Polity & Governance: January 2021 Current Affairs Current Affairs Notes | EduRev

Current Affairs & Hindu Analysis: Daily, Weekly & Monthly

Current Affairs : Polity & Governance: January 2021 Current Affairs Current Affairs Notes | EduRev

 Page 1


 
3                                                                               www.visionias.in                                                                        ©Vision IAS  
1. POLITY AND GOVERNANCE 
1.1. JUDICIAL ACTIVISM AND JUDICIAL OVERREACH 
Why in news? 
The act of the Supreme Court staying implementation of three farm laws was seen by many as an act of judicial 
activism/overreach.  
Judicial activism and Judicial overreach 
• Judicial activism: Judicial activism is a judicial philosophy that motivates judges to depart from the traditional 
precedents in favour of progressive and new social policies. Judicial activism is manifested when the Supreme 
Court (or High Court) becomes an activist and compels the authority to act and sometimes also direct the 
government, government policies and also administration.   
o Instances of judicial Activism by the Supreme Court include 
? Directing the Centre to create a new policy to handle drought 
? Directing the Centre to set up a bad loans panel 
? Reforming Board for the Control of Cricket in India (a private body) 
• Judicial Overreach: There is a very thin line between activism and overreach. Judicial Overreach refers to an 
extreme form of judicial activism where arbitrary and unreasonable interventions are made by the judiciary 
into the domain of the legislature or executive. This is a situation where the court encroaches upon the role 
of the legislature by making laws. Instances of judicial overreach by the Supreme Court include 
o Denying the executive any role in the appointment of judges by instituting collegiums (an extra-
constitutional body).  
o Invalidating the National Judicial Accountability Commission Act, 2014 seeking to ensure transparency 
and accountability in higher judiciary. 
 
Page 2


 
3                                                                               www.visionias.in                                                                        ©Vision IAS  
1. POLITY AND GOVERNANCE 
1.1. JUDICIAL ACTIVISM AND JUDICIAL OVERREACH 
Why in news? 
The act of the Supreme Court staying implementation of three farm laws was seen by many as an act of judicial 
activism/overreach.  
Judicial activism and Judicial overreach 
• Judicial activism: Judicial activism is a judicial philosophy that motivates judges to depart from the traditional 
precedents in favour of progressive and new social policies. Judicial activism is manifested when the Supreme 
Court (or High Court) becomes an activist and compels the authority to act and sometimes also direct the 
government, government policies and also administration.   
o Instances of judicial Activism by the Supreme Court include 
? Directing the Centre to create a new policy to handle drought 
? Directing the Centre to set up a bad loans panel 
? Reforming Board for the Control of Cricket in India (a private body) 
• Judicial Overreach: There is a very thin line between activism and overreach. Judicial Overreach refers to an 
extreme form of judicial activism where arbitrary and unreasonable interventions are made by the judiciary 
into the domain of the legislature or executive. This is a situation where the court encroaches upon the role 
of the legislature by making laws. Instances of judicial overreach by the Supreme Court include 
o Denying the executive any role in the appointment of judges by instituting collegiums (an extra-
constitutional body).  
o Invalidating the National Judicial Accountability Commission Act, 2014 seeking to ensure transparency 
and accountability in higher judiciary. 
 
 
4                                                                               www.visionias.in                                                                        ©Vision IAS  
Causes of Judicial activism and Judicial Overreach:  
• Asymmetry of power: Supreme Court is the most powerful branch of governance. It’s every judgment is 
binding on the other two branches (legislature and executive) and it can strike down their actions as well as 
their laws.  
• Public Interest Litigation (PIL):  Introduction of the concept of PIL did away with the doctrine of ‘locus standi’ 
(no one except the affected person can approach a court for a legal remedy).  PIL permitted any member of 
the society to file a case for appropriate directions against any injustice. Consequently, the expectations of the 
public went high.  
o This resulted in the demands for judicial intervention to improve the administration by giving 
appropriate directions for ensuring compliance with statutory and constitutional prescriptions.  
o Thus, PIL introduced a new dimension to the judiciary's involvement in public administration.  
• Lackadaisical approach of other organs: Lax functioning of the legislature and executive may result in 
corruption, delay, non-responsiveness, or inefficiency in the governance. These things create a vacuum in 
governance. Most of the time such vacuums are filled by the judiciary.  
o For example:  The 1997 Vishakha guidelines for the prevention of sexual harassment of women at the 
workplace were an outcome of the inability of the legislature to address this matter. 
• Other factors: Growing consciousness of people for their rights, globalization, active media and civil society 
organizations, concerns for the environment among others are also considered important reasons for judicial 
activism and judicial overreach.   
Concerns over Judicial overreach 
Through, judicial activism the Supreme Court has done a tremendous amount of good. However, in many cases; 
the judiciary has used excess powers which can never be treated as judicial adjudication and even within the 
normal bounds of judicial activism. Such judicial overreach has given rise to the following concerns: 
• Undermining the doctrine of the separation of power: Under the Constitution, all the organs of the State 
have their own broad spheres of operation. The power vested in the Supreme Court through Article 142 of the 
Constitution is extraordinary.  
o Frequent use of this power, to issue judicial decrees, is considered as a violation of the doctrine of the 
separation of power.  
• Negligence of the challenges faced by legislature and Executive: The work of Legislature and executive is a 
challenging one. This is because their works depend upon the 4F i.e. Fund, function, framework, and 
functionary. Sometimes the judiciary passes the order without keeping in mind all these 4F. Such orders may 
harm the economy which can impact the overall well being of the people.  
o For example: Cancelling of coal blocks allocations and spectrum allocations are seen as the major cause 
of poor health of the financial institutions of the country.  
• Lack of accountability of the judiciary: Judiciary as an institution is not accountable to the people in the same 
way as the legislature and the executive. Further, the judiciary also has the power to punish for ‘Contempt of 
court.’ This way the judiciary may evade public criticism for many of its actions.  
• Threat to the credibility of the judiciary: Entry into the legislative domain and inability to uphold the law may 
diminish the image of the judiciary. 
Way ahead  
The Supreme Court has, on various occasions, highlighted the importance of judicial restraint. The judiciary must 
therefore exercise self-restraint and eschew the temptation to act as a super-legislature.  
Judicial activism is appropriate when it is in the domain of legitimate judicial review. However, it should not be a 
norm nor should it result in judicial overreach. 
1.2. REGULATION OF NGO’S IN INDIA 
Why in news? 
Recently, the Ministry of Home Affairs (MHA) tightened oversight on funds received by non-governmental 
organisations (NGOs). 
Page 3


