-29 – Integrated Incorporation Form. Form INC-29 Company Registration has now been merged with the process of getting Director Identification Number (DIN), Name Approval and Incorporation application into one single process – thereby significantly reducing the time taken to start a company in India while the process earlier included filling up of 8 different Forms. The INC-29 form can be accessed through http://www.mca.gov.in/MinistryV2/Download_eForm_choose.html. Another step taken towards single window clearance is the proposal of a Business Identification Number for companies and firms with an aim to do away with the need for procuring separate registration numbers such as Company Identification Number and Labour Identification Number which are total 18 in number.at doing away with the need for separate registration with authorities ranging from the registrar of companies to the direct and indirect tax wings, the labour department and for export and import. at doing away with the need for separate registration with authorities ranging from the registrar of companies to the direct and indirect tax wings, the labour department and for export and import. at doing away with the need for separate registration with authorities ranging from the registrar of companies to the direct and indirect tax wings, the labour department and for export and import.at doing away with the need for separate registration with authorities ranging from the registrar of companies to the direct and indirect tax wings, the labour department and for export and import.
Further, Application forms for Industrial Licence (IL) and Industrial Entrepreneur Memorandum (IEM) have been simplified. Application for processing of Industrial License (IL) and Industrial Entrepreneur Memorandum (IEM) can be made online and this service is now available to entrepreneurs on 24×7-basis at the eBiz website. This had led to ease of filing applications and online payment of service charges. Similarly, there are various other procedures that have been simplified so that the investors in the fear of getting trapped in the procedure itself do not resist starting any business. That is, minimum government and maximum governance seems to be the goal of the government.
Reducing the Litigation:-
Commercial disputes are not just an impediment in the progress of any business, be it on a small or a large-scale, but also discourage the investor to even step into the market. In other words, it creates a strenuous environment in the market. So, it was high time for the government to take necessary steps to reduce the litigation in commercial disputes to the maximum extent it could. Urgent steps have been taken to facilitate quick enforcement of contracts, easy recovery of monetary claims, reduce the pendency of cases in courts and hasten the process of dispute resolution through arbitration. The Arbitration and Conciliation (Amendment) Bill, 2015 was introduced in both houses of Parliament in its recent session has now become an Act after having received the President’s assent on 31.12.2015 and shall be deemed to have come into force on the 23rd October, 2015.
Indian judiciary has often been criticized for interfering in the International Commercial Arbitration especially, when the cases involved any foreign party. The amended Act aims to bring Indian Arbitration Act at par with the global standards with minimal court interference. It has come into force to provide speedy and cost-effective dispute resolution to the parties which will thus obviously attract more and more investors making the continuation of business easier in India.
It provides for a fast-track procedure to start and wrap-up the arbitration proceedings expeditiously as well as for appointment of the arbitrator which would now be made by High Court or Supreme Court instead of CJI or by CJ of High Court. Section 17 has been amended for empowering the Arbitral tribunal to grant all kinds of interim measures which the Court is empowered to grant, under Section 9 and such order shall be ‘enforceable in the same manner as if it is an order of Court. Also, the application to challenge the award can now be made only within a period of one year. While there are many other amendments, these few are just to illustrate the efforts being put by the government through such initiatives recently.
Furthermore, for the quick resolution of commercial disputes, the Government has proposed for the setting up of exclusive commercial divisions in various courts in India based on the recommendations of the 253rd Report of the Law Commission. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill, 2015 has been notified to become an Act in the Gazette of India dated 1st January, 2016. This Act has further helped in making the litigation of commercial disputes less cumbersome by introducing Commercial Courts at the district level, Commercial Divisions in High Courts and Commercial Appellate Divisions for timely disposal of Commercial disputes. The Act has quite widely defined Commercial disputes as to include any dispute related to transactions between merchants, bankers, financiers, traders, etc. Such transactions deal with mercantile documents, partnership agreements, intellectual property rights, etc.
And, the specified value of a commercial dispute that will be dealt with by Commercial Divisions in High Courts and Commercial Courts will be an amount not below one crore rupees, and will be specified by the Central Government. However, in view of the Arbitration and Conciliation Act, 1996, (as Amended), all matters pertaining to international commercial arbitrations involving disputes of subject matter of value of more than 1 crores will be brought within the ambit of the High Courts and matters pertaining to international commercial arbitrations are to be heard and disposed by the Commercial Division and has also made certain amendments to the Civil Procedure Code as well in order to expedite the litigations which, in turn, will boost the ‘Ease of Doing Business’.
