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CHAPTER - 1
HISTORICAL BACKGROUND OF THE INDIAN CONSTITUTION
Background:
• The British came to India in 1600 AD as traders in the form of East India Company.
• East India Company was also known as East India Trading Company or English East India Company.
• The East India Company was founded in the year 1600 for persuading the trade with East Indies (South Asia and South East Asia).
• But the East India Company traded mainly in the Indian subcontinent and China.
• The East India Company has exclusive rights to trade in India.
• In the year 1765 the East India Company obtained “Diwani” (Rights over revenue and civil justice) of Bengal, Bihar and Orissa.
• In the year 1858 after the Sepoy mutiny, British crown abolished East India company and assumed direct responsibility for the governance of India.
• This rule continued up to August 15, 1947. (Till India get independence).
THE REGULATING ACT OF 1773
• The company ruled from 1773 to 1858 till it has been abolished by the British Crown
• This was the first step taken by British Government to control and regulate the affairs of East India Company in India.
• The political and administrative functions of the company were recognized for the first time.
• It laid the foundation of central administration in India. Features of the act:
• The Governor of Bengal was designated as the Governor-General of Bengal and the
Executive council of the 4 members was created to assist the Governor-General.
• The first Governor-General of Bengal was Lord Warren Hastings.
• The 1773 act made the Governors of Bombay and Madras presidencies subordinate to the Governor-General of Bengal.
• The act provided for the establishment of Supreme Court at Calcutta in the year 1774. The Supreme Court comprised of a Chief Justice and 3 other judges.
• This act prohibited the servants of the company from engaging in any private trade or accepting presentations (gifts) or bribes from the natives (local people).
• The 1773 act strengthened the control of British government over the company by requiring the court the Directors to report on its revenue, civil and military affairs in India.
• The 1781 act of Settlement – passed by the British parliament to rectify the defects of 1773 Act.
PITTS INDIA ACT OF 1784:
• The Pitts India act distinguished between commercial and political functions of the company.
• The Court of Directors entrusted with the responsibility to manage commercial affairs of the company.
• The Board of control was entrusted with the responsibility of political affairs.
• Thus the Pitts India act established the dual (double) government.
• The company territories in India were for the first time called British possessions in India.
CHARTER ACT OF 1833
• This is the final step towards centralization [concentration of power in single authority] of power in India.
• The Governor-General of Bengal was made the Governor-General of India.
• The first Governor-General of India was Lord William Bentinck.
• The laws that were made prior to 1833 were called regulation.
• The laws that were made under 1833 charter were called Acts.
• The East India Company purely became the administrative body.
• This act provided for the company’s territories in India were held by it in trust for His Majesty, his heirs and successors.
• The superintendence, direction and control of whole civil and military government of all the British territories and revenues in India were expressly vested in ‘The Governor General of India in Council”.
• For the first time the Governor-General’s government was known as the Government of India.
• The council was known as ‘Indian Council”.
• The council was enlarged for legislative work by the addition of a Law member in addition to the existing three.
• This act attempted to introduce a system of open competition for selection of civil servants.
(This is an attempt only; open competition system was introduced later).
• Indians were not debarred from holding any place, office and employment under the company, but negated because of the opposition from the court of directors.
CHARTER ACT OF 1853:
• This was the last charter act passed by the British Parliament between 1793 and 1853.
• This act created the Legislative council.
• The legislative council functioned as a mini Parliament.
• The Charter Act of 1853 introduced Open competition system of selection and recruitment of civil servants.
• This was also open to Indians. (Indians were permitted to take part in the competitive examination).
• Accordingly Macaulay Committee (Committee on the Indian civil services) was appointed in the year 1854.
• Satyendra Nath Tagore was the first Indian to join the civil services.
THE CROWN RULE (1858 – 1947)
THE GOVERNMENT OF INDIA ACT 1858
• This came into being after the Sepoy Mutiny of 1857.
• This act is also known as the Act for good government in India.
• This is the first statute enacted by the Parliament for the governance of India under the direct rule of the British government.
• The Act abolished the East India Company and transferred the powers of government, territories and revenues to the British Crown.
• The British crown assumed sovereignty over India from the East India Company.
• The designation of Governor-General of India was changed to the Viceroy of India.
• The last Governor-General of India was Lord Canning.
• The first Viceroy of India was Lord Canning.
• It ended the system of double government by abolishing the Board of Control and Court of Directors.
• A new position called Secretary of State for India was created. He is the member of the British cabinet and responsible to British Parliament.
• The powers of the crown were exercised by the Secretary of State for India.
• The Secretary of state for India was assisted by a council called ‘Council of India’ that contained 15 members.
• The Council of India was composed of exclusively of people from England.
The secretary of state for India who was responsible to the British Parliament governed India through the Governor-General, assisted by an executive council which consisted of higher officials of the government.
• The administration of the country was unitary and rigidly centralized through 1858 Act.
• The provincial governments though existing headed by a Governor were mere the agents of the Government of India and functioned under the direct control of the Governor-General.
• There was no separation of functions. The legislative, executive, civil and military authority was vested in Governor-General in council of India who was responsible to the secretary of state for India.
• The control of the secretary of state of India over the Indian administration was absolute.
• The machinery of the administration was totally unconcerned about the public opinion.
INDIAN COUNCILS ACT OF 1861:
• This act introduced a grain of popular element by including some non-official members in the executive council while transacting legislative business like legislative council.
• The Viceroy of India would nominate Indians to the legislative council.
• The functions of nominated members were confined exclusively to the consideration of the legislative proposals placed before it by the Governor-General (Viceroy).
• Even in the provinces for initiating legislations the prior sanction of the GovernorGeneral (Viceroy) was necessary.
• In the year 1862 Lord Canning (first Viceroy of India) nominated Raja of Benaras, the Maharaja of Patiala and Sir Dinakar Rao to the legislative council.
• This act restored the powers of Bombay and Bengal presidencies.
• The Legislative Council for Bengal was created in the year 1862.
• The Legislative council for NWFP (North West Frontier Province) was created in the year 1866.
• NWFP is in present day Pakistan one of the four provinces of Pakistan, located in the north western region of the country. The name is changed to “KhyberPakhtoonkhwa’’.
• The Legislative Council for Punjab was created in the year 1897.
• This act gave recognition to the portfolio system. (Portfolio system means placing each member in charge of a specific department).
Lord canning introduced Portfolio system in the year 1859.
•
between the prorogation of the Parliament and its reassembly is known
as recess.
The timeframe
recess the Parliament will not be in Session.
Means during
What is recess? It is the time period between Prorogation and Session.
Organization to regulate itself. Article 123 says, Power of President to
promulgate Ordinances during recess of Parliament.
Ordinance may refer to: Law , A rule established by an
What is Ordinance?
This act also empowered the Viceroy to issue ordinances.
THE INDIAN COUNCILS ACT OF 1892
• This act gave the legislative councils the power of discussing the budget and addressing questions to the executive.
• This act also provided for the nomination of some non-official members to the legislative councils by the Viceroy.
• Provided for indirect election but the term Election was not used in the act.
INDIAN COUNCILS ACT OF 1909 (MORLEY – MINTO REFORMS):
• Minto was the then Viceroy.
• Morley was the then Secretary of State.
• This act increased the size of legislative councils by including elected non-official members.
• An element of election was introduced at the central legislative council but the official majority was maintained.
• The members of the legislative council were allowed to ask supplementary questions.
• The members were allowed to move the resolutions on budget or on any matter of public interest except subjects like armed forces, Foreign affairs and Indian states.
• This act provided the association of Indians with executive council of the viceroy and the Governor.
• The first Indian to join the Viceroys Executive council was Satyendra Prasad Sinha.
The 1909 act introduced a system of communal representation for Muslims by accepting the concept of ‘Separate Electorate’.
• Under the ‘Separate Electorate’ the Muslim members were to be elected only by Muslim voters.
• For the 1st time the seeds of separatism were sown.
• The 1909 act legalized communalism.
• Minto was regarded as the “Father of Communal Electorate”.
• The Minto-Morley reforms did not aim at establishing a parliamentary system of the government.
• The final decision on all matters was retained in the hands of the irresponsible executive.
THE GOVERNMENT OF INDIA ACT, 1919
• This act came into picture when the Indian National Congress became very active during the 1st
World war and launched the ‘Home Rule’ movement.
• This is also called Montague – Chelmsford reforms.
• Chelmsford was the then Viceroy.
• Montague was the then Secretary of state.
• On August 20, 1917 the British Government made a declaration that the policy of His Majesty’s Government is that of increasing association of Indians in every branch of administration and the gradual development of self-governing of institutions with a view to progressive realization of responsible government in British India as an integral part of the British empire.
• Montagu-Chelmsford were entrusted with the responsibility of formulating proposals for the said policy and the GOI Act, 1919 gave a formal shape to the same.
• The report of Montague-Chelmsford led to the enactment of GOI of 1919.
• The GOI Act 1919 introduced diarchy or dual government.
• The diarchy was introduced at the provinces and not at the centre.
• This act demarcated the central and provincial subjects.
• The provincial subjects were further divided into transferred subjects and reserved subjects.
• Transferred subjects are those subjects that are administered by the Governor with the aid of ministers and responsible to the Legislative Council in which the proportion of elected members was raised to 70 percent.
• Hence, the foundation of responsible government was introduced in the narrow sphere in the form of transferred subjects.
The reserved subjects on the other hand were to be administered by the Governor and his executive council without any responsibility to the Legislature.
• The source of revenue was also divided into 2 categories, so that the provinces could run the administration with the aid of revenue raised by the provinces by themselves.
• Provincial budget was separated from the Central budget.
• The control of the Governor-General over provinces was retained by empowering the Governor to reserve the bill for the consideration of the Governor-General.
• Through the GOI Act of 1919 bicameralism (two houses i.e. Upper and Lower House) was introduced at the centre.
• The Upper House was called Council of state composed of 60 members of whom 34 were elected.
• The lower House was called Legislative Assembly composed of 144 members of whom 104 were elected.
• The powers of both the Upper and Lower Houses were equal except that the power to vote supply (budget) was given only to the Lower House.
• The concept of elections was introduced.
• The Indian Legislative council consists of the Upper House (Council of State) and the Lower house (Legislative Assembly).
• The majority of the members from both the houses are elected directly.
• The act of 1919 extended communal representation for Sikhs, Indian Christians, Europeans and Anglo-Indians. (Remember the 1909 act introduced communal representation only for Muslims and not for all communities). (These are the questions that are asked in the examination, read carefully).
• This act provided for the establishment of Public Service Commission.
• Accordingly the Public Service Commission was set up for recruiting Civil Servants.
• The act of 1919 also provided for the separation of provincial budget from the central Budget. (Province means a smaller area, just like a present day state. Today we have 2 budgets in the country, central and state budgets, this started with the 1919 Act and even after the commencement of the Constitution we continued with the same).
• The 1919 reforms failed to fulfill the aspirations of the people in India and this led to “Swaraj” or “Self-government” agitation under the leadership of Mahatma Gandhi.
• In the year 1927 a statutory commission was appointed under the chairmanship of Simon to inquire into and report on the working of the 1919 Act.
SIMON COMMISSION:
• The Simon Commission was also called Statutory Commission.
• The Simon Commission was appointed by the British Government in November 1927.
• This was a 7 member Commission.
• The Chairman of the Commission was Sir John Simon.
• The purpose of the commission was to report on the condition of India under the new constitution (GOI 1919).
• All the members of the committee were British.
• Hence all the parties including Congress led by Ghandi boycotted the Commission.
• The Simon Commission submitted the report in the year 1930.
• The Simon Commission recommended for the abolition of diarchy.
• This commission also recommended for the continuation of communal electorate.
• The British government convened three round table conferences to consider the proposals of Simon Commission.
• The conferences to be attended by the representatives of British Government, British India and Indian princely states. (Details of the round table conferences read by History Material).
• The three rounds table conferences held between 1930 and 1932.
• Mahatma Gandhi attended the second round table conference only
• NOTE: Gandhi did not attend the 1st and 3rd round table conferences.
• On the basis of these discussions a white paper on constitutional reforms was prepared and the same was submitted to the Parliament.
• The recommendations were incorporated in the GOI Act of 1935.
COMMUNAL AWARD OF 1932:
• On August 4, 1932 the communal award was announced by Ramsay MacDonald (The then British Prime Minister).
• This is meant to provide extending separate electorate to Scheduled Castes.
• In fact the concept of separate electorate for depresses classes was raised by Dr. B.R.Ambedkar.
• The proposal was accepted by the British and announced the Communal award.
• Gandhi opposed this on the grounds that this proposal would disintegrate the Hindu society.
• Mahatma Gandhi began indefinite hunger strike in Yeravada jail (Pune, Maharashtra) against the separate electorate for Scheduled Castes.
POONA PACT OF 1932:
• As Mahatma Gandhi went on to hunger strike Dr Ambedkar was under tremendous pressure to save the life Gandhi.
• Hence Dr. Ambedkar accepted for an agreement.
• This is an agreement between the Dalits (Then called depressed classes) of India led by Dr. B.R.Amdedkar and the upper caste Hindus of India.
• This took place on September 24, 1932 at Yeravada jail.
• Under Poona pact of 1932 there shall be seats reserved for the depressed classes out of general electoral seats in the provincial legislature.
GOVERNMENT OF INDIA ACT OF 1935:
• The GOI Act 1935 prescribed a Federation. The GOI act 1935 divided the powers into
1. Federal List (59)
2. Provincial List (54)
3. Concurrent List (36)
• The residuary powers were vested with the Viceroy.
• The GOI act of 1935 abolished the diarchy in provinces.
• The GOI act of 1935 provided the diarchy at the centre. (This did not come into operation).
• The responsible government was introduced in provinces. The Executive authority of the province was also exercised by the Governor on behalf of the crown and not as a subordinate of the Governor-General.
• The GOI act of 1935 introduced bicameralism (2 house, Upper and lower) in 6 out of 11 provinces. This was Legislative Assembly and the Legislative Council.
• In the rest of the provinces the legislature was unicameral.
• This act extended separate electorate for depressed classes (SC’s), Women and labor.
• This act extended the franchise (Right to vote). With this 10% of the population got the voting right.
• The GOI 1935 granted limited franchise on the basis of tax, property and education.
• The GOI act of 1935 provided for the establishment of Reserve Bank of India (RBI) in the year 1935.
• The GOI act of 1935 provided for the establishment of Provincial and Joint Public Service Commission.
• The GOI act also provided for the establishment of Federal Court.
• The Federal Court was set up in the year 1937 in Delhi.
• The seat of the Federal court was the Chamber of Princes in the Parliament building in Delhi.
• The first Chief Justice of the Federal Court was Maurice Gwyer.
• (Note: The present Supreme Court was established on January 28, 1950).
INDIAN INDEPENDENCE ACT OF 1947:
• On February 20, 1947 the Prime Minister of England Sir Clement Atlee declared that the British rule in India would end by June 30, 1948.
• The Muslim League demanded for the partition.
• On June 3, 1947 the government announced that the constitution is not applicable to unwilling parts of the nation.
• Lord Mount Batten (then Viceroy) put forth the partition plan on the same day. It is called Mountbatten plan. (This is also called June 3 plan).
• This plan was accepted by both congress and Muslim league.
• The Indian Independence Act of 1947 ended the British rule and declared India as an independent and sovereign state from August 15, 1947.