 
3                                                                               www.visionias.in                                                                        ©Vision IAS  
1. POLITY AND GOVERNANCE 
1.1. JUDICIAL ACTIVISM AND JUDICIAL OVERREACH 
Why in news? 
The act of the Supreme Court staying implementation of three farm laws was seen by many as an act of judicial 
activism/overreach.  
Judicial activism and Judicial overreach 
• Judicial activism: Judicial activism is a judicial philosophy that motivates judges to depart from the traditional 
precedents in favour of progressive and new social policies. Judicial activism is manifested when the Supreme 
Court (or High Court) becomes an activist and compels the authority to act and sometimes also direct the 
government, government policies and also administration.   
o Instances of judicial Activism by the Supreme Court include 
? Directing the Centre to create a new policy to handle drought 
? Directing the Centre to set up a bad loans panel 
? Reforming Board for the Control of Cricket in India (a private body) 
• Judicial Overreach: There is a very thin line between activism and overreach. Judicial Overreach refers to an 
extreme form of judicial activism where arbitrary and unreasonable interventions are made by the judiciary 
into the domain of the legislature or executive. This is a situation where the court encroaches upon the role 
of the legislature by making laws. Instances of judicial overreach by the Supreme Court include 
o Denying the executive any role in the appointment of judges by instituting collegiums (an extra-
constitutional body).  
o Invalidating the National Judicial Accountability Commission Act, 2014 seeking to ensure transparency 
and accountability in higher judiciary. 
 
 
4                                                                               www.visionias.in                                                                        ©Vision IAS  
Causes of Judicial activism and Judicial Overreach:  
• Asymmetry of power: Supreme Court is the most powerful branch of governance. It’s every judgment is 
binding on the other two branches (legislature and executive) and it can strike down their actions as well as 
their laws.  
• Public Interest Litigation (PIL):  Introduction of the concept of PIL did away with the doctrine of ‘locus standi’ 
(no one except the affected person can approach a court for a legal remedy).  PIL permitted any member of 
the society to file a case for appropriate directions against any injustice. Consequently, the expectations of the 
public went high.  
o This resulted in the demands for judicial intervention to improve the administration by giving 
appropriate directions for ensuring compliance with statutory and constitutional prescriptions.  
o Thus, PIL introduced a new dimension to the judiciary's involvement in public administration.  
• Lackadaisical approach of other organs: Lax functioning of the legislature and executive may result in 
corruption, delay, non-responsiveness, or inefficiency in the governance. These things create a vacuum in 
governance. Most of the time such vacuums are filled by the judiciary.  
o For example:  The 1997 Vishakha guidelines for the prevention of sexual harassment of women at the 
workplace were an outcome of the inability of the legislature to address this matter. 
• Other factors: Growing consciousness of people for their rights, globalization, active media and civil society 
organizations, concerns for the environment among others are also considered important reasons for judicial 
activism and judicial overreach.   
Concerns over Judicial overreach 
Through, judicial activism the Supreme Court has done a tremendous amount of good. However, in many cases; 
the judiciary has used excess powers which can never be treated as judicial adjudication and even within the 
normal bounds of judicial activism. Such judicial overreach has given rise to the following concerns: 
• Undermining the doctrine of the separation of power: Under the Constitution, all the organs of the State 
have their own broad spheres of operation. The power vested in the Supreme Court through Article 142 of the 
Constitution is extraordinary.  
o Frequent use of this power, to issue judicial decrees, is considered as a violation of the doctrine of the 
separation of power.  
• Negligence of the challenges faced by legislature and Executive: The work of Legislature and executive is a 
challenging one. This is because their works depend upon the 4F i.e. Fund, function, framework, and 
functionary. Sometimes the judiciary passes the order without keeping in mind all these 4F. Such orders may 
harm the economy which can impact the overall well being of the people.  
o For example: Cancelling of coal blocks allocations and spectrum allocations are seen as the major cause 
of poor health of the financial institutions of the country.  
• Lack of accountability of the judiciary: Judiciary as an institution is not accountable to the people in the same 
way as the legislature and the executive. Further, the judiciary also has the power to punish for ‘Contempt of 
court.’ This way the judiciary may evade public criticism for many of its actions.  
• Threat to the credibility of the judiciary: Entry into the legislative domain and inability to uphold the law may 
diminish the image of the judiciary. 
Way ahead  
The Supreme Court has, on various occasions, highlighted the importance of judicial restraint. The judiciary must 
therefore exercise self-restraint and eschew the temptation to act as a super-legislature.  
Judicial activism is appropriate when it is in the domain of legitimate judicial review. However, it should not be a 
norm nor should it result in judicial overreach. 
1.2. REGULATION OF NGO’S IN INDIA 
Why in news? 
Recently, the Ministry of Home Affairs (MHA) tightened oversight on funds received by non-governmental 
organisations (NGOs). 
 