Infrastructural advancement will ease the doing of business too:-
Important steps towards Digital India have also contributed to doing business easier. For instance, The National Optical Fibre Network Programme (NOFNP) as mentioned by the Finance Minister in last budget that it has been implemented in many States. These kinds of infrastructural developments will not only just attract investors to India but, will undoubtedly make it easier to make in India. Investor obviously tends to invest at a place with maximum facilities. The move to recapitalize banks with a total budgetary outlay of Rs. 25,000 crores would also help enable the financial institutions to support infrastructure growth. With a step to revitalise the PPPs, a new credit rating system for infrastructure projects will be introduced.
Easing the Environment for Business:-
For a greater ease of doing business, it is more than important that the business environment be conducive and not obstructive. To create the positivity in environment, the following steps have been taken:-
- Amendment to Companies Act, 2013:- Towards an important step to ease the business environment, the Companies Act Amendment Bill, 2016 has been introduced. It would be helpful in improving the enabling environment for start-ups while the Start-up India plan introduced this year has already been incidental in encouraging more and more start-ups in India.
“The proposed changes are broadly aimed at addressing difficulties in implementation owing to stringency of compliance requirements,” says the ‘Statement of Objects and Reasons’ of the bill. The bill seeks to simplify various procedures such as, private placement process, removing restrictions on layers of subsidiaries and investment companies, amending CSR provisions to bring greater clarity and exempting certain classes of foreign entities from the compliance regime under the Act.
The bill has also proposed to allow unrestricted object clause in the Memorandum of Association and thus, give up “detailed listing of objects, self-declarations to replace affidavits from subscribers to memorandum and first directors”. Most importantly, the definition of small companies which are given various exemptions has now been increased from Rs. 2 crores to Rs. 5 crores meaning thereby that, government seeks to ease environment not just for giant corporate-houses, but also for small companies. An abridged form of annual return is expected to be announced in case of small companies. Likewise, section 134 is sought to be amended to provide for an abridged form of financial statements in case of small companies.
- Ek Bharat Shreshtha Bharat- Create closer engagement between states and districts:-
The launch of “Ek Bharat Shreshtha Bharat” is a new endeavor of unifying the diversity of the country. But, the question is how this endeavour of unifying the country will ease the business environment? For instance, Uttar Pradesh and Maharashtra are paired for the mission. Now they can utilize the strengths of each other. The State of U.P. is well versed in the technique of handicraft. Now Maharashtra being a state of big business houses can help these handicraft workers with appropriate capital so that they can avail requisite material for the craft. Since autonomous investment is not coming in this field, the State can impose social responsibility to these business houses to ensure that investment flows to the handicraft industry. Also the state of Maharashtra can provide for the export facility for these products. Thus people of U.P. seeing the benefit being derived from the state of Maharashtra, will instead of being in estranged relation will convert into engaged relations.
This diversified unity can just not only ease the environment for all types of businesses, but can also widen the horizons for various businesses. This programme indeed needs to be praised for its uniqueness and relevance and will hopefully aid in creating an easy business environment in the country.
All these recent initiatives and recent developments in this field undoubtedly seem to be attractive on the paper, but real development will only be possible only when it is implemented in an efficient and effective manner practically.
Article 356 of the Constitution of India deals with the imposition of President’s Rule in the States, when the Constitutional machinery in that very State has lapsed or failed. When it is imposed, the State Legislature ceases to function as it is either kept under suspended animation or is dissolved. We observe that the provision is included in the chapter of ‘Emergency Provisions’ under the Constitution, but it is not at all contingent upon any emergency of the nature referred to in Article 352. This Article is one of the most important aspects of Central-State relations in India, and is undoubtedly a common scenario in our country these days with President’s Rule imposed in Arunachal Pradesh in January 2016 followed by Uttarakhand and being suspected so by Himachal Pradesh government as well. Ironically, the governments in these States are not the ones enjoying majority at the Centre right now. However, these are the twist and turns Indian politics has always been fond of, especially, at the times when Central government enjoys a powerful majority and aims to conquer the whole country. But, I would keep aside our readers from this crisp of twist and turns and forthrightly, discuss the legal aspects of this provision, how it should be used and how it has been misused and so on.
