03, January 2017

  1. Re-promulgation of ordinances fraud on Constitution: SC

Source: Indian Express

The judgment, held that ordinances issued under Articles 123 or 213 have the same force and effect as a law enacted by the legislature

Asserting that the ordinance making power is not a parallel source of legislation, the Supreme Court ruled that re-promulgation of ordinances is a fraud on the Constitution and maintained that ordinances are not immune from judicial scrutiny when the power has been exercised to secure an oblique purpose.

Key facts:

1.The judgment, held that ordinances issued under Articles 123 or 213 have the same force and effect as a law enacted by the legislature, but it must be laid before the legislature and will cease to operate six weeks after the legislature has reassembled, or even earlier if a resolution disapproving it is passed.

2.Laying an ordinance before Parliament or the state legislature, the court said, is mandatory because the legislature has to determine the need for,

  • validity of and expediency to promulgate an ordinance;
  • whether the ordinance ought to be approved or disapproved; and
  • whether an Act incorporating the provisions of the ordinance should be enacted with or without amendments.

3.The Judgement further clarified that a government cannot rely on the argument that an ordinance shall not cease to exist before expiry of six months, as laid down in the Constitution.

  1. A government which has failed to comply with its constitutional duty and overreached the legislature cannot legitimately assert that the ordinance which it has failed to place at all is valid till it ceases to operate.
  • An edifice of rights and obligations cannot be built in a constitutional order on acts which amount to a fraud on power. This will be destructive of the rule of law, said the court, adding that an ordinance must be placed before the legislature.
  1. The court said re-promulgation of ordinances is constitutionally impermissible and is a subversion of democratic legislative processes since it represents an effort to overreach the legislative body.

Ordinance between President and Governor:

    • President can issue ordinance when one of the houses of the Parliament is not in session.

 

  • The maximum validity of an ordinance is 6 months and 6 weeks.

 

  • An ordinance will expire after 6 weeks once both houses of the Parliament are in session.
  • A constitutional amendment cannot be made through ordinance route.
  • Ordinance route is envisaged for immediate action ie. if President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
  • Article 213 deals with the Ordinance making power of the Governor of a state. However, the Governor cannot issue an Ordinance without instructions from the President in three cases where the assent of the President would have been required to pass a similar Bill ie  
      • If a Bill containing the same provisions would have required the previous sanction of the President for introduction into the legislature;
      • If the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; and
      • If an Act of the legislature containing the same provisions would have been invalid unless it received the assent of the President.
  • With regard to issuing Ordinances as with other matters, the President acts on the advice of the Council of Ministers. While the Ordinance is promulgated in the name of the President and constitutionally to his satisfaction, in fact, it is promulgated on the advice of the Council of Ministers.

Conclusion:

1.The apex court also ruled that the “satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review” and that the test is whether the “satisfaction” is based on some relevant material.

In Cooper case (1970), the Supreme Court held that the President’s satisfaction can be questioned in a court on the ground of malafide.

  • This means that the decision of the President to issue an ordinance can be questioned in a court on the ground that the President has prorogued one House or both Houses of Parliament deliberately with a view to promulgate an ordinance on a controversial subject, so as to bypass the parliamentary decision and thereby circumventing the authority of the Parliament.
  • The 38th Constitutional Amendment Act of 1975 made the President’s satisfaction final and conclusive and beyond judicial review. But, this provision was deleted by the 44th Constitutional Amendment Act of 1978. Thus, the President’s satisfaction is justiciable on the ground of malafide.
  • In AK Roy vs. Union of India (1982) while examining the constitutionality of the National Security Ordinance, 1980, which sought to provide for preventive detention in certain cases, the Court argued that the President’s Ordinance making power is not beyond the scope of judicial review

2.The court in the exercise of its power of judicial review will not determine the sufficiency or adequacy of the material.

 

  • The court will scrutinise whether the satisfaction in a particular case constitutes a fraud on power or was actuated by an oblique motive. Judicial review in other words would enquire into whether there was no satisfaction at all.
  • In T Venkata Reddy vs. State of Andhra Pradesh (1985), the Court held that the motives behind the exercise of this power cannot be questioned, just as is the case with legislation by the Parliament and state legislatures.