5                                                                               www.visionias.in                                                                        ©Vision IAS  
More about News 
• MHA has laid out a series of guidelines and charter to make NGOs and banks comply with new provisions of 
the amended Foreign Contribution (Regulation) Act, 2010 (FCRA). 
• The charter for banks says that “donations received in Indian rupees” by NGOs from “any foreign source even 
if that source is located in India at the time of such donation” should be treated as “foreign contribution”. 
• Also, it stated foreign contribution has to be received only through banking channels and any violation by the 
NGO or by the bank may invite penal provisions of FCRA. 
NGOs and their importance 
• NGO is defined by the World Bank as 
a not-for-profit organization that 
pursue activities to relieve suffering, 
promote the interests of the poor, 
protect the environment, provide 
basic social services, or undertake 
community development. 
• These organisations are not a part of 
the government, but have a legal 
status and are registered as Trust, 
Society or Private Limited Non-Profit 
Company. 
• Constitutionally NGOs are backed by:  
o Article 19(1)(c) which allows the 
right to form associations,  
o Article 43 to promote 
cooperatives in rural areas, 
o Concurrent List mentions 
charitable institutions, 
charitable and religious 
institutions. 
Need to regulate NGOs 
• Check misuse of foreign funds: 
Governments are trying to check the misuse of foreign funding because if unchecked, can hamper the 
country's sovereignty and foreign money can be used to influence policy and political discourse in India. 
o For this reason, the government has banned 14,500 NGOs, registered under FCRA from receiving foreign 
funds. 
• Non-compliance: Less than 10% of NGOs have complied with the rules and more than 90% do not submit their 
balance sheets. They are supposed to submit statements with the registrar of societies but they did not. 
• Hampering development projects: According to the Intelligence Bureau report, NGOs such as Greenpeace, 
Cordaid and Amnesty are serving as tools for foreign policy interests of western governments. They are also 
accused of organising agitations and scuttling development projects in India which cost India’s GDP 2-3% per 
year.  
• Religious and cultural encroachment: NGOs are often seen as encroaching on tradition and culture of the 
people as well as misused their influence to sell foreign narratives, push vested interests and promote religious 
conversion. 
o Government has barred ‘Compassion International’ from funding Indian NGOs without its permission over 
allegations of religious conversions. 
Provisions regarding Regulation of NGO in India 
• Foreign Exchange Management Act (FEMA), 1999: There are certain NGOs that are registered under FEMA 
and continue to disburse foreign funds to various associations in India. 
o FEMA is regulated by the Ministry of Finance and was introduced to consolidate and amend the law 
relating to foreign exchange with the objective of facilitating external trade and payments. 
Page 4