The powers of Centre under this Article are rigorously controlled by the Constitution. A proclamation under Article 356 is issued on the recommendation of the Governor of the concerned State or otherwise and is satisfying to the President that the government of the State cannot be carried out in accordance with the provisions of the Constitution. The glaring point obviously is that the President is just the name as he acts on aid and advice of the council of Ministers that is, the government at the centre and thus, the satisfaction is not his personal satisfaction. The President’s satisfaction being subjective cannot be challenged in a Court of law on the ground of correctness or adequacy of materials or grounds. Such proclamation once issued can be revoked or varied by a subsequent Proclamation. The words “or otherwise” very clearly are indicative of the fact that it is not necessary that the President will act only on the report of the Governor, but he can rely on other sources as well like Union agencies or any Union Minister and thus, the provision is of very wide import and it is often seen that such wide and unrestricted rights have been misused.
Usually, the President’s rule is imposed when the State government loses its majority in the State Legislature or its coalition partners or supporting parties withdraw their support which recently happened in Uttarakhand when certain MLAs of congress party rose in rebellion against their own party, and in Arunachal Pradesh when the Governor of the State recommended so because of the disturbance in Legislature after the split of 21 of its MLAs to BJP. Also, there have been certain instances of President’s rule when no party post polls is able to gain majority and is unable to get support of other parties or their allies. Other instances like that of resignation by Arvind Kejriwal for his party could not pass Jan Lokpal Bill then as the party did not enjoy absolute majority also led to imposition of President’s rule, Mrs. Indira Gandhi too holds the record of issuing maximum number (35) of proclamations during her regime of 14 years.
The architects of our Constitution could never imagine a situation like this as Dr. Ambedkar had expected that “such articles will never be called into operation and that they would remain a dead letter.” It was supposed to be an exceptional provision to be applied only in the last resort but, unfortunately it is being used today to refuge the political motives.
However, the Judiciary has tried its level best to check this political menace.
The whole Article and specifically, Clause (1) has been considered by the Supreme Court very wisely in State of Rajasthan v. UOI in 1977 which was a seven judges Bench. The main hurdle before the bench was the bar imposed on judicial review on old clause (5) of the provision which was later on amended by 44th Amendment to the Constitution in 1978. In this case, the question clearly was if the courts should interfere with any kind of arbitrary use of this Article by the Central government which could very likely disturb the fine balance of the Federal Structure of the country. C.J Beg opined that the Court must not interfere in this matter at all. However, rest of the 6 judges formed a majority opinion which differed from this. It was observed by the Court that:-
“…we have no doubt at all that merely because the ruling party in a State suffers defeat in the elections to the Lok Sabha…that itself can be no ground for saying that the Government of the State cannot be carried on in accordance with the provisions of the Constituion.” This in my opinion too would be nothing but, immoral politics.
It was held that the Union Government would wait for such an unfortunate situation when the State Government is most likely to be faced with popular resistance so as to make it impossible for the ruling party to carry on the government of the State in accordance with the Constitution instead of resorting to the drastic remedy of this provision in the anticipation of the occurrence of malady. However, it was further held that satisfaction of President under this is ‘subjective’ and can’t be tested with reference to any objective tests and suit against the President proclamation was unanimously dismissed.
Now, after this judgment when the bar was lifted by the Judiciary on judicial review of any indiscriminate action by the Centre encouraged the Apex Court to become proactive and take a bolder step which is evident from the 9-judge bench decision in S.R. Bommai v. UOI.
The principle of Article 356 has been set out in the said decision in the following words:
The crucial expressions in Art.356 (1), namely, if the President, “on the receipt of report from the Governor of a State or otherwise” “is satisfied” that “the situation has arisen in which the government of the State cannot be carried on” “in accordance with the provisions of the Constitution” were examined. It held that the President’s satisfaction has to be based on objective material. That material may be available in the report sent to him by the Governor or otherwise or both from the report and other sources. … Once such material is shown to exist, the satisfaction of the President based on the material is not open to question.”