• This act provided for the partition of the country into India and Pakistan.
• The office of Viceroy was abolished and provided for the Governor-General for each dominion (India and Pakistan) appointed by the king.
• This act also empowered the constituent assemblies to frame and adopt any constitution.
• The Central legislature of India composed of the legislative assembly and the council of states ceased to exist on August 14, 1947.
• The Indian Independence Act granted freedom to the princely states either to join India or Pakistan or to remain independent.
• The civil servants were allowed to entitle all the benefits.
• Lord Mountbatten became the first Governor-General of independent India.
• Jawaharlal Nehru was sworn in as the first Prime Minister of India by Lord Mount Batten.
• Muhammad Ali Jinnah became the first Governor-General of Pakistan.
CHAPTER - 2 OUR CONSTITUTION
[A BRIEF UNDERSTANDING OF ORIGINAL INDIAN CONSTITUTION]
The Constitution of India is the Supreme Law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any sovereign country in the world. Dr
B.R. Ambedkar is widely regarded as the father of the Indian Constitution.
The Constitution was enacted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950. The date 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930. With its adoption, the Union of India officially became the modern and contemporary Republic of India and it replaced the Government of India Act 1935 as the country's fundamental governing document. The Constitution declares India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them. The words "socialist" and "secular" were added to the definition in 1976 by constitutional amendment. India celebrates the adoption of the constitution on 26 January each year as Republic Day.
BACKGROUND
The major portion of the Indian subcontinent was under British colonial rule from 1757 to 1947. The impact of economic, political and social exploitation during this period helped the gradual rise of the Indian independence movement to gain independence from foreign rule. The movement culminated in the formation of the Dominion of India on 15 August 1947, along with the Dominion of Pakistan. The Constitution of India was adopted on 26 November 1949 and came into effect on 26 January 1950, proclaiming India to be a sovereign, democratic republic. It contained the founding principles of the law of the land which would govern India after its independence from British rule. On the day the constitution came into effect, India ceased to be a dominion of the British Crown. The Indian constitution is the world's longest constitution. At the time of commencement, the constitution had 395 articles in 22 parts and 8 schedules. It consists of almost 80,000 words and took 2 years 11 months and 18 days to build.
In the United Kingdom the office of the Secretary of State for India was the authority through whom Parliament exercised its rule (along with the Council of India), and established the office of Viceroy of India (along with an Executive Council in India, consisting of high officials of the British Government). The Indian Councils Act 1861 provided for a Legislative Council consisting of the members of the Executive council and non-official members. The Indian Councils Act 1892 established provincial legislatures and increased the powers of the Legislative Council. Although these Acts increased the representation of Indians in the government, their power still remained limited. The Indian Councils Act 1909 and the Government of India Act 1919 further expanded participation of Indians in the government.
GOVERNMENT OF INDIA ACT 1935
The provisions of the Government of India Act 1935, though never implemented fully, had a great impact on the Constitution of India. Many key features of the constitution are directly taken from this Act. The federal structure of government, provincial autonomy, a bicameral central legislature consisting of a federal assembly and a Council of States and the
separation of legislative powers between the centre and states are some of the provisions of the Act which are present in the Constitution of India.
THE CABINET MISSION PLAN
In 1946, British Prime Minister Clement Attlee formulated a cabinet mission to India to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership as well as provide India with independence under Dominion status in the Commonwealth of Nations. The Mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body. Elections for the 296 seats assigned to the British Indian provinces were completed by August 1946. The Constituent Assembly of India first met and began work on 26 November 1946.
The mission consisted of Lord Pethick-Lawrence, the Secretary of State for India, Sir Stafford Cripps, President of the Board of Trade, and A. V. Alexander, the First Lord of the Admiralty. However, Lord Wavell, the Viceroy of India, did not participate.
INDIAN INDEPENDENCE ACT 1947
The Indian Independence Act, passed by the British Parliament on 18 July 1947, divided British India into two new independent states, India and Pakistan, which were to be dominions under the Commonwealth of Nations until they had each finished drafting and enacted a new constitution. The Constituent Assembly was divided into two for the separate states, with each new Assembly having sovereign powers transferred to it for the respective dominion. The Act also terminated British suzerainty over the princely states, each of which was left to decide whether to accede to one or other of the new dominions or to continue as independent states in their own right. However, in most cases the states were so dependent on central institutions that they were widely expected to accede to a dominion.
When the Constitution of India came into force on 26 January 1950, it repealed the Indian Independence Act. India ceased to be a dominion of the British Crown and became a sovereign democratic republic. 26 November 1949 is also known as National Law Day.
CONSTITUENT ASSEMBLY
The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies. Dr B.R. Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Kanaiyalal Munshi, Purushottam Mavalankar, Sandipkumar Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee, Nalini Ranjan Ghosh, and Balwantrai Mehta were some important figures in the Assembly. There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Ari Bahadur Gururng represented the Gorkha Community. Prominent jurists like Alladi Krishnaswamy Iyer, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankarwere also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh, Rajkumari Amrit Kaur and Vijayalakshmi Pandit were important women members.
Dr. Bhimrao Ramji Ambedkar is hailed as the prime architect of Indian Constitution
The first temporary 2-day president of the Constituent Assembly was Dr Sachidanand
Sinha. Later, Rajendra Prasad was elected president of the Constituent Assembly. The members of the Constituent Assembly met for the first time on 9 December 1946.
DRAFTING
On the 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees included a Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On 29 August 1947, the Drafting Committee was appointed, with Dr B. R. Ambedkar as the Chairman along with six other members assisted by a constitutional advisor. These members were Kanaiyalal Maneklal Munshi (K M Munshi, Ex- Home Minister, Bombay), Alladi Krishnaswamy Iyer (Ex- Advocate General, Madras State), N Gopalaswami Ayengar (Ex-Prime Minister, J&K and later member of Nehru Cabinet), B L Mitter (Ex-Advocate General, India), Md. Saadullah (Ex- Chief Minister of Assam, Muslim League member) and D P Khaitan (Scion of Khaitan Business family and a renowned lawyer). The constitutional advisor was Sir Benegal Narsing Rau(who became First Indian Judge in International Court of Justice, 1950–54). Later B L Mitter resigned and was replaced by Madhav Rao (Legal Advisor of Maharaja of Vadodara). Owing to death of D P Khaitan, T T Krishnamachari was chosen to be included in the drafting committee. A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947. Draft constitution was debated and over 2000 amendments were moved over a period of two years. Finally on 26 Nov. 1949, the process was completed and Constituent assembly adopted the constitution. 284 members signed the document and the process of constitution making was complete. The architects of Indian constitution were most heavily influenced by the British model of parliamentary democracy. In addition, a number of principles were adopted from the Constitution of the United States of America, including the separation of powers among the major branches of government, the establishment of a supreme court. The principles adopted from Canada were unitary government with strong center and also distribution of powers between central government and provinces along with placing residuary powers with central government. From Ireland, directive principle of state policy was adopted. From Germany the principle of suspension of fundamental rights during emergency was adopted. From Australia the principle of Concurrent list and Language of preamble was
adopted. The Assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution, the 308 members of the Assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950. The original Constitution of India is hand-written with beautiful calligraphy, each page beautified and decorated by artists from Shantiniketan including Beohar Rammanohar Sinha and Nandalal Bose. Two days later, on 26 January 1950, the Constitution of India became the law of all the States and territories of India. Rs. 1,00,00,000 was official estimate of expenditure on constituent assembly. The Constitution has undergone many amendments since its enactment.
PREAMBLE TO THE CONSTITUTION OF INDIA:
The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document. The preamble-page, along with other pages of the original Constitution of India, was designed and decorated solely by renowned painter Beohar Rammanohar Sinha of Jabalpur who was at Shantiniketan with acharya Nandalal Bose at that time. Nandalal Bose endorsed Beohar Rammanohar Sinha's artwork without any alteration whatsoever. As such, the page bears Beohar Rammanohar Sinha's short signature Ram in Devanagari lower-right corner.
That the preamble is not an integral part of the Indian constitution was first decided upon by the Supreme Court of India in the Beru Bari case; therefore it is not enforceable in a court of law. However, the Supreme Court of India has, in the Kesavananda case, recognised that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves. In the 1995 case of Union Government Vs LIC of India also the Supreme Court has once again held that the Preamble is an integral part of the Constitution.
As originally enacted the preamble described the state as a "sovereign democratic republic". In 1976 the Forty-second Amendment changed this to read "sovereign socialist secular democratic republic".
FULL TEXT
“
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY, of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
”
MEANING
ENACTING FORMULA
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its
citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation]; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
It signifies the democratic principle that power ultimately rests in the hands of the people. It also emphasizes that the constitution is made by and for the Indian people and is not given to them by any outside power (such as the British Parliament). The wording is close to the preamble to the constitution, which had been adopted in 1937; it reads "We, the people of India
... Do hereby adopt, enact, and give to ourselves this Constitution". The phrase "we the people" emphasizes upon the concept of popular sovereignty as laid down by J. J. Rousseau. All the power emanates from the people and the political system will be accountable and responsible to the people.
SOVEREIGN
The word sovereign means supreme or independence. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people. She allies in peace and war. The Popular sovereignty is also one of the basic structures of constitution of India. Hence, Citizens of India also enjoy sovereign power to elect their representatives in elections held for parliament, state legislature and local bodies as well. People have supreme right to make decisions on internal as well as external matters. No external power can dictate the government of India.
SOCIALIST
The word socialist was added to the Preamble by the Forty-second Amendment. It implies social and economic equality.
Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities.
Economic equality in this context means that the government will endeavour to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasized a commitment towards the formation of a welfare state. India has adopted a socialistic and mixed economy and the government has framed many laws to achieve the aim.
SECULAR
Citizens have complete freedom to follow any religion, and there is no official religion.
The Government treats all religious beliefs and practices with equal respect and honour.
DEMOCRATIC
The first part of the preamble “We, the people of India” and, its last part “give to ourselves this Constitution” clearly indicate the democratic spirit involved even in the Constitution. India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as "one man
one vote". Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.
REPUBLIC
As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country. The leaders of the state and local bodies are also elected by the people in similar manner..
FORTY-SECOND AMENDMENT
On 18 December 1976, during the Emergency in India, the Indira Gandhi government pushed through several changes in the Forty-second Amendment of the constitution. A committee under the chairmanship of Sardar Swaran Singh recommended that this amendment be enacted after being constituted to study the question of amending the constitution in the light of past experience. Through this amendment the words "socialist" and "secular" were added between the words "sovereign" and "democratic" and the phrase "unity of the Nation" was changed to "unity and integrity of the Nation".
INDIAN NATIONALITY LAW
The Indian citizenship and nationality law and the Constitution of India provide single citizenship for all of India. The provisions relating to citizenship upon adoption of the constitution are contained in Articles 5 to 11 in Part II of the Constitution of India. Relevant Indian legislation is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005. The Citizenship (Amendment) Act, 2003 received the assent of the president of India on 7 January 2004 and came into force on 3 December 2004. The Citizenship (Amendment) Ordinance 2005 was promulgated by the president of India and came into force on 28 June 2005.
Following these reforms, Indian nationality law largely follows the jus sanguinis (citizenship by right of blood) as opposed to the jus soli (citizenship by right of birth within the territory).
CITIZENSHIP BY BIRTH
Any person born in India, on or after 26 January 1950 but prior to the commencement of the 1986 Act on 1 July 1987, is a citizen of India by birth. A person born in India on or after 1 July 1987 is a citizen of India if either parent was a citizen of India at the time of the birth. Those born in India on or after 3 December 2004 are considered citizens of India only if both of their parents are citizens of India or if one parent is a citizen of India and the other is not an illegal migrant at the time of their birth.
CITIZENSHIP BY DESCENT
Persons born outside India on or after 26 January 1950 but before 10 December 1992 are citizens of India by descent if their father was a citizen of India at the time of their birth.
Person born outside India on or after 10 December 1992 are considered as citizens of India if either of their parents is a citizen of India at the time of their birth.
From 3 December 2004 onwards, persons born outside of India shall not be considered citizens of India unless their birth is registered at an Indian consulate within one year of the date of birth. In certain circumstances it is possible to register after 1 year with the permission of the Central Government. The application for registration of the birth of a minor child must be made to an Indian consulate and must be accompanied by an undertaking in writing from the parents of such minor child that he or she does not hold the passport of another country.
CITIZENSHIP BY REGISTRATION
The Central Government may, on an application, register as a citizen of India under section 5 of the Citizenship Act 1955 any person (not being an illegal migrant) if he belongs to any of the following categories:
· A person of Indian origin who is ordinarily resident in India for seven years before making application under section 5(1)(a) (throughout the period of twelve months immediately before making application and for six years in the aggregate in the eight years preceding the twelve months).
· A person of Indian origin who is ordinarily resident in any country or place outside undivided India;
· A person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
· Minor children of persons who are citizens of India;
· A person of full age and capacity whose parents are registered as citizens of India.
· A person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
· A person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.
CITIZENSHIP BY NATURALIZATION
Citizenship of India by naturalization can be acquired by a foreigner who has resided in India for twelve years. The applicant must have lived a total of 12 years in India in a period of 14 years, and must have lived in India for 12 months uninterrupted prior to applying for citizenship.
CITIZENSHIP AT THE COMMENCEMENT OF THE CONSTITUTION OF INDIA
Persons domiciled in the territory of India as on 26 November 1949 automatically became Indian citizens by virtue of operation of the relevant provisions of the Indian Constitution coming into force (the majority of the constitutional provisions came into force on 26 January 1950). The Constitution of India also made provisions regarding citizenship for migrants from territories of Pakistan, which were earlier parts of India before the partition.
RENUNCIATION OF INDIAN CITIZENSHIP
Renunciation is covered in Section 8 of the Citizenship Act 1955. If an adult makes a declaration of renunciation of Indian citizenship, he loses Indian citizenship. In addition any minor child of that person also loses Indian citizenship from the date of renunciation. When the child reaches the age of eighteen, he has the right to resume Indian citizenship. The provisions
for making a declaration of renunciation under Indian citizenship law require that the person making the declaration be "of full age and capacity".
AUTOMATIC TERMINATION OF INDIAN CITIZENSHIP
Termination is covered in Section 9 of the Citizenship Act, 1955. The provisions for termination are separate and distinct from the provisions for making a declaration of renunciation.
Section 9(1) of the act provides that any citizen of India who by naturalisation or registration acquires the citizenship of another country shall cease to be a citizen of India. Notably, the termination provision differs from the renunciation provision because it applies to "any citizen of India" and is not restricted to adults. Indian children therefore also automatically lose their claim to Indian citizenship if at any time after birth they acquire a citizenship of another country by, for example, naturalisation or registration — even if the acquisition of another citizenship was done as a result of actions by the child's parents.
The acquisition of another country's passport is also deemed under the Citizenship Rules, 1956 to be voluntary acquisition of another country’s nationality. Rule 3 of Schedule III of the Citizenship Rules, 1956 states that "the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date". Again, this rule applies even if the foreign passport was obtained for the child by his or her parents, and even if possession of such a passport is required by the laws of a foreign country which considers the child to be one of its citizens (e.g., a U.S.-born child of Indian parents who is automatically deemed to be a U.S. citizen according to U.S. law, and who is therefore required by U.S. law to have a U.S. passport in order to travel abroad). It does not matter that a person continues to hold an Indian passport. Persons who acquire another citizenship lose Indian citizenship from the date on which they acquire that citizenship or another country's passport. The prevailing practice at a number of British diplomatic posts, for example, is to impound and return to the Indian authorities the Indian passports of those applicants who apply for and are granted British passports.