 
3                                                                               www.visionias.in                                                                        ©Vision IAS  
1. POLITY AND GOVERNANCE 
1.1. JUDICIAL ACTIVISM AND JUDICIAL OVERREACH 
Why in news? 
The act of the Supreme Court staying implementation of three farm laws was seen by many as an act of judicial 
activism/overreach.  
Judicial activism and Judicial overreach 
• Judicial activism: Judicial activism is a judicial philosophy that motivates judges to depart from the traditional 
precedents in favour of progressive and new social policies. Judicial activism is manifested when the Supreme 
Court (or High Court) becomes an activist and compels the authority to act and sometimes also direct the 
government, government policies and also administration.   
o Instances of judicial Activism by the Supreme Court include 
? Directing the Centre to create a new policy to handle drought 
? Directing the Centre to set up a bad loans panel 
? Reforming Board for the Control of Cricket in India (a private body) 
• Judicial Overreach: There is a very thin line between activism and overreach. Judicial Overreach refers to an 
extreme form of judicial activism where arbitrary and unreasonable interventions are made by the judiciary 
into the domain of the legislature or executive. This is a situation where the court encroaches upon the role 
of the legislature by making laws. Instances of judicial overreach by the Supreme Court include 
o Denying the executive any role in the appointment of judges by instituting collegiums (an extra-
constitutional body).  
o Invalidating the National Judicial Accountability Commission Act, 2014 seeking to ensure transparency 
and accountability in higher judiciary. 
 
 
4                                                                               www.visionias.in                                                                        ©Vision IAS  
Causes of Judicial activism and Judicial Overreach:  
• Asymmetry of power: Supreme Court is the most powerful branch of governance. It’s every judgment is 
binding on the other two branches (legislature and executive) and it can strike down their actions as well as 
their laws.  
• Public Interest Litigation (PIL):  Introduction of the concept of PIL did away with the doctrine of ‘locus standi’ 
(no one except the affected person can approach a court for a legal remedy).  PIL permitted any member of 
the society to file a case for appropriate directions against any injustice. Consequently, the expectations of the 
public went high.  
o This resulted in the demands for judicial intervention to improve the administration by giving 
appropriate directions for ensuring compliance with statutory and constitutional prescriptions.  
o Thus, PIL introduced a new dimension to the judiciary's involvement in public administration.  
• Lackadaisical approach of other organs: Lax functioning of the legislature and executive may result in 
corruption, delay, non-responsiveness, or inefficiency in the governance. These things create a vacuum in 
governance. Most of the time such vacuums are filled by the judiciary.  
o For example:  The 1997 Vishakha guidelines for the prevention of sexual harassment of women at the 
workplace were an outcome of the inability of the legislature to address this matter. 
• Other factors: Growing consciousness of people for their rights, globalization, active media and civil society 
organizations, concerns for the environment among others are also considered important reasons for judicial 
activism and judicial overreach.   
Concerns over Judicial overreach 
Through, judicial activism the Supreme Court has done a tremendous amount of good. However, in many cases; 
the judiciary has used excess powers which can never be treated as judicial adjudication and even within the 
normal bounds of judicial activism. Such judicial overreach has given rise to the following concerns: 
• Undermining the doctrine of the separation of power: Under the Constitution, all the organs of the State 
have their own broad spheres of operation. The power vested in the Supreme Court through Article 142 of the 
Constitution is extraordinary.  
o Frequent use of this power, to issue judicial decrees, is considered as a violation of the doctrine of the 
separation of power.  
• Negligence of the challenges faced by legislature and Executive: The work of Legislature and executive is a 
challenging one. This is because their works depend upon the 4F i.e. Fund, function, framework, and 
functionary. Sometimes the judiciary passes the order without keeping in mind all these 4F. Such orders may 
harm the economy which can impact the overall well being of the people.  
o For example: Cancelling of coal blocks allocations and spectrum allocations are seen as the major cause 
of poor health of the financial institutions of the country.  
• Lack of accountability of the judiciary: Judiciary as an institution is not accountable to the people in the same 
way as the legislature and the executive. Further, the judiciary also has the power to punish for ‘Contempt of 
court.’ This way the judiciary may evade public criticism for many of its actions.  
• Threat to the credibility of the judiciary: Entry into the legislative domain and inability to uphold the law may 
diminish the image of the judiciary. 
Way ahead  
The Supreme Court has, on various occasions, highlighted the importance of judicial restraint. The judiciary must 
therefore exercise self-restraint and eschew the temptation to act as a super-legislature.  
Judicial activism is appropriate when it is in the domain of legitimate judicial review. However, it should not be a 
norm nor should it result in judicial overreach. 
1.2. REGULATION OF NGO’S IN INDIA 
Why in news? 
Recently, the Ministry of Home Affairs (MHA) tightened oversight on funds received by non-governmental 
organisations (NGOs). 
 