 

3.The interference of the court, the judgment stated, can arise in a case involving a fraud on power or an abuse of power. This essentially involves a situation where the power has been exercised to secure an oblique purpose. where the court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all.

  • The court was ruling on a bunch of petitions on the validity of ordinances issued and re-promulgated in Bihar between 1989-91, that have been referred to the larger bench.
  • Chief Justice of India T S Thakur and Justice Madan B Lokur differed from the majority view on the aspect of whether it was mandatory to lay an ordinance before the legislature or that re-promulgation of an ordinance amounted to a fraud on the Constitution.
  • In DC Wadhwa vs. State of Bihar (1987), the  Supreme Court held that courts could strike down re-promulgated ordinances.

  1. Google doodle pays tribute to social reformer Savitribai Phule – a pioneer in modern Marathi poetry

Source: The Hindu

Phule is described as “one of the first-generation modern Indian feminists,”- marks her 186th birth year

Key facts:

 

  • Born in Naigaon in Maharashtra on January 3, 1831, Phule is widely regarded as one of India’s first generation modern feminists for her significant contributions in ensuring equal education opportunities under the British raj.
  • Savitribai Phule became the first female teacher in India in 1848 and opened a school for girls along with her husband, social reformer Jyotirao Phule. The two also worked against discrimination based on caste-based identity, something vehemently opposed by the orthodox sections of society in Pune.

 

  • She went on to establish a shelter for widows in 1854 which she further built on in 1864 to also accommodate destitute women and child brides cast aside by their families.
  • Phule also played a pivotal role in directing the work of the Satyashodhak Samaj, formed by her husband with the objective to achieve equal rights for the marginalised lower castes. She took over the reins of the organisation after Jyotirao’s death in 1890.
  • Savitribai opened a clinic in 1897 for victims of the bubonic plague that spread across Maharashtra just before the turn of the century.
  • In her honour, University of Pune was renamed Savitribai Phule University in 2014.

  1. Many New Projects Under Namami Gange Approved For Haridwar and Varanasi

Source: PIB

 

  • Many new projects under Namami Gange programme in Haridwar and Varanasi have been approved by National Mission for Clean Ganga.

 

  • In Haridwar, 68 MLD sewage treatment plants (STP) and 14 MLD STP in Sarai have been approved at an indicative cost of Rs 110.30 crore and Rs 25 crore respectively under Hybrid Annuity based PPP mode.
  • Apart from this, while Rs 8.34 crore has been allocated for tertiary treatment of existing 27 MLD plant in Jagjeetpur. Rs 5.32 crore has been allocated for tertiary treatment of existing 18 MLD plant in Sarai under Design, Build, Operate and Transfer (DBOT) mode.

Namami Ganga Programme:

Namami Gange programme was launched as a mission to achieve the target of cleaning river Ganga in an effective manner with the unceasing involvement of all stakeholders, especially five major Ganga basin States – Uttarakhand, Uttar Pradesh, Jharkhand, Bihar and West Bengal.

  • The programme envisages River Surface Cleaning, Sewerage Treatment Infrastructure, River Front Development, Bio-Diversity, Afforestation and Public Awareness.
  • The Mission Director of NMCG is a Joint Secretary (JS) in Government of India. For effective implementation of the projects under the overall supervision of NMCG, the State Level Program Management Groups (SPMGs) are, also headed by senior officers of the concerned States.
  • In order to improve implementation, a three-tier mechanism has been proposed for project monitoring comprising of a) High level task force chaired by Cabinet Secretary assisted by NMCG at national level, b) State level committee chaired by Chief Secretary assisted by SPMG at state level and c) District level committee chaired by the District Magistrate.
  • The area of operation of NMCG shall be the Ganga River Basin, including the states through which Ganga flows, as well as the National Capital Territory of Delhi.
  • The area of operation may be extended, varied or altered in future, by the Governing Council to such other states through which major tributaries of the river Ganga flow, and as the National Ganga River Basin Authority (NGRBA) may decide for the purpose of effective abatement of pollution and conservation of the river Ganga.