Special rules exist for Indian citizens with a connection to Goa, Daman and Diu. Rule 3A of Schedule III of the Citizenship Rules, 1956 states that "Where a person, who has become an Indian Citizen by virtue of the Goa, Daman and Diu (Citizenship) Order, 1962, or the Dadra and Nagar Haveli (Citizenship) Order 1962, issued under section 7 of the Citizenship Act, 1955 (57 of 1955) holds a passport issued by the Government of any other country, the fact that he has not surrendered the said passport on or before the 19 January 1963 shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.
On 16 February 1962, a Constitution Bench of the Supreme Court of India held in the case of Izhar Ahmad Khan Vs. Union of India that "If it is shown that the person has acquired foreign citizenship either by naturalisation or registration, there can be no doubt that he ceases to be a citizen of India in consequence of such naturalisation or registration."
OVERSEAS CITIZENSHIP OF INDIA
There is a program, the holders of which are known as Overseas Citizens of India. The Constitution of India forbids dual citizenship or dual nationality, except for minors where the second nationality was involuntarily acquired. Indian authorities have interpreted the law to mean a person cannot have a second country's passport simultaneously with an Indian one — even in the case of a child who is claimed by another country as a citizen of that country, and who may be required by the laws of the other country to use one of its passports for foreign travel (such as a child born in the United States to Indian parents), and the Indian courts have given the executive branch wide discretion over this matter. Therefore, Overseas Citizenship of India is not an actual citizenship of India and thus, does not amount to dual citizenship or dual nationality. Moreover, the OCI card is not a substitute for an Indian visa and therefore, the passport which displays the lifetime visa must be carried by OCI holders while travelling to India. There is no plan to issue Indian passports to Overseas Citizens of India, although the registration certificate will be in the form of a passport-like booklet (similar to the Person of Indian Origin Card mentioned below). The Cabinet has also directed the Ministry of Overseas Indian Affairs to work on a proposal to give biometric smart cards to registered Overseas Citizens of India.
The Central Indian Government, on application, may register any person as an Overseas Citizen of India if that Person is of Indian Origin and is from a country which allows dual citizenship in some form or the other. Broadly speaking, a "Person of Indian Origin" is a citizen of another country who:
· Was a citizen of India on 26 January 1950 or at any time thereafter; or
· Belonged to a territory that became part of India after 15 August 1947; or
· Is the child or grandchild of a person described above; and
· Has never been a citizen of Pakistan or Bangladesh.
Note that children of Indian parents do not automatically fulfil these requirements, and are therefore not automatically eligible for OCI.
The introduction of Overseas Indian Citizenship does not entitle people who have acquired, or are planning to acquire, foreign nationality or to retain their Indian passports. The law continues to require that Indian citizens who take foreign nationality must immediately surrender their Indian passports. Those who are only eligible can then apply for registration as Overseas Indian Citizens.
Indian Missions are authorized to grant applications for overseas citizenship of India within to cases where there is no involvement in serious offences like drug trafficking, moral turpitude, terrorist activities or anything leading to imprisonment of more than a year.
Acquiring Overseas citizenship of India prevents British nationals (Overseas) from registering as full British citizens under Section 4B of the British Nationality Act of 1981 (which requires that nationals have no other citizenship in order to register. It does not prevent them from acquiring full British citizenship by a different method and it does not revoke their British citizenship if they have already registered under Section 4B.
An Overseas Citizen of India will enjoy all rights and privileges available to Non-Resident Indians on a parity basis excluding the right to invest in agriculture and plantation properties or hold public office. The person has to carry his existing foreign passport which should include the new visa called ‘U’ visa which is a multi-purpose, multiple-entry, lifelong visa. It will entitle the Overseas Citizen of India to visit the country at any time for any length of time and for any purpose.
Overseas citizens of India will not enjoy the following rights even if resident in India:
(i) the right to vote, (ii) the right to hold the offices of President, Vice-President, Judge of Supreme Court and High Court, Member of Lok Sabha, Rajya Sabha, Legislative Assembly or Council, (iii) appointment to Public Services (Government Service). Also, Overseas Citizens of India are not eligible for an inner line permit, and they have to apply for a protected area permit if they want to visit certain areas in India.
An interesting problem is that whether a person registered as an Overseas Citizen of India will lose the right of diplomatic protection by their home country while in India. Article 4 of the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930 provides that "a State may not afford diplomatic protection to one of its nationals against a state whose nationality such person also possesses".
The case depends on two things: does the Indian government itself recognize overseas citizenship of India as a true citizenship and, on that basis refuse, the right of diplomatic protection by the other country, and, does the person's home country recognize it and accept India's refusal?
It is unsure as India does not give Overseas Citizens an independent travel document but instead puts a visa in the other country's passport. If a person is eligible to have only another country's passport but not any form of Indian travel document, it is hard to avoid the conclusion that the person is a sole citizen of the other country for the purposes of diplomatic protection.
Though not actual dual citizenship, the privileges afforded by acquiring an OCI card is that now multinational companies are finding it simpler to hire the OCI cardholders, who enjoy a multiple entry, multipurpose lifelong visa to visit India. The card provides a lifelong visa to the holder, sparing them the need to obtain separate work permits. OCI holders are treated on par with NRIs for economic, financial and educational matters and only don’t have political rights and rights to buy agricultural and plantation properties or hold public office.
They are also exempt from registration with the Foreigners Regional Registration Officer (FRRO) on their arrival in the country and can stay or live for as long as they wish. OCI cardholders can travel at very short notice and take up assignments in India, while others could get caught up in bureaucratic delays over their employment visa. Many companies are following an active policy of moving PIOs to India for business expansion. Indian missions overseas are witnessing a deluge in OCI applications, the number of OCI cards issued by consulates around the world have been steadily raising with several Indian consulates grappling with a huge backlog of applications.
PERSONS OF INDIAN ORIGIN (PIO) CARD
This is issued to any person currently holding a non-Indian passport, who can prove their Indian origin up to three generations before. The same holds for spouses of Indian citizen or persons of Indian origin. Citizens of Pakistan, Bangladesh, and other countries as may be specified by the central government are not eligible for grant of Persons of Indian Origin card.
A PIO card is generally valid for a period of fifteen years from the date of issue. It gives the holder the following benefits:
· Exemption from registration at a Foreigners' Regional Registration Office (FRRO) for periods of stay less than 180 days,
· Enjoy parity with non-resident Indians in economic, financial and educational fields,
· Acquire, hold, transfer, or dispose of immovable properties in India, except for agricultural properties,
· Open rupee bank accounts, lend in rupees to Indian residents, and make investments in India etc.,
· Being eligible for various housing schemes under the Life Insurance Corporation of India (LIC) or the central or State governments,
· Their children can obtain admission in educational institutions in India in the general category quota for non-resident Indians.
Possession of a PIO card will not entitle the holder to:
· Being eligible for the exercise of any political rights
· Visit restricted or protected areas without permission
· Undertake mountaineering, research, and missionary work without permission.
OVERSEAS INDIAN CARD
In early 2011, the Prime Minister of India, Manmohan Singh, announced that the Person of Indian Origin card will be merged with the Overseas Citizen of India card. This new card is proposed to be called the Overseas Indian Card.
BRITISH NATIONALITY AND INDIA
Prior to 1 January 1949, Indians were British subjects under United Kingdom law. See British nationality law. Between 1 January 1949 and 25 January 1950, Indians remained British subjects without citizenship unless they had already acquired citizenship of the UK & Colonies or another Commonwealth country.
On commencement of the Indian Constitution on 26 January 1950, under British Nationality law a person who became an Indian citizen also had the status of Commonwealth citizen (also known as a British subject with Commonwealth citizenship, a status which does not entitle the person to use a British passport) by virtue of their Indian citizenship and India's membership of the Commonwealth. However, a number of Indians did not acquire Indian citizenship on commencement of the Indian Constitution and retained British subject without citizenship status (which entitles a person to a British passport) unless they had acquired citizenship of another Commonwealth country. Any person who is solely a British subject (otherwise than by connection with the Republic of Ireland) will automatically lose British subject status on acquiring any other nationality or citizenship including Indian citizenship or Indian Overseas citizenship.
British subjects may register as British citizens under section 4B of the British Nationality Act 1981 without requiring any UK residence if they have no other citizenship or nationality and have not after 4 July 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality. This facility has been available since 30 April 2003. Those who have immigrated to the UK may have additional options for acquiring British citizenship, which are usually preferred because they give transmissible British citizenship with otherwise than by descent status.
From 1949 the meaning of the term British subject was substantially different from what had previously been the case and meant little more than a term to describe someone holding the citizenship of a Commonwealth country. Only a British subject without citizenship was entitled to a British passport. See British subject.
FUNDAMENTAL RIGHTS IN INDIA
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, colour or Gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the Rights and France's Declaration of the Rights of Man.
The six fundamental rights recognised by the constitution are:
1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2) Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
6) Right to constitutional remedies for enforcement of Fundamental Rights. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.
Right to property was originally a fundamental right, but is now a legal right.
GENESIS
The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights(approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26
August 1789). Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and Britishers political parties.
In 1919, the Rowlatt Act gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.
In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defense of fundamental civil rights, as well as socio- economic rights such as the minimum wage and the abolition of untouchability and serfdom. Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges.
When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives under the presidency of Rajendra Prasad. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws. Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.
The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee.
SIGNIFICANCE AND CHARACTERISTICS
The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State. According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights.
All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation". In some cases, High Court judges have acted on their own on the basis of newspaper reports.
These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens. The right to equality in matters of public employment cannot be conferred to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament cannot alter the basic structure of the constitution. Features such as secularism and democracy fall under this category. Since the fundamental rights can only be altered by a constitutional amendment, their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures.
A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well.
RIGHT TO EQUALITY
Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following:
· Equality before law: Article 14 of the constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State cannot discriminate any of the Indian citizens on the basis of their caste, creed, colour, sex, gender, religion or place of birth.
· Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.
· Equality in matters of public employment: Article 16 of the constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion. According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred to Overseas citizens of India.
· Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offense and anyone doing so is punishable by law. TheUntouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.
· Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State. The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India — these titles were also abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15 December 1995, upheld the validity of such awards.
RIGHT TO FREEDOM
The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the following six freedoms:
· Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.
· Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.
· Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.
· Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.
· Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion. Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.
· Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade.
+The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:
· Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. "Compulsion" in this article refers to what in law is called "Duress" (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is, no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law. This principle was first established in the Magna Carta.
· Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. This means that a person's life and personal liberty can only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year. In 1996 however another Supreme Court ruling nullified the earlier one.) "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.
· In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008. It is now soon to be tabled in Parliament for approval before it makes a fundamental right of every child to get free and compulsory education.
· Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an
arrested citizen has to be brought before the nearest magistrate within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons detained under the Preventive Detention Act. Under preventive detention, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review.
The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency.
RIGHT AGAINST EXPLOITATION
Child labour and Begar is prohibited under Right against exploitation.
The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labor), and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution. Begar, practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription is covered by this provision.
RIGHT TO FREEDOM OF RELIGION
Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice.
Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. No person shall be compelled to pay taxes for the promotion of a particular religion. A State run institution cannot impart education that is pro- religion. Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.
CULTURAL AND EDUCATIONAL RIGHTS
As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop it. No citizen can be discriminated against for admission in State or State aided institutions.
All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution. But the right to administer does not mean that the State can not interfere in case of maladministration. In a precedent-setting judgment in 1980, the Supreme Court held that the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission.
RIGHT TO CONSTITUTIONAL REMEDIES
Right to constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government.
CRITICAL ANALYSIS
The fundamental rights have been revised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in the Directive Principles of state policy. The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency. The provisions of acts like the Maintenance of Internal Security Act (MISA) and the National Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights. The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality are criminalized in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peaceably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.
"Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. The right to equality in
matters regarding public employment shall not be conferred to overseas citizens of India, according to the Citizenship (Amendment) Bill, 2003.
AMENDMENTS
Changes to the fundamental rights require a constitutional amendment which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house — whether the Lok Sabha or Rajya Sabha.
The right to education at elementary level has been made one of the fundamental rights under the Eighty-Sixth Amendment of 2002.
RIGHT TO PROPERTY
The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights. A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.
The liberalisations of the economy and the government’s initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property. The Supreme Court has sent a notice to the government questioning why the right should not be brought back but in 2010 the court rejected the PIL
As in 2007 the Supreme Court unanimously said that the fundamental rights are a basic structure of the constitution and cannot be removed or diluted on that time.
RIGHT TO EDUCATION
Article 21A - On 1 April 2010, India joined a group of few countries in the world, with a historic law making education a fundamental right of every child coming into force. Making elementary education an entitlement for children in the 6-14 age group, the Right of Children to Free and Compulsory Education Act will directly benefit children who do not go to school at present.
Prime Minister Manmohan Singh announced the operationalisation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will be binding on the part of the local and State governments to ensure that all children in the 6-14 age group get schooling. As per the Act, private educational
institutions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the Finance Commission has given Rs. 25,000 crore to the States for implementing the Act. The Centre has approved an outlay of Rs.15,000 crore for 2010-2011.
The school management committee or the local authority will identify the drop-outs or out-of-school children aged above six and admit them in classes appropriate to their age after giving special training.
FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES AND FUNDAMENTAL DUTIES OF INDIA
The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. These sections comprise a constitutional bill of rights for government policy-making and the behaviour and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India.
The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed or sex. They are enforceable by the courts, subject to specific restrictions.
The Directive Principles of State Policy is guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws.
The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV– A of the Constitution (under a constitutional amendment) concern individuals and the nation. Like the Directive Principles, they are not legally enforceable.
HISTORY
The Fundamental Rights and Directive Principles had their origins in the Indian independence movement, which strove to achieve the values of liberty and social welfare as the goals of an independent Indian state. The development of constitutional rights in India was inspired by historical documents such as England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The demand for civil liberties formed an important part of the Indian independence movement, with one of the objectives of the Indian National Congress (INC) being to end discrimination between the British rulers and their Indian subjects. This demand was explicitly mentioned in resolutions adopted by the INC between 1917 and 1919. The demands articulated in these resolutions included granting to Indians the rights to equality before law, free speech, trial by juries composed at least half of Indian members, political power, and equal terms for bearing arms as British citizens.
The experiences of the First World War, the unsatisfactory Montague-Chelmsford reforms of 1919, and the rise to prominence of M. K. Gandhi in the Indian independence movement marked a change in the attitude of its leaders towards articulating demands for civil rights. The focus shifted from demanding equality of status between Indians and the British to
assuring liberty for all Indians. The Commonwealth of India Bill, drafted by Annie Beasant in 1925, specifically included demands for seven fundamental rights – individual liberty, freedom of conscience, free expression of opinion, freedom of assembly, non-discrimination on the ground of sex, free elementary education and free use of public spaces. In 1927, the INC resolved to set up a committee to draft a "Swaraj Constitution" for India based on a declaration of rights that would provide safeguards against oppression. The 11-member committee, led by Motilal Nehru, was constituted in 1928. Its report made a number of recommendations, including proposing guaranteed fundamental rights to all Indians. These rights resembled those of the American Constitution and those adopted by post-war European countries, and several of them were adopted from the 1925 Bill. Several of these provisions were later replicated in various parts of the Indian Constitution, including the Fundamental Rights and Directive Principles.