5                                                                               www.visionias.in                                                                        ©Vision IAS  
More about News 
• MHA has laid out a series of guidelines and charter to make NGOs and banks comply with new provisions of 
the amended Foreign Contribution (Regulation) Act, 2010 (FCRA). 
• The charter for banks says that “donations received in Indian rupees” by NGOs from “any foreign source even 
if that source is located in India at the time of such donation” should be treated as “foreign contribution”. 
• Also, it stated foreign contribution has to be received only through banking channels and any violation by the 
NGO or by the bank may invite penal provisions of FCRA. 
NGOs and their importance 
• NGO is defined by the World Bank as 
a not-for-profit organization that 
pursue activities to relieve suffering, 
promote the interests of the poor, 
protect the environment, provide 
basic social services, or undertake 
community development. 
• These organisations are not a part of 
the government, but have a legal 
status and are registered as Trust, 
Society or Private Limited Non-Profit 
Company. 
• Constitutionally NGOs are backed by:  
o Article 19(1)(c) which allows the 
right to form associations,  
o Article 43 to promote 
cooperatives in rural areas, 
o Concurrent List mentions 
charitable institutions, 
charitable and religious 
institutions. 
Need to regulate NGOs 
• Check misuse of foreign funds: 
Governments are trying to check the misuse of foreign funding because if unchecked, can hamper the 
country's sovereignty and foreign money can be used to influence policy and political discourse in India. 
o For this reason, the government has banned 14,500 NGOs, registered under FCRA from receiving foreign 
funds. 
• Non-compliance: Less than 10% of NGOs have complied with the rules and more than 90% do not submit their 
balance sheets. They are supposed to submit statements with the registrar of societies but they did not. 
• Hampering development projects: According to the Intelligence Bureau report, NGOs such as Greenpeace, 
Cordaid and Amnesty are serving as tools for foreign policy interests of western governments. They are also 
accused of organising agitations and scuttling development projects in India which cost India’s GDP 2-3% per 
year.  
• Religious and cultural encroachment: NGOs are often seen as encroaching on tradition and culture of the 
people as well as misused their influence to sell foreign narratives, push vested interests and promote religious 
conversion. 
o Government has barred ‘Compassion International’ from funding Indian NGOs without its permission over 
allegations of religious conversions. 
Provisions regarding Regulation of NGO in India 
• Foreign Exchange Management Act (FEMA), 1999: There are certain NGOs that are registered under FEMA 
and continue to disburse foreign funds to various associations in India. 
o FEMA is regulated by the Ministry of Finance and was introduced to consolidate and amend the law 
relating to foreign exchange with the objective of facilitating external trade and payments. 
 
6                                                                               www.visionias.in                                                                        ©Vision IAS  
o However, Separate law the FCRA, 2010 has been enacted under the Ministry of Home Affairs to monitor 
foreign funds donated to NGO’s. 
• Foreign Contribution Regulation Act 2010: Foreign funding of voluntary organizations in India is regulated 
under the FCRA to ensure that the recipients adhere to the stated purpose for which such contribution has 
been obtained. 
o It consolidates the law to regulate the acceptance and utilization of foreign contribution by individuals 
or associations. 
o New rules under FCRA 2020 have the following provisions in relation to regulation of NGO’s: 
? prohibition of transfer of funds from one NGO to another 
? decrease of administrative expenses through foreign funds from 50% to 20%. 
? making Aadhaar mandatory for registration, while in case of a foreigner, they must provide a copy of 
the passport or the Overseas Citizen of India card for identification.   
? the foreign contribution must be received only in an account designated by the bank as ‘FCRA account’ 
in such branch of the State Bank of India, New Delhi 
? Insertion of Rule 9 – which deals with obtaining registration or prior permission to receive foreign 
funds and stop utilisation of foreign funds through enquiry. 
• Accreditation: NITI Aayog has been appointed as the nodal agency for the purpose of registration and 
accreditation of NGOs seeking funding from the Government of India.  
o The Aayog has been also tasked with maintaining database systems to manage and disseminate 
information relating to NGOs. 
• Bombay shops & Establishment Act 1948: NGO registered under the Bombay shops & establishment Act, 
must pay Minimum Wage to that employee irrespective of the strength of employment. 
• Right to Information Act, 2005: NGOs receiving substantial financing from the government is bound to give 
information to the public under the RTI Act.   
Issues faced by NGO’s 
• Lacks fund accessibility: With new rules, many NGO’s will not be able to access foreign funds because the 
scheme under which they receive these funds from donor agencies and larger NGOs, known as ‘regranting’ 
has been banned. 
o Also, over-dependence on funds from the government dilutes the willingness of NGOs to speak out against 
the government. 
• Restriction to explore: The amount NGOs can spend on administration has been cut from 50% to 20%, which 
mean many smaller NGOs will not be able to employ enough staff, hire experts and implement strategies they 
require to grow.  
• Increased cost of transaction and distance: With new rules under FCRA act NGOs will have to open an account 
with a Delhi branch of the State Bank of India. Which could be a thousand kilometers away for many NGO’s 
and increase the transaction cost. 
• Hamper delivery of social welfare schemes: Due to overregulation of NGOs under new FCRA rules will have 
far-reaching the consequences for delivery of government schemes in these fields of education, health and 
social welfare. 
• Accreditation of NGO’s:  It is very difficult for National Accreditation Council to distinguish whether an 
organization wants to work for the cause or has been set up only for the purpose of receiving government 
grants. 
Way Forward 
• A National Accreditation Council consisting of academicians, activist, retired bureaucrats should be 
established to ensure compliance by NGOs. 
• There should be better coordination between Government and NGOs to delivery of social welfare schemes 
efficiently rather than hampering their implementation. 
• The role of NGO regulators should be to effectively secure compliance with the laws in a fair, transparent and 
non-partisan manner, free from political influence to enhance public trust and confidence in both the 
regulator and the NGOs.  
Kindly refer to “Foreign Contribution (Regulation) Amendment Act, 2020” article in Monthly October 2020 for 
details on FCRA rules 2020. 
Page 5