“….However, if there is no such objective material before the President, or the material before him cannot reasonably suggest that the government of the State cannot be carried on in accordance with the provisions of the Constitution, the proclamation issued is open to challenge.” (opinion of P.B. Sawant J.). The Court appreciatively accepted the recommendations of Sarkaria Commission in this case. Thus, the power under this Article is a condition power and not an absolute power today.
The Court in this case overruled the Rajasthan case by holding that though Article 74(2) bars the Court to question what advice is rendered to President by the council of Ministers but, it can definitely ask the Union Council of Ministers to reveal the material upon which they formed their advice to the President.
The NCRWC Report of 2001 after examining the position of this important provision has very carefully suggested that we need to maintain co-operative federalism in the country in order to ensure good governance in the country and has suggested certain amendments like ‘whether the Ministry in a State has lost the confidence of the Legislative Assembly or not, should be decided only on the floor of the Assembly and nowhere else. If necessary, the Central Government should take necessary steps to enable the Legislative Assembly to meet and freely transact its business. The Governors should not be allowed to dismiss the Ministry so long as it enjoys the confidence of the House. Only where a Chief Minister of the Ministry refuses to resign after his Ministry is defeated on a motion of no-confidence, should the Governor dismiss the State Government’, ‘Before issuing the proclamation under clause (1), the President/the Central Government should indicate to the State Government the matters wherein the State Government is not acting in accordance with the provisions of the Constitution and give it a reasonable opportunity of redressing the situation – unless the situation is such that following the above course would not be in the interest of security of State or defence of the country’ and, ‘if so necessary, the State Legislature cannot be dissolved by the proclamation, it can only be kept under suspended animation.’
However, if we follow-up the recent controversies, we see that the hunger of power has fallen so heavily on the Union that it barely wants to pay heed to the laws of the land laid down by the Apex Court but, all we can do is sit back and watch how the Courts of law take their toll and check this abuse of the Constitution and that is the essence of democracy indeed, as soon as one pillar sickens, the other is ready with the anti-dote.
 AIR 1994 SC 1918
 National Commission to review the Working of the Constitution, http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm
 AIR 1977 SC 1361
 IX C.A.D., 177
 Article 74
 State of Rajasthan v, Union of India, AIR 1997 SC 1361
 352. Proclamation of Emergency
Ordinances are temporary laws which are enacted by the Central or State executive during the recess of their respective Legislatures in case of emergent situations. An ordinance is issued by President on the advice of Union cabinet as provided by Article 123 of the Constitution and similarly, by the Governor in States on the aid and advice of his cabinet as provided by Article 213.
The intent of the Constitution-makers behind enacting this provision can be traced by the following words of Dr. B.R. Ambedkar, “My submission is that it is difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation which it must deal with ex hypothesi. It has not got the power to deal with that in the existing code of law. The emergency must be dealt with and it seems to me that the only solution is to confer upon the President the power to promulgate the law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because again ex hypothesi, the Legislature is not in session. Therefore, it seems to me that fundamentally there is no objection to the provisions contained in Art. 123.”
In A.K. Roy v. UOI, it was held that while the law making power under the Constitution of India is vested in Parliament by Article 107, Article 123 empowers the President to legislate by ordinances to meet with any circumstances that require immediate action, when Parliament or either House thereof is not in session.
In R.K. Garg and Ors. v. Union Of India (UOI) and Ors., the Supreme Court has justified this legislative power conferred upon the Executive on the ground that it is necessary to meet urgent situation such as taxing laws or other laws being declared void by the Court at a time when Parliament is not in session, and valid law to take its place is promptly required.
Regarding this Article, Hon’ble Member H.V. Kamath in the Constituent Assemby was of the view – “We expect our President to be a Constitutional President and that he would always act upon the advice or direction of the parliament. But if the President is inclined to dictatorship, or to exercise dictatorial powers, who know what the future has in store for us?” (CAD Vol. VIII, p. 205) It was assured by Dr. Ambedkar that there need not be such apprehension as the President does not possess any independent power and acts on the aid and advice of the Cabinet.