In 1931, the Indian National Congress, at its Karachi session, adopted a resolution committing itself to the defence of civil rights and economic freedom, with the stated objectives of putting an end to exploitation, providing social security and implementing land reforms. Other new rights proposed by the resolution were the prohibition of State titles, universal adult franchise and abolition of capital punishment and freedom of movement. Drafted by Jawaharlal Nehru, the resolution, which later formed the basis for some of the Directive Principles, placed the primary responsibility of carrying out social reform on the State, and marked the increasing influence of socialism and Gandhian philosophy on the independence movement. The final phase of the Independence movement saw a reiteration of the socialist principles of the 1930s, along with an increased focus on minority rights – which had become an issue of major political concern by then – which were published in the Sapru Report in 1945. The report, apart from stressing on protecting the rights of minorities, also sought to prescribe a "standard of conduct for the legislatures, government and the courts".
During the final stages of the [British Raj], the 1946 Cabinet Mission to India proposed a Constituent Assembly to draft a Constitution for India as part of the process of transfer of power. The Constituent Assembly of India composed of indirectly elected representatives from the British provinces and Princely states, commenced its proceedings in December 1946, and completed drafting the Constitution of India by November 1949. According to the Cabinet Mission plan, the Assembly was to have an Advisory Committee to advise it on the nature and extent of fundamental rights, protection of minorities and administration of tribal areas. Accordingly, the Advisory Committee was constituted in January 1947 with 64 members, and from among these a twelve-member sub-committee on Fundamental Rights was appointed under the chairmanship of J.B. Kripalani in February 1947. The sub-committee drafted the Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the Committee placed it before the Assembly, which debated and discussed the rights over the course of the following year, adopting the drafts of most of them by December 1948. The drafting of the Fundamental Rights was influenced by the adoption of the Universal Declaration of Human Rights by the U.N. General Assembly and the activities of the United Nations Human Rights Commission, as well as decisions of the U.S. Supreme Court in interpreting the Bill of Rights in the American Constitution. The Directive Principles, which were also drafted by the sub-committee on Fundamental Rights, expounded the socialist precepts of the Indian independence movement, and were inspired by similar principles contained in the Irish Constitution. The Fundamental Duties were later added to the Constitution by the 42nd Amendment in 1976.
FUNDAMENTAL RIGHTS
The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens' rights from encroachment by society. Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978.
The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society. They act as limitations on the powers of the legislature and executive, under Article 13, and in case of any violation of these rights the Supreme Court of India and the High Courts of the states have the power to declare such legislative or executive action as unconstitutional and void. These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character. However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 – that are also available against private individuals. Further, certain Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only to citizens of India.
The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest. In theKesavananda Bharati v. State of Kerala case in 1973, the Supreme Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure of the Constitution. The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment, passed by a two-thirds majority of each House of Parliament. The imposition of a state of emergency may lead to a temporary suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33.
RIGHT TO EQUALITY
The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14–16, which collectively encompass the general principles of equality before law and non-discrimination, and Articles 17–18 which collectively further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification.
Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection. Article 16 guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the implementation of measures of affirmative action for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion.
The practice of untouchability has been declared an offence punishable by law under Article 17, and the Protection of Civil Rights Act, 1955 has been enacted by the Parliament to further this objective. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and titles of nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna have been held to be valid by the Supreme Court on the ground that they are merely decorations and cannot be used by the recipient as a title.
RIGHT TO FREEDOM
The Right to Freedom is covered in Articles 19–22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These include the freedom of speech and expression, freedom of assembly, freedom of association without arms, freedom of movement throughout the territory of India, freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalise any trade, industry or service to the exclusion of the citizens.
The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–
22. The scope of these articles, particularly with respect to the doctrine of due process, was heavily debated by the Constituent Assembly. It was argued, especially by Benegal Narsing Rau, that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether. The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favour of "procedure established by law". As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal
existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living". Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002.
Article 20 provides protection from conviction for offences in certain respects, including the rights against ex-post facto laws, double jeopardy and freedom from self- incrimination. Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate. The Constitution also authorises the State to make laws providing for preventive detention, subject to certain other safeguards present in Article 22. The provisions pertaining to preventive detention were discussed with scepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949. Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.
RIGHT AGAINST EXPLOITATION
The Right against Exploitation, contained in Articles 23–24, lays down certain provisions to prevent exploitation of the weaker sections of the society by individuals or the State. Article 23 provides prohibits human trafficking, making it an offence punishable by law, and also prohibits forced labour or any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose compulsory service for public purposes, including conscription and community service. The Bonded Labour system (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article. Article 24 prohibits the employment of children below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers.
RIGHT TO FREEDOM OF RELIGION
Any person can change their religion according to their wish no person can force a person to change his/her religion. The Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures a secular State in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all persons the freedom of conscience and the right to preach, practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert another individual, since it would amount to an infringement of the other's right to freedom of conscience. Article 26 guarantees all religious denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice. Article 27
guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution. Article 28 prohibits religious instruction in a wholly State- funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian's) consent.
CULTURAL AND EDUCATIONAL RIGHTS
Every person has the right to get education no person can discriminate against going to school. The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 29 grants any section of citizens having a distinct language, script culture of its own, and the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them. It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to reservation of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community.
Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority. The term "minority", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such minority. This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilisation of any aid granted by it.
RIGHT TO CONSTITUTIONAL REMEDIES
Right to constitutional remedies empowers the citizens to move to a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government.
DIRECTIVE PRINCIPLES OF STATE POLICY
The Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given to the State to guide the establishment of an economic and social democracy, as
proposed by the Preamble. They set forth the humanitarian and socialist instructions that were the aim of social revolution envisaged in India by the Constituent Assembly. The State is expected to keep these principles in mind while framing laws and policies, even though they are non-justiciable in nature. The Directive Principles may be classified under the following categories: ideals that the State ought to strive towards achieving; directions for the exercise of legislative and executive power; and rights of the citizens which the State must aim towards securing.
Despite being non-justiciable, the Directive Principles act as a check on the State; theorised as a yardstick in the hands of the electorate and the opposition to measure the performance of a government at the time of an election. Article 37, while stating that the Directive Principles are not enforceable in any court of law, declares them to be "fundamental to the governance of the country" and imposes an obligation on the State to apply them in matters of legislation. Thus, they serve to emphasise the welfare state model of the Constitution and emphasise the positive duty of the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight income inequality and ensure individual dignity, as mandated by Article 38.In order to ensure equitable distribution of land resources.
Article 39 lays down certain principles of policy to be followed by the State, including providing an adequate means of livelihood for all citizens, equal pay for equal work for men and women, proper working conditions, reduction of the concentration of wealth and means of production from the hands of a few, and distribution of community resources to "subserve the common good". These clauses highlight the Constitutional objectives of building an egalitarian social order and establishing a welfare state, by bringing about a social revolution assisted by the State, and have been used to support the nationalisation of mineral resources as well as public utilities. Further, several legislations pertaining to agrarian reform and land tenure have been enacted by the federal and state governments, in order to ensure equitable distribution of land resources.
Articles 41–43 mandate the State to endeavour to secure to all citizens the right to work, a living wage, social security, maternity relief, and a decent standard of living. These provisions aim at establishing a socialist state as envisaged in the Preamble. Article 43 also places upon the State the responsibility of promoting cottage industries, and the federal government has, in furtherance of this, established several Boards for the promotion of khadi, handlooms etc., in coordination with the state governments. Article 39A requires the State to provide free legal aid to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities. Article 43A mandates the State to work towards securing the participation of workers in the management of industries. The State, under Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. Several enactments, including two Constitutional amendments, have been passed to give effect to this provision.
Article 44 encourages the State to secure a uniform civil code for all citizens, by eliminating discrepancies between various personal laws currently in force in the country. However, this has remained a "dead letter" despite numerous reminders from the Supreme Court to implement the provision. Article 45 originally mandated the State to provide free and compulsory education to children between the ages of six and fourteen years, but after the 86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children below the age of six. Article 47 commits the State to raise the standard of living and improve public health, and prohibit the consumption of intoxicating drinks and drugs injurious to health. As a consequence, partial or total prohibition has been introduced in several states, but financial constraints have prevented
its full-fledged application. The State is also mandated by Article 48 to organise agriculture and animal husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cattle. Article 48A mandates the State to protect the environment and safeguard the forests and wildlife of the country, while Article 49 places an obligation upon the State to ensure the preservation of monuments and objects of national importance. Article 50 requires the State to ensure the separation of judiciary from executive in public services, in order to ensure judicial independence, and federal legislation has been enacted to achieve this objective. The State, according to Article 51, must also strive for the promotion of international peace and security, and Parliament has been empowered under Article 253 to make laws giving effect to international treaties.
FUNDAMENTAL DUTIES
The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran SinghCommittee that was constituted by the government earlier that year. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years. The other Fundamental Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish its heritage, preserve its composite culture and assist in its defense. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life. Citizens are morally obligated by the Constitution to perform these duties. However, like the Directive Principles, these are non-justifiable, without any legal sanction in case of their violation or non-compliance. There is reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution into conformity with these treaties.
CRITICISM AND ANALYSIS
Fewer children are now unemployed in hazardous environments, but their employment in non-hazardous jobs, prevalently as domestic help, violates the spirit of the constitution in the eyes of many critics and human rights advocates. More than 16.5 million children are in employment. India was ranked 88 out of 159 countries in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians. The year 1990– 1991 was declared as the "Year of Social Justice" in the memory of B.R. Ambedkar. The government provides free textbooks to students belonging to scheduled castes and tribes pursuing medicine and engineering courses. During 2002–2003, a sum of Rs. 4.77 crore (47.7 million) was released for this purpose. In order to protect scheduled castes and tribes from discrimination, the government enacted the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, prescribing severe punishments for such actions.
The Minimum Wages Act of 1948 empowers government to fix minimum wages for people working across the economic spectrum. The Consumer Protection Act of 1986 provides for the better protection of consumers. The Equal Remuneration Act of 1976 provides for equal pay for equal work for both men and women. The Sampoorna Grameen Rozgar Yojana (Universal Rural Employment Programme) was launched in 2001 to attain the objective of providing gainful employment for the rural poor. The programme was implemented through the Panchayati Raj institutions.
A system of elected village councils, known as Panchayati Raj covers almost all states and territories of India. One-third of the total numbers of seats have been reserved for women in
Panchayats at every level; and in the case of Bihar, half the seats have been reserved for women. The judiciary has been separated from the executive "in all the states and territories except Jammu and Kashmir and Nagaland." India's foreign policy has been influenced by the Directive Principles. India supported the United Nations in peace-keeping activities, with the Indian Army having participated in 37 UN peace-keeping operations.
The implementation of a uniform civil code for all citizens has not been achieved owing to widespread opposition from various religious groups and political parties. The Shah Bano case (1985–86) provoked a political firestorm in India when the Supreme Court ruled that Shah Bano, a Muslim woman who had been divorced by her husband in 1978 was entitled to receive alimony from her former husband under Indian law applicable for all Indian women. This decision evoked outrage in the Muslim community, which sought the application of the Muslim personal law and in response the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 overturning the Supreme Court's verdict. This act provoked further outrage, as jurists, critics and politicians alleged that the fundamental right of equality for all citizens irrespective of religion or gender was being jettisoned to preserve the interests of distinct religious communities. The verdict and the legislation remain a source of heated debate, with many citing the issue as a prime example of the poor implementation of Fundamental Rights.
RELATIONSHIP BETWEEN THE FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES AND FUNDAMENTAL DUTIES
The Directive Principles have been used to uphold the Constitutional validity of legislations in case of a conflict with the Fundamental Rights. Article 31C, added by the 25th Amendment in 1971, provided that any law made to give effect to the Directive Principles in Article 39(b)–(c) would not be invalid on the grounds that they derogated from the Fundamental Rights conferred by Articles 14, 19 and 31. The application of this article was sought to be extended to all the Directive Principles by the 42nd Amendment in 1976, but the Supreme Court struck down the extension as void on the ground that it violated the basic structure of the Constitution. The Fundamental Rights and Directive Principles have also been used together in forming the basis of legislation for social welfare. The Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other's role in aiming at the same goal of establishing a welfare state by means of social revolution. Similarly, the Supreme Court has used the Fundamental Duties to uphold the Constitutional validity of statutes which seeks to promote the objects laid out in the Fundamental Duties. These Duties have also been held to be obligatory for all citizens, subject to the State enforcing the same by means of a valid law. The Supreme Court has also issued directions to the State in this regard, with a view towards making the provisions effective and enabling a citizens to properly perform their duties.
ARTICLES
Article 1 {Name and territory of the Union}
1. India, that is Bharat, shall be a Union of States.
2. The States and the territories thereof shall be as specified in the First Schedule.
3. The territory of India shall comprise —
a. The territories of the States;
b. The Union territories specified in the First Schedule; and
c. Such other territories as may be acquired.
Article 2 {Admission or establishment of new States}
Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.
Article 2A {Sikkim to be associated with the Union}
Now omitted by 36th Amendment Act 1975 {...}
Article 3 {Formation of new States and alteration of areas, boundaries or names of existing States}
Parliament may by law -
a. form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
b. increase the area of any State;
c. diminish the area of any State;
d. alter the boundaries of any State;
e. alter the name of any State:
Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.
[Explanation I: In this article, in clauses (a) to (e), "State" includes a Union territory, but in the proviso, "State" does not include a Union territory.]
[Explanation II: The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any other State or Union territory to any other State of Union territory.]
Article 4 {Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedule and supplemental, incidental and consequential matters}
1. Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give
effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
2. No such law as aforesaid shall be deemed to be in amendment of this Constitution for the purposes of article 368.
Article 5 {Citizenship at the commencement of the Constitution}
At the commencement of this Constitution, every person who has his domicile in the territory of India and —
a. Who was born in the territory of India; or
b. Either of whose parents was born in the territory of India; or
c. Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.
Article 6 {Rights of citizenship of certain persons who have migrated to India from Pakistan}
Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if —
a. He or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and
b.
i. In the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or
ii. In the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him there for to such officer before the commencement of this Constitution in the form and manner prescribed by that Government:
Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.
Article 7 {Rights of citizenship of certain migrants to Pakistan}
Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.
Article 8 {Rights of citizenship of certain persons of Indian origin residing outside India}
Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefore to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India.
Article 9 {Persons voluntarily acquiring citizenship of a foreign State not to be citizens}
No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.
Article 10 {Continuance of the rights of citizenship}
Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
Article 11 {Parliament to regulate the right of citizenship by law}
Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
Article 12 {Definition}
In this Part, unless the context otherwise required, "the State" includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The expression "state" in the context of the Indian.
Article 13 {Laws inconsistent with or in derogation of the fundamental rights}
1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
3. In this article, unless the context otherwise required, -
a. "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
b. "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
4. Nothing in this article shall apply to any amendment of this Constitution made under article 368.
Article 14 {Equality before law}
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15 {Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth}
1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.
2. No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to -
a. Access to shops, public restaurants, hotels and places of public entertainment; or
b. The use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public.
3. Nothing in this article shall prevent the State from making any special provision for women and children.
4. Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 16 {Equality of opportunity in matters of public employment}
1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
4. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (4A) nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
5. Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
Article 17 {Abolition of Untouchability}
"Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with law.