 
3                                                                               www.visionias.in                                                                        ©Vision IAS  
1. POLITY AND GOVERNANCE 
1.1. JUDICIAL ACTIVISM AND JUDICIAL OVERREACH 
Why in news? 
The act of the Supreme Court staying implementation of three farm laws was seen by many as an act of judicial 
activism/overreach.  
Judicial activism and Judicial overreach 
• Judicial activism: Judicial activism is a judicial philosophy that motivates judges to depart from the traditional 
precedents in favour of progressive and new social policies. Judicial activism is manifested when the Supreme 
Court (or High Court) becomes an activist and compels the authority to act and sometimes also direct the 
government, government policies and also administration.   
o Instances of judicial Activism by the Supreme Court include 
? Directing the Centre to create a new policy to handle drought 
? Directing the Centre to set up a bad loans panel 
? Reforming Board for the Control of Cricket in India (a private body) 
• Judicial Overreach: There is a very thin line between activism and overreach. Judicial Overreach refers to an 
extreme form of judicial activism where arbitrary and unreasonable interventions are made by the judiciary 
into the domain of the legislature or executive. This is a situation where the court encroaches upon the role 
of the legislature by making laws. Instances of judicial overreach by the Supreme Court include 
o Denying the executive any role in the appointment of judges by instituting collegiums (an extra-
constitutional body).  
o Invalidating the National Judicial Accountability Commission Act, 2014 seeking to ensure transparency 
and accountability in higher judiciary. 
 
 
4                                                                               www.visionias.in                                                                        ©Vision IAS  
Causes of Judicial activism and Judicial Overreach:  
• Asymmetry of power: Supreme Court is the most powerful branch of governance. It’s every judgment is 
binding on the other two branches (legislature and executive) and it can strike down their actions as well as 
their laws.  
• Public Interest Litigation (PIL):  Introduction of the concept of PIL did away with the doctrine of ‘locus standi’ 
(no one except the affected person can approach a court for a legal remedy).  PIL permitted any member of 
the society to file a case for appropriate directions against any injustice. Consequently, the expectations of the 
public went high.  
o This resulted in the demands for judicial intervention to improve the administration by giving 
appropriate directions for ensuring compliance with statutory and constitutional prescriptions.  
o Thus, PIL introduced a new dimension to the judiciary's involvement in public administration.  
• Lackadaisical approach of other organs: Lax functioning of the legislature and executive may result in 
corruption, delay, non-responsiveness, or inefficiency in the governance. These things create a vacuum in 
governance. Most of the time such vacuums are filled by the judiciary.  
o For example:  The 1997 Vishakha guidelines for the prevention of sexual harassment of women at the 
workplace were an outcome of the inability of the legislature to address this matter. 
• Other factors: Growing consciousness of people for their rights, globalization, active media and civil society 
organizations, concerns for the environment among others are also considered important reasons for judicial 
activism and judicial overreach.   
Concerns over Judicial overreach 
Through, judicial activism the Supreme Court has done a tremendous amount of good. However, in many cases; 
the judiciary has used excess powers which can never be treated as judicial adjudication and even within the 
normal bounds of judicial activism. Such judicial overreach has given rise to the following concerns: 
• Undermining the doctrine of the separation of power: Under the Constitution, all the organs of the State 
have their own broad spheres of operation. The power vested in the Supreme Court through Article 142 of the 
Constitution is extraordinary.  
o Frequent use of this power, to issue judicial decrees, is considered as a violation of the doctrine of the 
separation of power.  
• Negligence of the challenges faced by legislature and Executive: The work of Legislature and executive is a 
challenging one. This is because their works depend upon the 4F i.e. Fund, function, framework, and 
functionary. Sometimes the judiciary passes the order without keeping in mind all these 4F. Such orders may 
harm the economy which can impact the overall well being of the people.  
o For example: Cancelling of coal blocks allocations and spectrum allocations are seen as the major cause 
of poor health of the financial institutions of the country.  
• Lack of accountability of the judiciary: Judiciary as an institution is not accountable to the people in the same 
way as the legislature and the executive. Further, the judiciary also has the power to punish for ‘Contempt of 
court.’ This way the judiciary may evade public criticism for many of its actions.  
• Threat to the credibility of the judiciary: Entry into the legislative domain and inability to uphold the law may 
diminish the image of the judiciary. 
Way ahead  
The Supreme Court has, on various occasions, highlighted the importance of judicial restraint. The judiciary must 
therefore exercise self-restraint and eschew the temptation to act as a super-legislature.  
Judicial activism is appropriate when it is in the domain of legitimate judicial review. However, it should not be a 
norm nor should it result in judicial overreach. 
1.2. REGULATION OF NGO’S IN INDIA 
Why in news? 
Recently, the Ministry of Home Affairs (MHA) tightened oversight on funds received by non-governmental 
organisations (NGOs). 
 