Aim & Objective of NMCG

The aims and objectives of NMCG is to accomplish the mandate of National Ganga River Basin Authority (NGRBA) of

1.To ensure effective abatement of pollution and rejuvenation of the river Ganga by adopting a river basin approach to promote inter-sectoral co-ordination for comprehensive planning and management and

2.To maintain minimum ecological flows in the river Ganga with the aim of ensuring water quality and environmentally sustainable development.

  1. Major Achievements of the Ministry of Food Processing Industries – 2016

Source: PIB

The Ministry of Food Processing Industriesis implementing a number of Central Sector Schemes for promotion and development of food processing sector in the country since 12th Plan.

The major achievements of the Ministry during 2016 are as under

1.Government has allowed 100% FDI for trading including through e-commerce, in respect of food products manufactured or produced in India. 100% FDI is already permitted in manufacturing of food products through automatic route.  This will provide impetus to the foreign investment in food processing sector, benefit farmers immensely and will create vast employment opportunities.

  1. Under the Scheme of Mega Food Parks NABARD has sanctioned term loan of Rs. 427.69 Crore to 10 Mega Food Park projects and 2 processing units under ‘Food Processing Fund’ of Rs. 2000 Crore and out of this an amount of Rs. 81.10 Crore has been disbursed.The Ministry has notified 157 designated food parks in different States for the purpose of availing affordable credit from special fund with NABARD.
  2. 3. FSSAI has simplified product approval
  • Approved a large number of new Additives harmonized with the International Codex Standards.
  • Notified an amendment to the regulations as a result of which non-standardized food products called proprietary foods (except novel food and nutra-ceuticals) that use ingredients and additives approved in the regulations will no longer require product approval. This has provided considerable relief to the industry.

International Codex Standards

  • The Codex Alimentarius Commission is a joint intergovernmental body of the Food and Agriculture Organization of the United Nations (FAO) and WHO with 186 Member States and one Member Organization (EU).
  • Codex has worked since 1963 to create harmonized international food standards to protect the health of consumers and ensure fair trade practices.
  • WHO works on the provision of independent international scientific advice on microbiological and chemical hazards. Scientific advice is the basis for the development of international Food Standards by Codex
  1. Under the Scheme of Integrated Cold Chain and Value Addition Infrastructure: Cold Chain– The objective of the scheme of Cold Chain, Value Addition and Preservation Infrastructure is to provide integrated cold chain and preservation infrastructure facilities without any break from the farm gate to the consumer.
  2. The Ministry is also taking steps to implement a new scheme namely Scheme for Agro-Marine produce Processing and Development of Agro-clusters (SAMPADA) for overall development of food processing sector, for providing enabling infrastructure, expanding processing and preservation capacities, controlled temperature logistics and backward and forward linkages, with an allocation of Rs.6000 Crore for a period co-terminus with 14th Finance Commission.

  1. Restaurants billing service charges in addition to taxes is optional: Department of Consumer Affairs

Source: PIB

 

  • Restaurants billing service charges in addition to taxes is optional: Department of Consumer Affairs
  • Consumer has discretion to pay ‘service charge’ or not: Department of Consumer Affairs

 

A number of complaints from consumers have been received that hotels and restaurants are following the practice of charging ‘service charge’ in the range of 5-20%, in lieu of tips, which a consumer is forced to pay irrespective of the kind of service provided to him.

The Consumer Protection Act, 1986

  • The Consumer Protection Act, 1986 provides that a trade practice which, for the purpose of promoting the sale, use or the supply of any goods or for the provision of any service, adopts any unfair method or deceptive practice, is to be treated as an unfair trade practice and that a consumer can make a complaint to the appropriate consumer forum established under the Act against such unfair trade practices.
  • In this context, the department of Consumer Affairs, Central Government has called for clarification from the Hotel Association of India, which have replied that the service charge is completely discretionary and should a customer be dissatisfied with the dining experience he/she can have it waived off.
  • Therefore, it is deemed to be accepted voluntarily.

Issue:

The Department of Consumer Affairs has asked the State Governments to sensitize the companies, hotels and restaurants in the states regarding aforementioned provisions of the Consumer Protection Act, 1986 and also to advise the Hotels/Restaurants to disseminate information through display at the appropriate place in the hotels/restaurants that the ‘service charges” are discretionary/ voluntary and a consumer dissatisfied with the services can have it waived off.

 



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