Article 18 {Abolition of titles}
1. No title, not being a military or academic distinction, shall be conferred by the State.
2. No citizen of India shall accept any title from any foreign State.
3. No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
4. No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.
Article 19 {Protection of certain rights regarding freedom of speech, etc.}
1. All citizens shall have the right -
a. to freedom of speech and expression;
b. to assemble peaceably and without arms;
c. to form associations or unions;
d. to move freely throughout the territory of India;
e. to reside and settle in any part of the territory of India; and
f. *** (repealed)
g. to practice any profession, or to carry on any occupation, trade or business.
2. Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
3. Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the right conferred by the said sub-clause.
4. Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
5. Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Schedule Tribe.
6. Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub- clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, -
i. The professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or
ii. The carrying on by the State or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
Article 20 {Protection in respect of conviction for offenses}
1. No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
2. No person shall be prosecuted and punished for the same offence more than once.
3. No person accused of any offence shall be compelled to be a witness against himself.
Article 21 {Protection of life and personal liberty}
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 22 {Protection against arrest and detention in certain cases}
1. No person who is arrested shall be detained in custody without being informed, as soon as may not be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
2. Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
3. Nothing in clauses (1) and (2) shall apply -
a. to any person who for the time being is an enemy alien; or
b. to any person who is arrested or detained under any law providing for preventive detention.
4. No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless -
a. An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub- clause
b. of clause (7); or
c. Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
5. When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
6. Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
7. Parliament may by law prescribe –
a. The circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
b. The maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
c. The procedure to be followed by an Advisory Board in an inquiry under sub-clause
(a) of clause (4).
Article 23 {Prohibition of traffic in human beings and forced labour}
1. Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
2. Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on ground only of religion, race, caste or class or any of them.
Article 24 {Prohibition of employment of children in factories, etc.}
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous work.
Article 25 {Freedom of conscience and free profession, practice and propagation of religion}
1. Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
2. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law -
3. Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
[Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.]
[Explanation II: In sub-Clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accord
Article 26 {Freedom to manage religious affairs}
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right -
a. To establish and maintain institutions for religious and charitable purposes;
b. To manage its own affairs in matters of religion;
c. To own and acquire movable and immovable property; and
d. To administer such property in accordance with law.
Article 27 {Freedom as to payment of taxes for promotion of any particular religion}
No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28 {Freedom as to attendance at religious instruction or religious worship in certain educational institutions}
1. No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
2. Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
3. No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is minor, his guardian has given his consent thereto.
Article 29 {Protection of interests of minorities}
1. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
2. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Article 30 {Right of minorities to establish and administer educational institutions}
1. All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
1A. In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
Article 31 {Compulsory acquisition of property}
Removed. by the Constitution (Forty-fourth Amendment) Act, 1978.
Article 31A {Saving of laws providing for acquisition of estates, etc.}
1. Notwithstanding anything contained in article 13, no law providing for -
a. the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
b. the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
c. the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
d. the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of share-holders thereof, or
e. the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of and such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19: Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
2. In this article, -
a. the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenure in force in that area and shall also include -
i. Any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
ii. Any land held under ryotwari settlement;
iii. Any land held or let for purposes of agriculture of for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
b. The expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.
Article 31B {Validation of certain Acts and Regulations}
Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provision thereof shall be deemed to be void, or even to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
Article 31C {Saving of laws giving effect to certain directive principles}
Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
Article 31D {Saving of laws in respect of anti-national activities}
Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 2. {...}
Article 32 {Remedies for enforcement of rights conferred by this Part}
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
Article 32A {Constitutional validity of State laws not to be considered in proceedings under article 32} Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 3.
Article 33 {Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.}
Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to, -
a. the members of the Armed Forces; or
b. the members of the Forces charged with the maintenance of public order; or
c. persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
d. persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
Article 34 {Restriction on rights conferred by this Part while martial law is in force in any area}
Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any person in respect of any
act done by him in connection with the maintenance or restoration or order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.
Article 35 {Legislation to give effect to the provisions of this Part} Notwithstanding anything in this Constitution, -
a. Parliament shall have, and the Legislature of a State shall not have, power to make laws -
i. With respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 & article 34 may be provided for by law made by Parliament; and
ii. for prescribing punishment for those acts which are declared to be offences under this part, and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub- clause (ii);
b. Any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause
(a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.
[Explanation: the expression "law in force" has the same meaning as in article 372.]
Article 36 {Definition}
In this Part, unless the context otherwise requires, "the State" has the same meaning as in Part III.
Article 37 {Application of the principles contained in this Part}
The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
Article 38 {State to secure a social order for the promotion of welfare of the people}
1. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
2. The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
Article 39 {Certain principles of policy to be followed by the State} The State shall, in particular, direct its policy towards securing -
a. That the citizen, men and women equally, have the right to an adequate means of livelihood;
b. That the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good;
c. That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
d. That there is equal pay for equal work for both men and women;
e. That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
f. Those children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Article 39A {Equal justice and free legal aid}
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Article 40 {Organisation of village panchayats}
The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self- government.
Article 41 {Right to work, to education and to public assistance in certain cases}
The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
Article 42 {Provision for just and human conditions of work and maternity relief}
The State shall make provision for securing just and humane conditions of work and for maternity relief.
Article 43 {Living wage, etc., for workers}
The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.
Article 43A {Participation of workers in management of industries}
The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisation engaged in any industry.
Article 44 {Uniform civil code for the citizen}
The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
Article 45 {Provision for free and compulsory education for children}
The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
Article 46 {Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections}
The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
Article 47 {Duty of the State to raise the level of nutrition and the standard of living and to improve public health}
The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health.
Article 48 {Organisation of agriculture and animal husbandry}
The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
Article 48A {Protection and improvement of environment and safeguarding of forests and wild life}
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
Article 49 {Protection of monuments and places and objects of national importance}
It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.
Article 50 {Separation of judiciary from executive}
The State shall take steps to separate the judiciary from the executive in the public services of the State.
Article 51 {Promotion of international peace and security} The State shall endeavour to -
a. Promote international peace and security;
b. Maintain just and honourable relations between nations;
c. Foster respect for international law and treaty obligations in the dealings of organised people with one another; and
d. Encourage settlement of international disputes by arbitration.
Article 51A {Fundamental duties}
It shall be the duty of every citizen of India -
a. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
b. To cherish and follow the noble ideals which inspired our national struggle for freedom;
c. To uphold and protect the sovereignty, unity and integrity of India;
d. To defend the country and render national service when called upon to do so;
e. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
f. To value and preserve the rich heritage of our composite culture;
g. To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
h. To develop the scientific temper, humanism and the spirit of inquiry and reform;
i. To safeguard public property and to abjure violence;
j. To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
k. Who is a parent or guardian, to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years
CHAPTER - 3
KEY-WORDS
State Meaning
• The Classical understanding of State has been in terms of four elements: territory, population, sovereignty and government.
• Sovereignty is the central characteristics of State. Sovereignty is the undisputed legal authority on the people and the territory over whom the sovereign power is exercised.
• Government is the organ of State through which sovereign power is excersed.
State and Citizen
• people are important element of State
• It is in relationship with the people that the State power and the laws become relevant.
• Every one living within the territory of the State is not its citizen. Everyone living within the territory, both the citizens and the aliens have certain expectations from the State. But citizens can demand many other rights from the State.
• Citizens are expected to participate in the affairs of the State-
Government Meaning
• A Set of institutions, individuals, occupying positions in the Institutions and procedures for constituting the institutions and for exercise of power is referred to as the Government.
State and Government.
• Whom a new State comes into being it defines the form of government according to its own preference.
• State is prior to Government. Change in government is easier and frequent than change is the form of State.
• AS compared to sovereignty of the State, which means absolute power, the Government can exert power within the legally defined boundaries. Government institutions e.g. legislature, executive and judiciary have their respective powers and functions as defined by the Constitution-
• Opposition to State by its citizens is understood as rebellion, but opposition to a Government is accepted as legitimate.
Importance of Constitution
• Various forms of Governments are practiced in different countries
• The forms of government are contained in the Constitution of the countries.
• Constitution means a document having a special legal sanctity, which sets out the framework and principal functions of the Government.
• The idea of Constitutionalism suggests ways and means to work-out the governmental organisation which exercises power and ensures at the same time, individual freedom and liberty.
• At the same time, these governmental institutions are not only essential but also useful for the smooth functioning of the society.
• But the power of the State and of the government should not be absolute
• Constitutionalism suggests a way of reconciling power of the State with individual liberty by prescribing the principles of organising State.
• The Constitution outlines the vision of the framers and is the most important document of the State.
• Constitution is an expression of faith embodying the hopes that people have from the State and the promises that they wish to make for the future.
• Constitution ensures certain rights to citizens and defines their duties, eg: part III of the Constitution
• It can also be termed as the "Fundamental Law”a country which reflects people's faith and aspirations.
Dynamic Nature of Constitution
• A Constitution is an extension of the philosophical and organizational frameworks into the future.
• But a State has to face the challenges of changing social, economic and political conditions in the society.
• All living Constitutions provide for procedures for introducing changes in them by means of amendments. So, the Constitution is not static,but dynamic.
Written and unwritten Constitutions
Constitution of most countries of today came into existence as a result of their conscious decision to have such a document.
• Written constitutions provide institutional arrangements and procedures in written form. American (1776) and French (1789) constitutions. "
• Unwritten constitution e.g. Britain
• But, the laws and institutions of British Constitution have gradually evolved over the centuries. The British Constitution is an 'unwritten' Constitution. It comprises the constitutional conventions that act as precedents for the working of institutions another documents such as the statutes and Acts of Parliament. Here the Parliament is supreme, unlike the 'written' Constitution where, the Constitution is supreme.
• In Britain, any change in the Constitution is possible by means of laws passed by the Parliament. There is no distinction between an ordinary law and a constitutional law. This is an example of the most flexible form of Constitution.
Framing of the Present Constitution of India
• The Constitution of India was framed and adopted by the Constituent Assembly of India.
• The Constituent Assembly was set up in November 1946 as per the Cabinet Mission Plan of 1946.
• The members were elected indirectly by the Provincial Assemblies in the ratio of one member per one million population.
• There were a total of 389 members in the Constituent Assembly of which 296 were elected by the members of the Provincial Assemblies and the rest were nominated by the Princely States.
• Its first meeting was held on 9th December 1946, with Sachidanand Sinha as the interim President.
· On 11th December 1946, Dr. Rajendra Prasad was elected as the President of the Constituent Assembly.
· The historic Objective Resolution' was moved in the Constituent Assembly by Pt. Jawahar Lal Nehru on 13th December 1946.
· The Constituent Assembly formed 13 important committees for framing the Constitution.
· The Drafting Committee was appointed on 29 August 1947, with Dr.B.R. Ambedkar as the Chairman.
· The first draft of the Constitution was prepared in October 1947.
· The Draft Constitution of India prepared by the Drafting Committee was submitted to the President of the Assembly on 21 February1948.
· The clause-by-clause consideration of the Draft Constitution was taken up between 15 November 1948 and 17 October 1949.
· On 26 November 1949, the people of India through the Constituent Assembly adopted, enacted and gave to themselves the Constitution of India.
· The Constitution was finally signed in by the members of the Constituent Assembly on 24 January 1950, which was the last day of the Assembly.
· The Constitution came into full operation with effect from 26 January1950.
· During this period the Constituent Assembly acted as a 'temporary Parliament' [15 August 1947- 26 November 1949].
· The Constitution was approved by the members and was signed in by 284 members of the Constituent Assembly.
· It is considered to be the second lengthiest Constitution in the world after the Constitution of Yugoslavia.
· Originally, it had 22 parts, 395 articles and 8 schedules.
· The Constituent Assembly took 2 years, 11 months and 18 days to frame the Constitution.
· It cost the exchequer Rs 6.4 crore.
· The design of the National Flag was adopted by the Constituent Assembly on July 22, 1947.
· The National Anthem was adopted by the Constituent Assembly on January 24, 1950.
· The Constituent Assembly of India was converted into the provisional Parliament of India on November 26, 1949.
· The only State having Constitution of its own is Jammu & Kashmir.
· The first elections to the Parliament were held in 1952.
· The first amendment to the Constitution was effected in 1951.
· Delhi was made the National Capital Territory in 1991.
· The demand for the Constituent Assembly to draft the Constitution of India was, for the first time, raised by the Congress in 1935.
· The British Government accepted this demand, for the first time, in the August Offer' of 1940.
· The seats were allocated to three communities-Muslims, Sikhs and General-in proportion to their population.
· The Mountbatten Plan of June 3, 1947 announced the partition of the country and a separate Constituent Assembly for the proposed State of Pakistan.
Phases of the Constituent Assembly
i) 1st Phase: As Constituent Assembly under the limitations of Cabinet Mission Plan from 6th December 1946 to 14th August 1947.
ii) 2nd Phase: As Constituent Assembly, a Sovereign body + Provisional Parliament from 15th August 1947 to 26th November 1949.
iii) 3rd Phase: As a Provisional Parliament from 27th November 1949 to March 1952.
Committees of the Constituent Assembly
The Constituent Assembly appointed 22 committees to deal with different tasks of Constitution- making. Out of these, 10 were on procedural affairs and 12 on substantive affairs. These were as follows: Committees on Procedural Affairs.
1. Steering Committee (Chairman: Dr K M Munshi)
2. Rules of Procedure Committee (Chairman: Dr Rajendra Prasad)
3. House Committee
4. Hindi Translation Committee
5. Urdu Translation Committee
6. Finance and Staff Committee
7. Press Gallery Committee
8. Committee on the effect of Indian Independence Act of 1947
9. Orders of Business Committee
10. Credentials Committee.
Committees on Substantive Affairs
1. Drafting Committee (Chairman: Dr B R Ambedkar)
2. Committee for Negotiating with States (Chairman: Dr Rajendra Prasad)
3. Committee on Chief Commissioners' Provinces
4. Union Constitution Committee (Chairman: Jawaharlal Nehru)
5. Provincial Constitution Committee (Chairman: Sardar Patel)
6. Special Committee to Examine the Draft Constitution (Chairman: Sir Alladi Krishnaswamy Iyer)
7. Commission on Linguistic Provinces
8. Expert Committee on Financial Provisions
9. Ad-hoc Committee on National Flag
10. Union Powers Committee (Chairman: Jawaharlal Nehru)
11. Ad-hoc Committee on the Supreme Court
12. Committee on Fundamental Rights and Minorities (Chairman: Sardar Patel)
· Consequently the members of the Constituent Assembly representing those areas which were to be included in Pakistan,East Bengal, North-West Frontier Province (NWFP), West Punjab,Sindh, Baluchistan, and Sylhet district of Assam, were no more members of the Constituent Assembly of India.
· North-West Frontier Province and Sylhet decided through a referendum to remain with Pakistan.
· Therefore, the membership of the Constituent Assembly for India was reduced to 299 after partition.
· The first meeting of the Constituent Assembly was boycotted by the Muslim League.
· Shri. B.N. Rau was appointed as the Legal Advisor of the Constituent Assembly.
· Dr. B.R. Ambedkar is rightly regarded as the 'Father of the Constitution of India'.
· January 26 was selected as the date of commencement of the Constitution of India because on this date in 1930, Indian people observed 'Independence day', following the resolution of Purna Swaraj' of the Congress session held in the midnight of December 31, 1929 at Lahore.