But, ironically, when the history of ordinance making power is traced since the commencement of Constitution, even a common man can infer that it has not been used sparingly and only in emergent situations which could not be delayed till the next meeting of the Legislature which was the original intent of the Article. This is not just true for ordinances promulgated by the President who acts on aid and advice of the Union Council of Ministers but, also for the ordinances promulgated by the governors in their respective States by acting on the aid and advice of their respective council of Ministers. Unfortunately, the apprehensions of Mr. Kamath have proved to be true and assurance that President is not independent by Dr. Ambedkar has itself paved the way for Constitutional controversies in the country as the main feature of Indian democracy is that it has no strict separation of powers and executive and legislature are inseparable. The council of ministers in the executive who aid and advice the President are also the Members of Parliament representing majority of the ruling government and thus, the consequences might be that what legislature is not able to do in the House directly can do that indirectly through the ordinances and it is not just an apprehension but, there are countless examples to this.
The glaring fact is that the Constitution does not explicitly bars the re-promulgation of any ordinance and the absence of such explicit bar has been exploited time and again by the Union as well as the State governments. Who can forget the Ordinance Raj in Bihar that was quite later on after it prevailed was criticised by Supreme Court in its judgment of Dr. D.C. Wadhwa v. State of Bihar when the Bihar government continued to re-promulgate its various ordinances for years continuously without laying it down before the Legislature. Not only this, but promulgating the necessity of ordinances has always been debatable. For instance in 1997, TRAI ordinance was promulgated and then, enacted by the Act of Parliament. It was clearly said by the Minister in charge that they opted the route of ordinance “…we were facing difficulties in attracting private investment without an authority like the TRAI. Private investors… were not convinced about our ongoing processes of privatisation and liberalisation.” Now, it is hard to convince oneself that it was an urgent situation and required an immediate action. While promulgating the SARFAESI ordinance in 2002, the Minister in charge refused to give any reasons for the ordinance. No one can forget the ordinance by Indira Gandhi government in 1969 to nationalize Banks just a day before Parliament had to come in session. Similarly, the Electricity Regulatory Commissions Ordinance of 1998 was promulgated just a day before the next session of Parliament had to be convened. The National Commission for Minority Educational Institutions (Amendment) Ordinance, 2006, was promulgated in January 2006, even though Parliament was to convene from February 16, 2006. And, again the Indian democracy was deployed with a satisfactory answer to such a Constitutional transgression. Such examples have time and again proved that the uninterrupted route of ordinance in India has caused much menace.
However, the position has changed with time though not absolutely and the route of this ordinance making power can be interrupted by the process of Judicial Review. In A.K. Roy v. Union of India and R.C. Cooper v. Union of India (bank nationalisation case), the Apex Court has held that ordinance-making power is a legislative power given to the President and therefore, is not similar to the exercise of his executive powers. Also, ordinances are also “law” under Article 13 and therefore, can be reviewed in the Courts of law. Using the same reasoning, the Supreme Court reached damaging conclusions in Venkata Reddy v. State of Andhra Pradesh and K. Nagaraj and Ors. v. State of Andhra Pradesh. This is not just the hail for judiciary but, also a symbol of healthy, growing and efficient democracy.
Our Constitution provides for equality before law or the equal protection of the laws to everyone in the territory of India. This clearly means that as per the Constitutional scheme of our country, each and every person is equal irrespective of his religion, caste, creed, sex and so on. When we talk about the concept of equality, we come across two ways of practicing equality in a State. For instance, there are two horses for a race, one being well-trained and the other being not-so well-trained or an ordinary horse. We make both of them run a 100 meters race; do you think the un-trained horse will be able to run? But, both were given equal opportunity to run at equal distance. This is called an absolute equality or I would rather call it artificial equality. Well, to give a practical meaning to equality, the untrained horse must be given an extra benefit of like, say, to run only 80 meters and there can be other solutions as well to bring them at par to let them compete equally in a practical manner. That is the very idea behind providing reservations under Article 15(4) and 16(4) of the Constitution to Schedule Castes, Schedule Tribes and other backward classes. This example was illustrated by Hon’ble Justice Subbarao in his dissenting opinion in Devadasan v. UOI (1964 SCR (4) 680) and the very idea has been highlighted in many Supreme Court cases. This idea led to the reservation for SCs, STs and OBCs in services and educational institutions. Mandal Commission constituted in 1979 identified who qualified as an “other backward class,” as per proper quantifiable data and evidence, and subsequently, it was held in Indira Sawhney v. UOI (1992 Supp 2 SCR 454) that a caste may constitute a class if it, as a whole, is not adequately represented in services and the fact is supported by quantifiable data.