5                                                                               www.visionias.in                                                                        ©Vision IAS  
More about News 
• MHA has laid out a series of guidelines and charter to make NGOs and banks comply with new provisions of 
the amended Foreign Contribution (Regulation) Act, 2010 (FCRA). 
• The charter for banks says that “donations received in Indian rupees” by NGOs from “any foreign source even 
if that source is located in India at the time of such donation” should be treated as “foreign contribution”. 
• Also, it stated foreign contribution has to be received only through banking channels and any violation by the 
NGO or by the bank may invite penal provisions of FCRA. 
NGOs and their importance 
• NGO is defined by the World Bank as 
a not-for-profit organization that 
pursue activities to relieve suffering, 
promote the interests of the poor, 
protect the environment, provide 
basic social services, or undertake 
community development. 
• These organisations are not a part of 
the government, but have a legal 
status and are registered as Trust, 
Society or Private Limited Non-Profit 
Company. 
• Constitutionally NGOs are backed by:  
o Article 19(1)(c) which allows the 
right to form associations,  
o Article 43 to promote 
cooperatives in rural areas, 
o Concurrent List mentions 
charitable institutions, 
charitable and religious 
institutions. 
Need to regulate NGOs 
• Check misuse of foreign funds: 
Governments are trying to check the misuse of foreign funding because if unchecked, can hamper the 
country's sovereignty and foreign money can be used to influence policy and political discourse in India. 
o For this reason, the government has banned 14,500 NGOs, registered under FCRA from receiving foreign 
funds. 
• Non-compliance: Less than 10% of NGOs have complied with the rules and more than 90% do not submit their 
balance sheets. They are supposed to submit statements with the registrar of societies but they did not. 
• Hampering development projects: According to the Intelligence Bureau report, NGOs such as Greenpeace, 
Cordaid and Amnesty are serving as tools for foreign policy interests of western governments. They are also 
accused of organising agitations and scuttling development projects in India which cost India’s GDP 2-3% per 
year.  
• Religious and cultural encroachment: NGOs are often seen as encroaching on tradition and culture of the 
people as well as misused their influence to sell foreign narratives, push vested interests and promote religious 
conversion. 
o Government has barred ‘Compassion International’ from funding Indian NGOs without its permission over 
allegations of religious conversions. 
Provisions regarding Regulation of NGO in India 
• Foreign Exchange Management Act (FEMA), 1999: There are certain NGOs that are registered under FEMA 
and continue to disburse foreign funds to various associations in India. 
o FEMA is regulated by the Ministry of Finance and was introduced to consolidate and amend the law 
relating to foreign exchange with the objective of facilitating external trade and payments. 
 
6                                                                               www.visionias.in                                                                        ©Vision IAS  
o However, Separate law the FCRA, 2010 has been enacted under the Ministry of Home Affairs to monitor 
foreign funds donated to NGO’s. 
• Foreign Contribution Regulation Act 2010: Foreign funding of voluntary organizations in India is regulated 
under the FCRA to ensure that the recipients adhere to the stated purpose for which such contribution has 
been obtained. 
o It consolidates the law to regulate the acceptance and utilization of foreign contribution by individuals 
or associations. 
o New rules under FCRA 2020 have the following provisions in relation to regulation of NGO’s: 
? prohibition of transfer of funds from one NGO to another 
? decrease of administrative expenses through foreign funds from 50% to 20%. 
? making Aadhaar mandatory for registration, while in case of a foreigner, they must provide a copy of 
the passport or the Overseas Citizen of India card for identification.   
? the foreign contribution must be received only in an account designated by the bank as ‘FCRA account’ 
in such branch of the State Bank of India, New Delhi 
? Insertion of Rule 9 – which deals with obtaining registration or prior permission to receive foreign 
funds and stop utilisation of foreign funds through enquiry. 
• Accreditation: NITI Aayog has been appointed as the nodal agency for the purpose of registration and 
accreditation of NGOs seeking funding from the Government of India.  
o The Aayog has been also tasked with maintaining database systems to manage and disseminate 
information relating to NGOs. 
• Bombay shops & Establishment Act 1948: NGO registered under the Bombay shops & establishment Act, 
must pay Minimum Wage to that employee irrespective of the strength of employment. 
• Right to Information Act, 2005: NGOs receiving substantial financing from the government is bound to give 
information to the public under the RTI Act.   
Issues faced by NGO’s 
• Lacks fund accessibility: With new rules, many NGO’s will not be able to access foreign funds because the 
scheme under which they receive these funds from donor agencies and larger NGOs, known as ‘regranting’ 
has been banned. 
o Also, over-dependence on funds from the government dilutes the willingness of NGOs to speak out against 
the government. 
• Restriction to explore: The amount NGOs can spend on administration has been cut from 50% to 20%, which 
mean many smaller NGOs will not be able to employ enough staff, hire experts and implement strategies they 
require to grow.  
• Increased cost of transaction and distance: With new rules under FCRA act NGOs will have to open an account 
with a Delhi branch of the State Bank of India. Which could be a thousand kilometers away for many NGO’s 
and increase the transaction cost. 
• Hamper delivery of social welfare schemes: Due to overregulation of NGOs under new FCRA rules will have 
far-reaching the consequences for delivery of government schemes in these fields of education, health and 
social welfare. 
• Accreditation of NGO’s:  It is very difficult for National Accreditation Council to distinguish whether an 
organization wants to work for the cause or has been set up only for the purpose of receiving government 
grants. 
Way Forward 
• A National Accreditation Council consisting of academicians, activist, retired bureaucrats should be 
established to ensure compliance by NGOs. 
• There should be better coordination between Government and NGOs to delivery of social welfare schemes 
efficiently rather than hampering their implementation. 
• The role of NGO regulators should be to effectively secure compliance with the laws in a fair, transparent and 
non-partisan manner, free from political influence to enhance public trust and confidence in both the 
regulator and the NGOs.  
Kindly refer to “Foreign Contribution (Regulation) Amendment Act, 2020” article in Monthly October 2020 for 
details on FCRA rules 2020. 
 