Drafting Committee
Among all the committees of the Constituent Assembly, the most important committee was the Drafting Committee set up on August 29, 1947. It was this committee that was entrusted with the task of preparing a draft of the new Constitution. It consisted of seven members. They were:
1. Dr B R Ambedkar (Chairman)
2. N Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. DrKM Munshi
5. Syed Mohammad Saadullah
6. N Madhava Rau (He replaced B L Mitter who resigned due to ill-health)
7. T T Krishnamachari (He replaced D P Khaitan who died in 1948) The Drafting Committee, after taking into consideration the proposals of the various committees, prepared the first draft of the Constitution of India, which was published in February 1948. The people of India were given eight months to discuss the draft and propose amendments. In the light of the public comments, criticisms and suggestions, the Drafting Committee prepared a second draft, which was published in October 1948.
The Drafting Committee took less than six months to prepare its draft. In all it sat only for 141
days.
Enforcement of the Constitution
Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367,
380, 388, 391, 392 and 393 came into force on November 26, 1949 itself.
The remaining provisions (the major part) of the Constitution came into force on January 26, 1950. This day is referred to in the Constitution as the 'date of its commencement', and celebrated as the Republic Day.
Parts Subject Matter Articles Covered
I The Union and its territory................................................................ 1 to 4 II Citizenship........................................................................................... 5 to 11
III Fundamental Rights ........................................................... 12 to 35
IV Directive Principles of State Policy.................................................. 36 to 51
IV-A Fundamental Duties ................................................................ 51-A
V The Union......................................................................... 52 to 151
Chapter I The Executive.............................................................. 52 to 78
Chapter II Parliament ................................................................ 79 to 122
Chapter III Legislative Powers of the President .................................. 123
Chapter IV The Union Judiciary .............................................. 124 to 147
Chapter V Comptroller and Auditor-General of India ……….. 148 to 151
VI The States........................................................................ 152 to 237
Chapter I General................................................................................................ 152
Chapter II The Executive.......................................................... 153to 167
Chapter III The State Legislature ........................................... 168 to 212
Chapter IV Legislative Powers of the Governors ............................... 213
Chapter V The High Courts..................................................... 214 to 232
Chapter VI Subordinate Courts .............................................. 233 to 237
VII The States in Part B of the First Schedule (Repealed)................. 238
VIII The Union Territories ...................................................... 239 to 242
IX The Panchayats ........................................................... 243 to 243-0
IX-A The Municipalities .................................................. 243-P to 243-ZG
X The Scheduled and the Tribal Areas........................... 244 to 244-A
XI Relations between the Union and the States.................. 245 to 263 Chapter I Legislative Relations ............................................... 245 to 255
Chapter II Administrative Relations......................................... 256 to 263 XII Finance, Property, Contracts and Suits ....................... 264 to 300-A Chapter I Finance.................................................................... 264 to 291
Chapter II Borrowing ........................................................... 292 and 293
Chapter III Property, Contracts, Rights, Liabilities,
Obligations and Suits......................................................................... 294 to 300
Chapter IV Right to Property ........................................................ 300-A
XIII Trade, Commerce and Intercourse within
the Territory of India......................................................................... 301 to 307
XIV Services under the Union and the States...................... 308 to 323 Chapter I Services.................................................................. 308 to 314
Chapter II Public Service Commissions ............................... 315 to 323
XIV-A Tribunals ................................................................ 323-A to 233-B
XV Elections...................................................................... 324 to 329-A
XVI Special Provisions Relating to Certain classes
Like SCs, STs, OBCs and the Anglo-Indians................................. 330 to 342
XVII Official Language........................................................... 343 to 351
Chapter I Language of the Union ...................................... 343 and 344
Chapter II Regional Languages............................................ 345 to 347
Chapter III Language of the Supreme Court,
the High Courts, and so on.................................................. 348 and 349
Chapter IV Special Directives ........................................... 350 and 351
XVIII Emergency Provisions .................................................. 352 to 360
XIX Miscellaneous ............................................................... 361 to 367
XX Amendments of the Constitution.................................................... 368
XXI Temporary, Transitional and Special Provisions............... 369 to 392 XXII Short title, Commencement, Authoritative Text in
Hindi and Repeals.......................................................................... 393 to 395
SCHEDULES OF THE CONSTITUTION
Numbers
Subject Matter
First Schedule
1. Names of the States and their territorial jurisdictions.
2. Name of the Union Territories and their extent.
Second Schedule
Provisions relating to the emoluments, allowances, privileges, and so on of:
1. The President and the Governors of the States
2. The Speaker and the Deputy Speaker of the Lok Sabha
3. The Chairman and the Deputy Chairman of the Rajya Sabha
4. The Speaker and the Deputy Speaker of the Legislative Assemblies in the States
5. The Chairman and the Depuly Chairman of the Legislative Councils in the States
6. The Judges of the Supreme Court and of the High Courts
7. The Comptroller and Auditor-General of India
Third Schedule
Forms of the Oaths or Affirmations for:
1. The Union Ministers
2. The candidates for election to the Parliament
3. The Members of the Parliament
4. The Judges of the Supreme Court
5. The Comptroller and Auditor General of India
6. The State Ministers
7. The candidates for election to the State Legislature
8. The members of the State Legislature
9. The Judges of the High Courts
Fourth Schedule
Allocation of the seats in the Rajya Sabha to the States and the Union Territories.
Fifth Schedule
Provisions relating to the administration and the control of the Scheduled Areas and the Scheduled Tribes.
Sixth Schedule
Provisions relating to the administration of the Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram.
Seventh Schedule
Division of the powers between the Union and the States in terms of List I (the Union List), List II (the States List) and List 111 (the Concurrent List).
Eighth Schedule
Includes the languages recognised by the Constitution. Originally, it had 14 but presently there are 22 languages. They are: Assamese, Bengali, Gujarati. Hindi. Kannada, Kashmiri, Konkani, Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Sindhi, Tamil. Telugu and Urdu. Sindhi was added by the 21st Amendment Act of 1967, while Konkani, Manipuri and Nepali were added by the 71st Amendment Act of 1992. The 92nd Amendment Act, 2003 added Bodo, Dogri, Maithili and Santhali.
Ninth Schedule
Validation of certain Acts and regulations, mostly relating to the land reforms. There are 284 such Acts. This Schedule was added to the Constitution by the First Amendment Act of 1951 which provided, that by incorporating any law into it, the State would make it immune from judicial scrutiny
Tenth Schedule
Provisions relating to the disqualification of the legislators on grounds of defection. This Schedule was added by the 52nd Amendment Act of 1985. It is also known as the Anti-defection Law.
Eleventh Schedule
Specifies the powers, authority and the responsibilities of the Panchayats. It has 29 matters. This schedule was added by the 73rd Amendment Act of 1992.
Twelfth
Schedule
Specifies the power, authority and the responsibilities of the Municipalities. It has
18 matters. This Schedule was added by the 74th Amendment Act of 1992.
Democracy
• Democracy literally means in its original Greek form, 'rule of the people' (Demos-people, kratia-rule). But better still, in the words of the great American President Abraham Lincoln, democracy may be defined as a 'government of the people, by the people, for the people'-
• It was the end of the First World War that saw the wave of popularity for democracy, both as an ideal and as a system. It was in that War that it was proclaimed that the War was being fought to make the world safe for democracy.
• Two events in the eighteenth century and two in the twentieth century, may be recognised as significant landmarks in the onward march of humanity towards the democratic ideal.
• The American Declaration of Independence 1776, led to the establishment of world's first federal democracy, with its famous Bill of Rights.
• The ringing slogan of the French Revolution, 1789, projected powerfully the centrality of the three vital principles of Liberty, Equality and Fraternity. Since then they have remained the pillars of the edifice of democracy.
• The October Socialist Revolution in Russia, 1917, proclaimed, the triumph of the common man as the creator of history.
• Independence of India in 1947, which came as the fulfilment of the national movement, opened on the one hand, the floodgates of decolonization in Asia, Africa and Oceania, and on the other resulted in the emergence of the world's largest democratic polity.
• Each of the four events and the processes generated by them, have passed through ups and downs, and revealed several shortcomings and deviations in actual work experience. Nevertheless they constitute in world history, glorious stages in the unfolding of the democratic idea.
• In our own age and time, democracy means more than a mere form of government. In its ideal and comprehensive form, democracy, means, or ought to mean, a way of life, an order of society, a pattern of culture, a model of economic relations, a form of political system, and a type of state.
• Theoretically speaking, democracy is a term used to convey at least five specific meanings: (i) a form of government, (ii) a type of state, (in) a pattern of social system, (iv) a way of life (v) culture. The comprehensive meaning of democracy then should entail a mix of all the five specific elements without which democracy is not a complete, genuine and an authentic system and socio-political ideal.
IMPLICATIONS OF DEMOCRACY AS A FORM OF GOVERNMENT
The following are the implications of democracy as a form of government.
a) The people are sovereign. It is the vesting of the sovereignty in the people that entitles them to make decisions.
b) In most states the participation of the people in making or executing laws is through elected representatives.
c) The representatives should be responsible to the people and be responsive to the hopes and aspiration of the people. This responsibility is ensured and enforced through a number of devices.
d) As a form of government democracy offers an opportunity to a minority to turn itself into a majority with the help of public support
UNITARY AND FEDERAL GOVERNMENTS
Governments can be classified on the basis of the degree of centralization of powers territorially.
On this basis governments can be classified into.
GOVERNMENT
UNITARY GOVERNMENTS
FEDERAL GOVERNMENTS
Unitary Government:
· Political Scientists classified governments into unitary and federal on the basis of distribution of powers between the centre and the provinces.
· Unitary Government is one in which one central authority habitually exercise the supreme legislative authority.
· Unitary Government is prevalent in several states like England, France, Belgium, Italy, Srilanka, Iran Denmark etc.
Federal Government:
· Federal Government is prevalent in several states like U.S.A., Canada, Switzerland, Australia. The term ‘Federation’ is derived from a Latin word ‘Foedus’ which means ‘treaty or agreement’.
· Federal Government comes into existence in two ways namely integration and disintegration.
· According to Integration method some independent states form as a new state by losing their sovereign identity. E.g. U.S.A and Switzerland.
· The disintegration methods: The states came into existence due to the devolution of powers by the unitary states for satisfying local needs. Ex. Canada, Brazil, Yugoslavia.
Features
Unitary Government
Federal Government
1. Single Government: There exists one powerful government in this system. The government possesses and exercises all powers.
2. Provincial Governments: Provincial governments may or may not exist. If they exist, they depend on the Union government for their continuation and survival.
3. Lack of autonomy: Provincial governments
1. Written, Rigid and Supreme Constitution: A federal government posses a written constitution. That constitution contains detailed provisions relating to the governmental powers, rights of people and the relations between the two. Such a constitution is a rigid one. It is considered as the supreme law of the state. It creates the
centre and federating units and allocates
do not enjoy political and a administrative autonomy. They are formed and contained by the union government for administrative convenience. They enjoy such powers delegated by the union. They have to adopt the policies of the Union.
4. Constitution: A Unitary government may or may not possess a written constitution. As the scope for conflicts between the Union and Provinces does not arise, Unitary government functions well even without a constitution.
5. Single Legislature: In a Unitary government we observe only one legislature. That legislature exists in the union government. It enjoys supreme legislative powers in making, amending and repealing the laws. Its laws are applicable to all the individuals and institutions in the state.
6. Single Citizenship: Citizens in Unitary government enjoy only one citizenship irrespective of their religion, region, language and economic considerations.
7. No division of powers: In a Unitary government powers are not divided between Union and Provinces.
powers between the two.
2. Two governments: Normally a federation consists of two governments – Central and State governments. The Central government supervises national affairs. The state government loo after the subjects of provincial importance.
3. Division of Powers: In a federation, powers are divided between the centre and states. Matters of national importance like defence, foreign affairs, railways, currency etc. are given to the centre. The statutes are entrusted with the maintenance of provincial subjects like agriculture irrigation, health etc.
4. Independent Judiciary: In a federation judiciary enjoys independent powers. It hears the disputes arising between Centre and States or between people and various governments. It acts as the final interpreter of the constitution.
5. Constitutional Amendment: The Centre and the States play an important role in amending the constitution of federal state. While the Central legislature can introduce minor changes in the constitution, most of the provisions can be changed by the joint efforts of the two governments. However, the central legislature takes initiative in proposing constitutional amendments.
6. Bicameral Legislature: We find bicameral legislature federal states. Generally the Lower House consist of member directly elected by the people. The upper house represents the interests of federating units.
7. Special Representation to States: The States enjoy special representation in the upper chamber of the Union Legislature. The Upper chamber reflects the interests of states. It checks the excessive interference of centre in the affairs of states.
8. Double Citizenship: In some federations
like. U.S.A. citizens enjoy two kinds of citizenship, one in the centre and another in
the states.
DIRECT DEMOCRATIC DEVICES
· While modern States by and large, due to their large size and population and the sheer impossibility of practical arrangement, do not provide for the direct participation of the people in legislation, in Switzerland, certain direct democratic devices are practiced both in the Federal Government and in the Cantons, as part of its historic political tradition.
· Some other States have also made provision in their system,
· These include France, Federal Republic of Germany, USSR, Australia, and in certain states of the United States of America.
· There are four types of direct democratic devices prevalent in the world in which the people, as citizens and electorate, directly participate:
i) the making of a law, called Initiative;
ii) the endorsement or rejection of a stipulated law or a constitutional amendment, called Referendum;
iii) the withdrawal of an elected representative or an official, if he does not continue to command the confidence of the people, called Recall; and,
iv) the expression of a political opinion of the people on a major question of public or state importance, called Plebiscite.
Initiative
This is a method of more direct sharing of the people in legislation. Normally three procedures are adopted. One, a prescribed number of voters, through a petition, suggest to the legislature that a certain law (including constitutional law) be initiated. Two, voters themselves may draft a bill of law and obtain popular votes for its adoption. Three, voters may ask the legislature to consider a particular question of law and then put it to the voters for their decision.
The underlying corrective purpose of the initiative is two-fold to overcome any lapse or omission of the legislature in failing to make a law desired by the people; and to assert the sovereign controlling right of the people over their elected representatives, by making a law desired by the people regardless of the wishes of the legislature.
Referendum
This is a direct democratic process in which a proposed law or a draft constitutional amendment is put to popular vote, in order to ascertain the will of the people as the ultimate political sovereign. If they sendorse the proposal by a majority it becomes law, and if they reject it then the proposal is dropped. For certain kinds of laws like constitutional amendments, referendum is provided as a compulsory requirement; for others it is left to the discretion of the legislature, or to the demand of the people.
Initiative and Referendum are criticised on several counts. They weaken the role of a truly representative parliament. As they seldom attract a majority of people, most decisions are on minority vote. They are far too crude instruments for careful and well considered legislation; because common people do not understand law-making. They cause delay and complicate the process of normal legislation, and tend to embarrass and confuse the Government.
Recall
It is a device by which the people can "call back" a representative-be he an elected legislator, appointed executive officer or a nominated judge-before the completion of his normal term if he ceases to enjoy their confidence. This device is used in several states of USA, in Switzerland and in the Federal Republic of Germany.
It should be added, however, that its demerits outweigh its merits. It gives a power to the people, which if wrongly or mischievously used, can weaken the role of the legislator, intimidate and corrupt an executive official, and impair the independence and confidence of a judge.
