GS Analyst: Daily Current Affairs

Context:

By focusing more on the particular concept of sovereignty ‘which requires no subordination to another body’, the Court ends up refusing to recognize the shared sovereignty model of Article 370.

Constitutional Monism and Federalism

• Constitutional Monism Eroding Federal Powers: The Supreme Court's unanimous decision on Article 370 reflects constitutional monism, undermining the federal distribution of powers.
• Neglect of J&K's Shared Sovereignty Model: Article 370's shared sovereignty model, as envisioned by J&K's Constituent Assembly, is neglected in favor of Union-centric sovereignty.
• Binary View of Sovereignty:The Court's binary view of sovereignty oversimplifies the complex federal dynamics, setting a concerning precedent for federalism in India.

Contingency of Presidential Power under Article 370

• Dismissing Permanence: The Court's monist approach is evident in its interpretation of Clause 3 of Article 370, rejecting the idea of its permanence.
• Unbridled Presidential Power: By asserting unbridled power for the President, the Court overlooks the contingent nature of Clause 3 on the Constituent Assembly's recommendation.
• Erosion of Checks and Balances: This interpretation weakens the checks and balances inherent in constitutional democracy, challenging the essence of federalism.

Popular Sovereignty

• State Views on Reorganization:The judgment diminishes the significance of an individual state's views on reorganization, favoring Parliament's authority.
• The Court's monist perspective subordinates the popular sovereignty of J&K's people to the broader national sovereignty, eroding state autonomy.
• Alarming Shift:This shift in dynamics is particularly alarming for J&K, where historically, the threshold for reorganization was higher than in other states.

Context:

Instead of decolonising criminal law, the three new Criminal laws related Bills should entrench colonial logic — where the state’s paramount interest is to control the people to the maximum extent.

Expansion of Police Powers and Overcriminalization

• Overextended Police Custody: BNSS proposes a drastic increase in police custody duration from 15 to 60 or 90 days, posing risks of abuse and coercion.
• Widespread Overcriminalization: BNS introduces broadly defined offenses, particularly related to national security, contributing to overcriminalization and state control.
• Lack of Transformative Vision: The bills lack a transformative vision for criminal law and justice, instead indicating an expansion of state control.

Ambiguous Offenses and Lack of Clarity           

• Vague Offenses Persist: BNS II maintains ambiguous offenses like misinformation and "Acts endangering sovereignty," perpetuating concerns about unclear legal boundaries.
• Surrogate for Sedition: While removing "sedition," BNS II introduces a surrogate offense, lacking clarity and potentially widening the net for prosecution.
• Terrorism Definition Ambiguity: Ambiguity persists regarding the applicability of BNS to terror offenses, with an unclear decision-making process between BNS and UAPA.

Structural Barriers

• Missed Correctional Opportunities: Proposed bills miss the chance to address fundamental injustices in the criminal justice system, entrenching colonial-era state control.
• Inadequate Structural Reforms: Despite emphasis on timelines and technology, the bills overlook fundamental structural barriers, such as high judicial vacancies and forensic science issues.
• Efficiency vs. Context: The bills, emphasizing efficiency, fail to consider the context of implementation, especially regarding technology, forensic methods, and infrastructural challenges.

Context:

The role of consulting firms in government and balancing benefits and concerns emphasizes the need for regulatory oversight.

Pros and Cons of Consulting Dominance

• Benefits of Consulting Support: Consulting firms aid complex policy formulation and digitized service delivery, providing needed expertise.
• Concerns of Overdependence: Unchecked use of consultants risks hollowing out government capabilities, fostering dependency, and promoting mission creep.
• Lobbying and Mission Creep: There's a risk of consulting firms leveraging dependency for repeat work, lobbying, and influencing sensitive policy decisions.

Global Concerns and "Consultocracy"

• Global Criticisms: Worldwide, concerns arise about consultants reducing government skills, distorting public policy objectives, and contributing to corruption.
• Distorted Objectives: Books like "The Big Con" caution against consultants leading governments down amoral pathways and shaping public policy objectives.
• Emergence of "Consultocracy": Consultants permeating government can diminish traditional roles of public servants, altering government functions and capabilities.

Need for Comprehensive Regulatory Framework

• Compelling Reasons for Engagement: Complexity demands external expertise, but engagements should be within a regulated framework.
• Transparent Onboarding: Regulations should ensure fairness, transparency, curb rent-seeking, and demand disclosure of added value.
• Knowledge Transfer Protocols: Clear protocols for knowledge transfer and internal capacity building should be integral to consulting engagements.