The battle for reservation has started with the introduction of Other Backward Classes by Mandal Commission mainly. Every another community in India today wants to be reserved as OBCs, be it Patels in Gujarat or Jats in Haryana, and the glorious fact we encounter with, while such communities protest for reservation, is that these are one of the most prosperous communities in their respective States. If one community gets reservation by resorting to unlawful means, it paves the way for other communities to protest the same way to get their illegitimate demands in place. By protesting in the ways that we recently saw in Haryana where the government could barely do anything to stop the agitators, it would not be wrong to say that protesters have now tasted the blood and they would not refrain from repeating the same if their demands are not met. That is where, the battle becomes unstoppable.
The reasons why these communities have come down to the battle field to fight for reservation because of the misconception that the State has the duty to create job for them but, rather, it is just a facilitator of jobs. The government jobs are not created prima facie to benefit people, but to facilitate the smooth function of State administration. The reason why people even stoop to the level of blood shedding for reservation today is that because they find government jobs lavish and at the same time, quite secure which is absent in case of private jobs.
According to a 2011-12 report by the Labour Bureau, the average daily earnings of a worker in the private sector were considerably lower than in the public sector. Also, the Seventh Pay Commission has recommended for an increase in the minimum monthly wage to Rs. 18,000. This definitely proves that it is not just reservation policy per se that is bothering our democracy today, but rather, it is the absence of appropriate jobs for the people. As private sector is neither secure nor sound enough to accommodate the large Indian population, therefore, people tend to resort to public jobs and hence, look for an ease to get through them via reservation. In an anthropological survey by M.N. Srinivas of 1950s, dominant caste was defined as the one which is demographically important and owns a good amount of law which is true for Patidars in Gujarat, Jats in Haryana, U.P. and Rajasthan, Gujjars in rajasthan, Kapus in North Telangana and Rayalseema and Marathas in Maharashtra. All these communities own a lot of land. This could be another grey area where government has miserably failed. It has failed to utilize its one of the best and God gifted resource as well as a source of income. In other words, it has failed to develop and modernize agriculture and that is the reason why the people belonging to agrarian culture or peasant castes are unhappy today. It is not just that our government has failed to handle the reservation policy well; it has also failed to balance its economy which is not just today resulting in monetary loss but, loss of lives as well. Also, another factor to be understood on the part of public is that government cannot create public jobs for everyone and on the part of government, it must work to make private sector efficient and pleasing enough so that people too have faith in it. Undoubtedly, the concept of reservation too has till now proven quite unhealthy for our democracy as well as law and order of the country. When the Right to Education under Article 21A is well-placed now, it needs to be further developed. What if the untrained horse in the above illustration is well-trained till the time he reaches at the point of competition? That is where, in my opinion, the antidote of this deep-rooted cancer of our society lies.
Instead of questioning the criteria on which it is based, we need to go to the root of the problem which is that some sections of our society are ignorant and do not get equal opportunity for education, and that is why they need reservations in government jobs and education. Will it not be better to provide them with the element that they lack at the basic level itself in order to let everyone compete equally later? The government must work to provide free elementary education in India along with bringing in some provisions for senior secondary as well as higher education. Rather than making them equal, let them actually be equal. This would even increase the efficiency in the system because then, merit will not be sacrificed at all. However, vote bank politics in our country will be the deterrent block to hinder this idea to proceed as no government will be willing to abolish reservation in the fear of losing their Dalit vote share.
In a letter dated 27 June, 1961 to all the Chief Ministers by Jawaharlal Nehru, he too stated the same about reservation as:
“This way lies not only folly, but disaster”
“…I react strongly against anything which leads to inefficiency and second rate students. The moment we encourage the second rate, we are lost. The only real way to help a backward group is to give opportunities to good education…”
Euthanasia, also known as mercy killing or assisted suicide is no longer a baffling term for Indians today after there have been discussions over it in the Indian Supreme Court while pronouncing the landmark judgment on Aruna Shanbaugh in March, 2011. Aruna Shanbaugh, a nurse at K.E.M. Hospital, Mumbai, was sexually assaulted by a ward boy and remained in persistent vegetative state for more than 30 years. The Supreme Court laid down certain guidelines as to legalize passive Euthanasia in India but, however, did not allow discontinuing Aruna Shanbaug’s life because the hospital staff taking care of her was not in support of it. Justice Markandey Katju started the judgment with a couplet by Mirza Ghalib:“Marte hain aarzoo mein marne ki, Maut aati hai par nahin aati (They live but with a desire to die… Death arrives, yet eludes them).