Plebiscite
It is a procedure of obtaining the political opinion of the people on certain major issues of public importance or statecraft, in order to determine their wish and to provide appropriate guidance in policy formulation. This is not a direct legislative device, but a direct political device. Plebiscites are used to solve problems of international frontiers, of internal boundaries in a federal state, of demands and concerns of national minorities, etc. The United Nations also provides for the use of plebiscite in the peaceful settlement of disputes between two sovereign states.
CHAPTER-3
Nature of the Indian Constitution
Architects of our constitution describe Indian Constitution as 'Federal'-But many constitutional experts hesitate to characterize Indian Constitution as Federal.
Federation Meaning
• It is a group of regions or states (partially self governing) under a Central Government or a Federal Government.
• A dual form of Government is the prime feature of a Federation. In a Federation, the field of government is divided between the Federal and State Governments- A Federation is crafted too well so as to avoid any clash between the two in the case of dominance. They enjoy considerable independence within their sphere of governance.
• The existence of co-ordinate authorities independent of each other is the gist of the federal principle.
Characteristics of Federal Government
1. Distribution of powers: An essential feature of a federal Constitution is the distribution of powers between the Central Government and the Governments of the several units forming the federation.
2. Supremacy of the Constitution: The Constitution is binding on the Federal and the State Governments. The Central Government as well as the State Governments derive their powers from the Constitution. Also, neither of the two Governments should be in a position to override the provisions of the Constitution related to the powers and status enjoyed by the other.
3. Written Constitution: The Constitution must be necessarily a written one. This is basically to avoid any doubt about the supremacy of the Constitution as well as to clearly demarcate the powers between the Central and the State governments.
4. Rigidity of the Constitution: This feature is a corollary to the supremacy of the Constitution. Rigidity does not mean unamendability of the Constitution, but simply means, the power of amending the Constitution, especially those regulating the status and powers of the Federal and the State Governments, should not be confined exclusively either to the Federal or to the State Governments.
Difference between a Federation and a Confederation
Federation
Confederation
1. Federation is a close association (legal) between two or more units.
1. confederation is a loose association of two or more states.
2. In a federation, units normally do not have the right to secede, as in India and Pakistan
2. In a confederation, the states always enjoy the right to secede as CIS former USSR
3.A federation is a sovereign body
3. In confederation the units are sovereign
4. In federation, there is a legal relation between the federation and its people
4. In confederation the people are citizens of the respective units of confederation.
5. Authority of the Courts: There must be an authority that can prevent the Federal and State Government from encroaching upon each other’s powers. Secondly, there should be a final Supreme Court which should not be dependent upon the Federal or State Government and should have the last word in matters involving Constitutional affairs.
PROVISIONS OF INDIAN CONSTITUTION, WHICH ARE NOT STRICTLY FEDERAL IN CHARACTER
1. In the USA and Australia, the states have their own Constitutions which are equally powerful as the federal Constitutions, but in India, there are no separate Constitutions for the member States.
2. India follows the principle of uniform and single citizenship, but in the USA, and Australia, double citizenship is followed.
3. In the USA, it is not possible for the Federal Government to unilaterally change the territorial extent of a State but in India, the Parliament can do so even without the consent of the State concerned (Art 3). Thus, the States in India do not enjoy the right to territorial integrity.
4. If the President declares national emergency for the whole or part of India under Art. 352, the Parliament can make laws on subjects, which are otherwise, exclusively under the State List. The Parliament can give directions to the States on the manner in which to exercise their executive authority in matters within their charge. The financial provisions can also be suspended. Thus in one stroke, the Indian federation acquires a unitary character. However, such a situation in not possible in other federal Constitutions.
5. The VII Schedule of the Indian Constitution distributes the legislative subjects on which the Parliament and the State Legislatures can enact laws under three lists: Union, State and Concurrent.
· The Union List contains 99 subjects over which the Parliament has exclusive control, while the State List contains only 61 subjects over which the State Legislatures have control.
· Moreover, the most important subjects, except only one i.e. the State tax, are under the union List.
· Further, in the event of a conflict between the union and State laws on Concurrent subjects, the letter must give way to the former to the extent of such contradiction.
· Furthermore, the Residuary power i.e. the power to enact laws on subjects not falling under any of the three Lists lies with the Centre (Canadian model) and not with the States, as is the case in the USA and Australia.
6. The Parliament has the exclusive authority to make laws on the 99 subjects of the union List (Schedule VII), but the States do not have such exclusive rights over the State List. Under certain circumstances and situations, the Parliament can legislate on subjects of State List. There are five such situations:
· Under Art. 249, if the Rajya Sabha passes a resolution with not less then 2/3rd majority, authorizing Parliament to make laws on any State subjects, on the ground that it is expedient or necessary in the national interest, Parliament can legislate over that subject Such laws shall be in force for only one year, and can be continuously extended any number of times, but for not more than one year at a time.
· Under Art. 250, if national emergency is declared under Art. 352, Parliament has the right to make respect to all the 61 State subjects automatically, i.e. the State List behaves like Concurrent List.
· Under Art. 253, Parliament can make laws even on State List to comply with the international agreements to which India is a party. The States cannot oppose such a move.
· Under Art. 356, if President’s rule is imposed in a State, the powers of the Legislature of that State become exercisable by or the Legislature of that State become exercisable by or under the Parliament. This gives the Parliament full power to legislate on any matter included in the State List.
7. Under Art. 155, the Governor of a State is appointed by the President and the former is not responsible to the State legislature. Thus indirectly, the Centre enjoys control over the State through the appointment of the Governor.
8. If financial emergency is declared by the President under Art. 360, on the ground that the financial stability or credibility of India or any of its units is threatened, all the Money Bills passed by the State Legislatures during the period of financial emergency are also subjects to the control of the Centre.
9. Under Art. 256, the Centre can give administrative directions to the States, which are binding on the latter. Along with the directions, the Constitution also provides measures to be adopted by the Centre to ensure such compliance.
10. Under Art. 312, the All India Services officials- IAS, IPS and IFS(Forest)- are appointed by the Centre, but are paid and controlled by the State. However, in case of any irregularities by the officer, States cannot initiate any disciplinary action except suspending him/her.
11. Judges of the High Courts are appointed by the President in consultation with the Governors under Art. 217 and the States do not play any role in this.
· Thus, apart from certain provisions which are biased towards the Union, the Constitution of India, in normal times, is framed to work as a federal system.
· But in times of war and other emergencies, it is designed to work as though it were unitary.
· The federal Constitutions of the USA and Australia, which are placed in a tight mould of federalism, cannot change their form. They can never be unitary as per the provisions of the Constitution.
· But, the Indian Constitution is a flexible form of federation- a federation of its own kind.
Salient Features of our Constitution
1. One of the most elaborate constitutions in the world- Originally 395 Articles, 22 Parts & 8 Schedules
Factors for bulkiness
a) Framers of the Constitution had gained the experience from the working of all known Constitutions of the world. They knew its drawbacks also.
b) For welfare and autonomy of tribals, certain areas known as Tribal and Scheduled Areas to be governed by special provisions in the Constitution.
c) Unlike USA and Australian Constitution, our Constitution does not prescribe for the separate Constitution for states (Canadian model).
d) Special provisions for backward classes
e) Not only Fundamental Rights but also DPSPs are incorporated.
f) Detailed provisions relating to exercise of executive and administrative powers have been laid down- Framers were not sure about the strength of our democracy.
g) Vastness of the country and its diversity.
2. Constitution declares India as a sovereign, socialist, secular, democratic, republic.
1. Balancing Parliamentary supremacy with Judicial Review.
2. Unique blend of rigidity and flexibility.
3. Fundamental Rights.
4. Directive Principles of State Policy.
5. A federation with strong centralising tendency-Federal constitution acquires a unitary character during the time of emergency.
6. Adult suffrage: Art 326- Adoption of universal Adult Suffrage without any qualification either of sex, religion, property or the like.
7. An independent and integrated Judiciary.
8. Single Citizenship.
9. Fundamental Duties: To serve a constant reminder to every citizen that while the constitution has specifically conferred them certain Fundamental Rights, it also requires the citizens to observe certain basic norms of democratic conduct and democratic behavior.
SOURCES OF OUR CONSTITUTION
· The most profound influence was exercised by the Government of India Act of 1935- the federal scheme, office of the governor, power of federal judiciary, emergency powers etc. were drawn from this Act.
· The British practice influenced the lawmaking procedure, rule of law, single citizenship, besides, of course Parliamentary system with ministerial responsibility.
· Removal of Supreme Court and High Court judges from US constitution.
· The Irish Constitution was the source of the Directive Principles, method of Presidential elections, nomination of members of Rajya Sabha by the President.
· From the Canadian Constitution was taken the idea of a federation with a strong Centre, and placing residuary powers with the Centre.
· The Weimar Constitution of Germany was the source of provisions concerning the suspension of fundamental rights during emergency, while the idea of a Concurrent List was taken from the Australian constitution.
Provisions of Constitution and their source
1. Independence of Judiciary
USA Constitution
2. Judicial Review
USA Constitution
3. President as the Executive head
USA Constitution
4. president as the supreme commander of the Armed forces
USA Constitution
5. The Vice-President as the ex-officio chairman of the council of stages.
USA Constitution
6. Fundamental Rights
USA Constitution
7. Preamble
USA Constitution
8. Removal of Supreme Court and High Court Judges.
USA Constitution
9. Impeachment procedure of the President
USA Constitution
10. The Vice-President acting as the chairman of the upper house.
USA Constitution
11. Law making procedures
UK Constitution
12. Rule of Law
UK Constitution
13. System of single citizenship
UK Constitution
14. Parliamentary system with ministerial responsibility
UK Constitution
15. Bicameralism
UK Constitution
16. Federation with a strong Centre
Canadian constitution
17. Appointment of State Governors by the Central Government
Canadian constitution
18. Advisory jurisdiction of the supreme court
Canadian constitution
19. Distribution of powers between the Union and the States and placing residuary powers with the centre
Canadian constitution
20. Directive Principles
Irish Constitution
21. Method of Election of the President.
Irish Constitution
22. Nomination of members of the Rajya Sabha by the President
Irish Constitution
23. Emergency and its effect on Fundamental Rights
Weimar Constitution of Germany
24. The Concurrent List
Australian Constitution
25. Provision regarding trade, commerce and intercourse
Australian Constitution
26. Joint sitting of 2 houses of the parliament
Australian Constitution
27. Constitutional Amendments
South African Constitution
28. Method of election of the members of the Upper House
South African Constitution
29. Fundamental Duties
Japanese Constitution and USSR Constitution
30. Ideals of justice (Social, Economical and political)
USSR Constitution
31. Republic
French Constitution
32. Ideals of Liberty, Equality and Fraternity in the Preamble.
French Constitution
Milestones
1687
The first Municipal Corporation in India was set up in Madras.
1772
Lord Warren Hastings created the office of District Collector.
1829
The office of the Divisional Commissioner was created by Lord William Bentick.
1859
The portfolio system was introduced by Lord Canning.
1860
A system of Budget was introduced.
1870
Lord Mayo's resolution on financial decentralisation visualised the development of local self- government institutions in India.
1872
First census in India was conducted during Lord Mayo's period.
1881
First regular census was conducted during the period of Lord Ripon.
1882
Lord Ripon's resolution was hailed as the 'Magna Carta' of iocal self-government. He is regarded as the 'Father of local self-government in India'.
1905
The tenure system was introduced by Lord Curzon.
1905
The Railway Board was set up by a resolution of the Government of India
1921
Public Accounts Committee was created at the Centre.
1921
Railway Budget was separated from the General Budget.
1935
Reserve Bank of India was established by an Act of the Central Legislature.
NATIONAL SYMBOLS
National Flag
· The National Flag is a horizontal tricolour of deep saffron (kesaria) at the top, white in the middle and dark green at the bottom in equal proportion.
· The ratio of width of the flag to its length is two to three.
· In the centre of the white band is a navy-blue wheel which represents the chakra.
· Its design is that of the wheel which appears on the abacus of the Sarnath Lion Capital of Ashoka.
· Its diameter approximates to the width of the white band and it has24 spokes.
· Designed by Pingali Venkayya.
· The design of the National Flag was adopted by the Constituent Assembly of India on 22 July 1947.
· Apart from non-statutory instructions issued by the Government from time to time, display of the National Flag is governed by the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971.
The New Flag Code
· One can host the flag only from sunrise to sunset.
· The ratio of width to length of the flag should be 2:3.
· Don't print it on a costume, cushion or napkin either.
· Don't use as shroud for funerals except in state funerals or armed forces or other para-military forces funerals.
· Don't drape the flag on vehicles.
· Don't hoist it upside down. Must not touch the ground.
· Must fly higher than all other flags except that of the UN or othernations.
· Don't fly a damaged flag.
· The amended code came into effect from January 26, 2003.
National Emblem
• The state emblem is an adaptation from the Sarnath Lion Capital of Ashoka.
• In the original, there are four lions, standing back to back, mounted on an abacus with a frieze carrying sculptures in high relief of an elephant, a galloping horse, a bull and a lion separated by intervening wheels over a bell-shaped lotus.
• Carved out of a single block of polished sandstone, the Capital is crowned by the Wheel of the Law (Dharma Chakra).
• In the state emblem, adopted by the Government of India on 26 January 1950, only three lions are visible, the fourth being hidden from view.
• The wheel appears in relief in the centre of the abacus with a bull on right and a horse on left and the outlines of other wheels on extreme right and left.
• The bell-shaped lotus has been omitted.
• The words Satyameva Jay ate from Mundaka Upanishad, meaning Truth Alone Triumphs', are inscribed below the abacus in Devanagari script.
National Anthem
• The song "Jana-gana-mana", composed originally in Bengali by Ravindra Nath Tagore, was adopted in Hindi version by the Constituent Assembly as the National Anthem of India on 24th January 1950.
• It was first sung on 27th December 1911 at the Calcutta session of the Indian National Congress.
National Song
• The song Vande Mataram, composed in Sanskrit by Bankim Chandra Chatterji, was a source of inspiration to the people in their struggle for freedom.
• It has an equal status with 'Jana-gana-mana'.
• The first political occasion when it was sung was the 1896 session of the Indian National Congress.
National Calendar
• The national calendar based on the Saka Era, with Chaitra as its first month and a normal year of 365 days was adopted from 22 March 1957 along with the Gregorian calendar for the following official purposes:
i) Gazette of India,
ii) news broadcast by All India Radio,
iii) calendars issued by the Government of India and
iv) Government communications addressed to the members of the public.
• Dates of the national calendar have a permanent correspondence with dates of the Gregorian calendar, 1 Chaitra falling on 22 March normally and on 21 March in leap year.
National Animal
• The magnificent tiger, Panthera tigiris, is the national animal.
• To check the dwindling population of tigers in India, Project Tiger' was launched in April 1973.
• According to 2011 census- there are 53 tiger reserves.
National Bird
• The Indian peacock, Pavo cristatus, the national bird of India, is a colourful, swan-sized bird, with a fan-shaped crest of feathers, a white patch under the eye and a long, slender neck.
• The male of the species is more colourful than the female, with a glistening blue breast and neck and a spectacular bronze-green train of around 200 elongated feathers.
• The female is brownish, slightly smaller than the male and lacks the train.
• The elaborate courtship dance of the male, fanning out the tail and preening its feathers is a gorgeous sight.