7                                                                               www.visionias.in                                                                        ©Vision IAS  
1.3. REGULATION OF BIG TECH COMPANIES 
Why in news? 
There are multiple investigations worldwide going on the abuse of monopolistic power by the Big Tech firms like 
Facebook, Google etc.  
Background 
• Although many of Big tech companies started in the USA, 
they have established a global presence, and are 
continually looking to expand into markets currently not 
penetrated. 
• Due to their dominance in the technology market, big tech 
companies not only influence the economy but also 
society. 
• These companies are shaping the way our society is 
progressing. 
• However, in recent times there have seen mounting 
evidence of the spread of hate speech, disinformation, and 
conspiracy theories by these major internet platforms. 
• This has also led to various antitrust cases being built and 
investigated against them, calling upon their role and 
regulation of big tech companies to ensure their accountability in this emerging system. 
Role played by Big tech companies in Society 
Positive role Negative role 
• Right to free speech and expression: Big Tech 
companies provide citizens powerful platforms 
to transact, express themselves, seek out 
information, and consume entertainment.  
o Social media companies like Facebook, 
WhatsApp have democratised 
communications, weakening the power of 
traditional media to influence public 
opinion. 
• Doorstep services: Big Tech has brought 
doorstep delivery of an extraordinary range of 
goods, services, and entertainment, which made 
it possible to live modern life through the Covid-
19 pandemic.  
• Technology and innovation: The superior use of 
technology by big tech companies and 
innovations according to need provides 
diversification and efficiency to consumers. E.g. 
Digitisation of financial services. 
• Power without accountability: Big Tech companies have 
been accumulating vast, unregulated powers controlling the 
media and economic power without any accountability. E.g. 
Allegation on Big tech influencing elections in the US and 
Europe. 
• Anti-competitive behaviour: E-commerce big techs pricing 
and promotion decisions can be managed subtly to favour 
some merchants and their private label products which 
breaks millions of small merchants. 
o This could also lead to the acquisition of smaller, fast-
growing companies, thereby snuffing out the 
competition before it gets a chance to establish itself. E.g. 
Acquisition of WhatsApp and Instagram by Facebook. 
• Incite public behaviour: Big techs handling social media 
platforms like, Facebook, Twitter have the power to 
manipulate narratives, spread hate speech, disinformation 
etc and therefore, incite public behaviour, which can become 
a dangerous force multiplier for fomenting hate and violence.  
o Example: Centre had to recently issue a notice to Twitter 
for tweets with 'farmer genocide' hashtag. 
• Cybercrimes: The potential of the Internet and its offshoots 
as in big techs to disseminate potentially harmful content and 
cybercrimes such as rumours, inflammatory, provocative 
messages and child pornography. 
• Violative of privacy: in absence of data privacy laws, the 
personal data of users is harnessed by the platforms without 
seeking meaningful consent from the users. 
In the light of the above negative role played by big tech companies, our current legal and technical framework 
has to evolve to regulate all these emerging Big Tech powers. 
 
Anti-trust laws 
• Antitrust laws are those laws that prevents 
companies from working together to control 
prices unfairly or to create a monopoly. 
• India’s antitrust law, The Competition Act, 
2002, was fully constituted in 2009 replacing 
the Monopolistic and Restrictive Trade 
Practices Act of 1969. 
• Competition Act monitors any economic 
activity that monopolizes competition 
within the market and aims to protect 
consumers and small enterprises, and 
ensures the freedom of trade. 
• Competition Commission of India has been 
setup under 2002 act to regulate anti-
competitive activity in the country. 
Read More
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