Supreme Court laid down that any High Court that is approached with the petition for euthanasia must seek the opinion of the committee of three doctors preferably one neurologist, one should be a psychiatrist, and the third a physician nominated by the Bench to study the condition of the patient and also, it must try to give its decision at the earliest. With that, it denied to allow active euthanasia. Apex Court also distinguished between active and passive euthanasia. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.
Now, when the law for active and passive euthanasia has been settled by the Highest Courts of law, the legal eagle have once again knocked the doors of the Supreme Court to discuss another aspect of Euthanasia, which has never been discussed before that is, ‘Living Will’. Also known as active declarations, it must not be confused with will.
This term was proposed by an Illinois Human Rights lawyer Luis Kutner in 1969. Just as a person when he dies, directs what must be done with his property after his death in a will, similarly, in the event of his death, he must have the right to direct his medical preferences for the time when he might not be able to deliver his consent. This is triggered when the person has no hope to live further or is made to survive by artificial means like ventilator. The reason behind this might be that keeping a body alive that is no more capable even of breathing, goes through a painful and gut-wrenching treatment when forced to breathe by means of ventilator or any other heroic measures.
‘Living will’ in the form of a written document gives clear instructions about the administration of one’s medical treatment when he is permanently ill or unconscious and is not able to communicate his choices and, might prove helpful to his doctors as well as relatives. It would have a legal sanction as the document needs to be notarized and attested by witnesses that it was made out of person’s free will. The idea seems to have been derived from Robert Nozick’s theory of self-ownership and minimal State. The latter talks about the rights a person has on his own self as he is the sole owner of his body. So, he will only decide as to how he must be treated and even his closest of relatives must not be allowed to give their consent to keep him alive when his body does not naturally allow or most importantly, when his advance directives direct something contrary. Also, the theory of minimal state would support this idea as the State must not be allowed to interfere in one’s personal rights over oneself and should only be allowed to perform its duties as “night-watchman” State, a government which protects individuals from force, fraud, and theft, etc. with the help of police and military forces and administers courts of law, and so. Except performing all these duties, the State has no right to impede the personal rights of a person that also include the right to choose his method of treatment when suffering from any severe illness or disease.
This is all about how the subject of ‘living will’ evolved and how it is going to be interpreted. However, this is still not legal in India unlike countries like Illinois, Florida, etc. This is not entirely a debate on Right to Die which was struck down by the Court in P. Rathiram v. Union of India in 1994 but, surely a facet of it which needs to be discussed thoroughly now. A PIL was filed in July, 2014 in Supreme Court by NGO Common Cause and it was argued by Mr. Prashant Bhushan on their behalf that even though it is upon Legislature to take necessary steps for any needed or emerging laws after public debates but, enough of public debates had taken place on this subject and still no step was taken by the Parliament in this context. Explaining “living will”, Bhushan argued that a person has right to refuse a particular treatment that might prolong his agony and when he has no chance to recover. He has a right to die with dignity. It is undoubtedly a complex issue that involves many questions which need to be answered before enacting such law in India as it concerns with legal, social as well as moral aspect of human existence like what is dignified life, who will decide when actually the event of death has commenced, is it not possible that the stance of the person might change after he has written his living will that concerns the most important question of his own life and death and what would happen if tomorrow medical science is able to find a remedy to terminally-ill diseases and so on.
The worst and best thing about law is, it is never stable. We might end up making a law on one issue and another issue in relation to that might be confronting us to be discussed upon. That is what we call ‘evolution of law’. Same has happened with the issue of Euthanasia in India. The Supreme Court had just legalized passive euthanasia and concept of ‘living will’ has come up before us. It needs to be discussed as per the social, economic and political culture of our country and implemented accordingly.