• The peacock is fully protected under the Indian Wildlife (Protection) Act, 1972.
National Flower
• Lotus (Nelumbo Nucifera Gaertn) is the national flower of India.
National Tree
• Indian fig tree, Ficus bengalensis, whose branches root themselves like new trees over a large area.
• The roots then give rise to more trunks and branches.
• Because of this characteristic and its longevity, this tree is considered immortal and is an integral part of the myths and legends of India.
National River
· The Ganga or Ganges is the longest river of India flowing over 2,510 kms of mountains, valleys and plains.
· It originates in the snowfields of the Gangotri Glacier in the Himalayas as the Bhagirathi River.
· It is later joined by other rivers such as the Alaknanda, Yamuna, Son, Gomti, Kosi and Ghagra.
· The Ganga river basin is one of the most fertile and densely populated areas of the world and covers an area of 1,000,000 sq.kms.
· There are two dams on the river - one at Haridwar and the other at Farakka.
· Dolphin is an endangered animal that specifically habitats this river.
· The Ganga is revered by Hindus as the most sacred river on earth.
· Key religious ceremonies are held on the banks of the river at cities such as Varanasi, Haridwar and Allahabad.
· The Ganga widens out into the Ganges Delta in the Sunderbans swamp of Bangladesh, before it ends its journey by emptying into the Bay of Bengal.
· Ganga Action Plan (GAP) was started in April 1986 to reduce the pollution load in river.
· National River Ganga Basin Authority was set up in 2009 under chairmanship of Prime Minister and consisting of Chief Minister of State in which river flows to monitor the implementation.
National Fruit
• A fleshy fruit of the tree Mangifera indica, the mango is one of the most important and widely cultivated fruits of the tropical world.
National Game
• Hockey is the National Game of India.
• The Golden Era of hockey in India was the period from 1928 - 1956 when India won 6 consecutive gold medals in the Olympics.
• During the Golden Era, India played 24 Olympic matches, won all24.
• The two other gold medals for India came in the 1964 Tokyo Olympics and the 1980 Moscow Olympics.
National Pledge
General Pledge
• India is my country. All Indians are my brothers and sisters.
• I Love my country. I am proud of its rich and varied culture, always strive to be worthy of it.
• I shall love and respect my parents, teachers and elders.
• To my country and my people I pledge my devotion
National Integration Pledge
· I solemnly pledge to work with dedication to preserve and strengthen the freedom and integrity of the nation.
· I further affirm that I shall never resort to violence and that all differences and disputes relating to religion, language, region or other political or economic grievances should be settled by peaceful and constitutional means.
· In their well being and prosperity alone lies my happiness.
CHAPTER-4
The Preamble
"WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRETERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."
[Note : Italicized words were added by the 42nd Amendment of 1976.]
Utility of the Preamble:
• The Preamble to the Constitution embodies the essence of the entire Constitution.
• It sets out the main objectives, which the Constituent Assembly intended to achieve.
• The 'Objective Resolution', proposed by Pandit Nehru and passed by the Constituent Assembly, ultimately became the Preamble to the Constitution of India.
• As the Supreme Court has observed, the Preamble is a key to unravel the minds of the makers of the Constitution. It also embodies the ideals and aspirations of the people of India.
• The Preamble is non-justiciable in nature, like the Directive Principles of State Policy, and cannot be enforced in a court of law.
• It can neither provide substantive power (definite and real power) to the three organs of the State, nor limit their powers under the provisions of the Constitution.
• The Preamble cannot override the specific provisions of the Constitution.
• In case of any conflict between the two, the latter shall prevail. So, it has a very limited role to play.
• As observed by the Supreme Court, the Preamble plays a limited and yet vital role in removing the ambiguity surrounding the provisions of the Constitution.
Is Preamble a part of the Constitution?
• The Supreme Court in the Kesavananda Bharati vs. State of Kerala (1971) case overruled its earlier decision (Berubari case) of 1960 and made it clear that it is a part of the Constitution and is subject to the amending power of the Parliament as any other provisions of the Constitution, provided the basic structure of the Constitution as found in the Preamble is not destroyed. However, it is not an essential part of the Constitution.
• In the latest S.R. Bommai case, 1993 regarding the dismissal of three BJP Governments in MP, Rajasthan and Himachal Pradesh, Justice Ramaswamy said, "the Preamble of the Constitution is an integral part of the Constitution. Democratic form of government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution".
• The question arises as to why Preamble was amended when it is a basic feature. By the 42ndamendment, [be Preamble was amended to include ‘socialist’, 'secular', integrity,' as it was assumed that these amendments are clarificatory and qualificatory in nature. They are already implicit in the Preamble.
Significance of the Preamble
1. The Preamble declares that it is the people of India who had enacted, adopted and given the Constitution to themselves. Thus, sovereignty lies ultimately with the people.
2. It also declares the ideals and aspirations of the people that need to be achieved. Ideals are different from aspirations. While the former have been achieved with the Constitution proclaiming India as Sovereign, Socialist, Secular. Democratic Republic', the latter include justice, liberty, equality and fraternity, which are yet to be achieved. The ideals are the means to achieve aspirations.
3. Sovereign: It emphasizes that there is no authority outside India on which the country is in any way dependent.
4. Socialist: According to the Constitution, the term means the achievement of socialistic pattern of society through democratic means.
5. Secular: it means that the State shall not discriminate against the citizens in any way on the basis of religion. The State regards religion to be the private affair of a person including the right to believe or not to believe in a religion
6. Democratic: It means that the rulers are elected by the people only, have the authority to run the government. India follows a system of 'Representative Democracy', where the MPs and MLAs are elected directly by the people.
7. Republic: The word 'Republic' means that there exists no hereditary ruler in India and all the Authorities of the State are directly or indirectly elected by the people.
8. The Preamble states that the objectives to be secured to every citizen are-
• Justice- social, economic and political.
• Liberty- of thought, expression, belief, faith and worship.
• Equality- of status, opportunity; and to promote among them all.
• Fraternity- assuring the dignity of the individual and the unity and integrity of the Nation.
9. Regarding justice, one thing is clear that the Indian Constitution expects political justice to be the means to achieve social and economic justice, by making the State more and more welfare oriented in nature.
10. While social justice is ensured by abolishing any title of honour (Art. 18) and untouchability (Art. 17), All citizens are treated equally irrespective of their status in society as a result of the accident of birth, race, caste, religion, sex, title etc. Article 38 says that the state should strive to promote the welfare of the people
11. Economic justice is guaranteed primarily through the Directive Principles. Rich and poor are treated alike. Article 39: Certain principles of policy to be followed by the state. (equal pay for equal work)
12. Political justice in India is guaranteed by universal adult suffrage without any sort of qualification,
e.g. education, property, social status and tax return. All citizens have the right to participate in the political process.
· Articles 325 and 326 provide for the equal rights to all adults to participate in elections.
· ARTICLE 325: No person to be ineligible for inclusion in or to claim to be included in a special, electoral rolls on grounds of religion, race, caste or sex.
· ARTICLE 326: Elections to the House of People (Lok Sabha) and to the legislative assemblies of states to be on the basis of adult franchise.
13. Liberty is an essential attribute of a free society that helps in the fullest development of intellectual, mental, and spiritual faculties of an individual. The Indian Constitution guarantees six democratic freedoms to the individuals under Art. 19 and Right to freedom of religion under Arts. 25-28.
14. The fruits of liberty cannot be fully realized until there is an equality of status and opportunity. Our Constitution makes it illegal, any discrimination by the State only on the basis of religion, caste, sex, or place of birth (Art. 15) by throwing open public places to all, by abolishing untouchability (Art. 17) and by abolishing titles of honour (Art. 18). However, to bring the hitherto neglected sections of the society into the national mainstream, the Parliament has passed certain laws for the SCs, STs, OBCs and also, women (Protective Discrimination).
15. Fraternity: Fraternity as enshrined in the Constitution means a sense of brotherhood prevailing amongst all the sections of the people. However, fraternity is an evolving process and by the 42nd amendment, the word 'integrity' was added, thus giving it a broader meaning. The unity and integrity of the nation is possible through the dignity of the individual.
· ARTICLE 51 A (Fundamental Duties) makes it the duty of every citizen to uphold and protect the sovereignty, unity and integrity of India and promote harmony and brotherhood.
Introduction
CHAPTER-5
The Union & its Territory
The First article of the constitution declares that India is a union of states. Explaining the significance of the term “Union of States”, Dr. Ambedkar said that it implied two things:
First, the Indian Federation was not the result of an agreement among the units.
Secondly, the componenet units had no freedom to secede from the Union. The expression 'Union of India' needs to be distinguished from the expression 'Territory of India'. While the Union of India includes only the States which share federal powers with the Centre, Territory of India includes the entire territory over which the sovereignty of the country is exercised.
Part 1 of the constitution comprises of 4 articles concerned with the territory of India.
Art. 1: Name and territory of the union:
'India, that is Bharat shall be a Union of States'.
Art. 3: Formation of new States and alteration of areas, boundaries or names of existing States.
1. Parliament can form new States, and can alter the area, boundaries or names of the existing States by a law passed by a simple majority.
2. No Bill for the formation of new States or alteration of the boundaries or names of the existing State shall be introduced in either House of the Parliament, except on the recommendation of the President.
3. The President, before introducing the Bill in the Parliament, shall refer it to the State Legislature concerned for its opinion within a specified time limit.
4. If the State Legislature does not give its opinion within the specified time limit, the time limit may be extended.
5. The bill may be introduced even if the opinion has not come.
6. The Parliament is not bound to accept or act upon the views of the State Legislature.
7. It is not necessary to make fresh reference to the State Legislature every time an amendment to the Bill is proposed and accepted.
8. Art.4(2): No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.
REORGANISATION OF STATES
• The independent Indian Government appointed a commission under S.K. Dhar to examine the feasibility of reorganisation of States on linguistic basis. The S.K. Dhar Commission preferred reorganisation for administrative convenience rather than on a linguistic basis.
• A Congress Committee under Jawaharlal Nehru. Sardar Patel and Pattabhi Sitaramayya (the JVP Committee) too did not favour a linguistic base.
• However, in 1953, the first linguistic state came into being in Andhra Pradesh, created by separating the Telugu speaking areas from the State of Madras following a prolonged agitation and the death of Potti Sriramulu after a 56-day hunger strike.
• As there were several other demands for reorganisation of States on a linguistic basis, a commission was set up under Justice F. Fazl Ali with H.N. Kunzru and KM. Panikkar as members to study the demand.
• It submitted its report in 1955. Its suggestions were accepted with modifications and the States Reorganisation Act was passed in 1956.
• As a result, the fourfold distribution of States was replaced by 14 States (Andhra Pradesh, Assam, Bihar, Bombay, Jammu & Kashmir, Kerala, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh and West Bengal) and six Union Territories (Andaman and Nicobar Islands, Delhi, Himachal
Pradesh, Laccadive, Minicoy and Amandivi, Manipur and Tripura) via the Seventh Constitution Amendment.
• Presently with subsequent reorganisations there are 29 States and 7 Union Territories.
New States and Union territories.
1. Andhra Pradesh: Created by the State of Andhra Pradesh Act, 1953 by carving out some areas from the State of Madras.
2. Kerala: Created by the State Reorganisation Act, 1956. It comprised Travancore and Cochin areas.
3. Karnataka: Created from the Princely State of Mysore by the State Reorganisation Act, 1956. It has been renamed Karnataka in 1973.
4. Gujarat and Maharashtra: The State of Bombay was divided into two States i.e., Maharashtra and Gujarat by the Bombay (Reorganisation) Act, 1960.
5. Nagaland: it was carved out from the State of Assam by the State of Nagaland Act, 1962.
6. Haryana: it was carved out from the State of Punjab by the Punjab (Reogranisation) Act, 1966.
7. Himachal Pradesh: The Union Territory of Himachal Pradesh was elevated to the status of State by the State of Himachal Pradesh Act, 1970.
8. Meghalaya: First carved out as a sub-State within the State of Assam by 23rd Constitutional Amendment, 1969. Later, in 1971, it received the status of a full-fledged State by the North-Eastern Areas (Reorganisation) Act, 1971.
9. Manipur and Tripura: Both these States were elevated from the status of Union Territories by the North-Eastern Areas (Reorganisation) Act, 1971.
10. Sikkim: Sikkim was given first the Status of Associate State by the 35th Constitutional Amendment Act, 1974. It got the status of a full State in 1975 by the 36th Amendment Act, 1975.
11. Mizoram: It was elevated to the status of a full State by the State of Mizoram Act, 1986.
12. Arunachal Pradesh: It received the status of a full State by the State of Arunachal Pradesh Act, 1986.
13. Goa: Goa was separated from the Union Territory of Goa, Daman and Diu and was made a full- fledged State by the Goa, Daman and Diu Reorganisation Act, 1987. But Daman and Diu remained as Union Territory.
14. Chhattisgarh: Formed by the State Reorganisation Act 2000 by dividing Madhya Pradesh on November 1, 2000.
15. Uttaranchal: Formed by the State Reorganisation Act 2000 by dividing Uttar Pradesh on November 9, 2000.
16. Jharkhand: Formed by the State Reorganisation Act 2000 by dividing Bihar on November 15, 2000.
17. Telangana: Became the 29th state of the country vide Andhra Pradesh reorganisation Act 2014 by dividing Andhra Pradesh.
18. Ladakh – Became a 8the Union Territory of India. Without a legislature vide Jammu and Kashmir Reorganisation Bill 2019.
19. Jammu and Kashmir - Become a Union Territory with a legislature vide Jammu and Kashmir Reorganisation Bill 2019.
STATES WITH SPECIAL PROVISIONS
• The State of Jammu & Kashmir has been given special status under Article 370, which became operative on November 17, 1952. The separate Constitution of the State was drafted by the Constituent Assembly of Jammu & Kashmir and became effective on January 26, 1957, which has been revoked recently.
• There are special provisions for the States of Andhra Pradesh, Gujarat and Maharashtra under Article 371, for the State of Nagaland under Article 371 A, for Assam under Article 371 Band for Sikkim under Article 371F.
• Delhi was made the National Capital Territory in 1991.
370. Temporary provisions with respect to the State of Jammu and Kashmir. (Repealed)
371. Special provision with respect to the States of Maharashtra and Gujarat 371A. Special provision with respect to the State of Nagaland.
371B. Special provision with respect to the State of Assam. 371C. Special provision with respect to the State of Manipur
371D. Special provisions with respect to the State of Andhra Pradesh 371E. Establishment of Central University in Andhra Pradesh
371F. Special provisions with respect to the State of Sikkim 371G. Special provision with respect to the State of Mizoram
371H. Special provision with respect to the State of Arunachal Pradesh 371-I. Special provision with respect to the State of Goa
371-j Special provisions with respect to State of Karnataka
Art 371-J: Special provisions with respect to State of Karnataka
• Inserted by the Constitution (Ninety-eighth Amendment) Act 2012 (w.e.f. 1-10-2013).
• The President may, by order made with respect to the State of Karnataka, provide for any special responsibility of the Governor for establishment of a separate development board for Hyderabad- Karnataka region with the placed each year before the State Legislative Assembly.
• There can be reservation of a proportion of seats in educational and vocational training institutions in the Hyderabad-Karnataka region for students who belong to that region by birth or by domicile.
• There can be reservation in jobs for Hyderabad-Karnataka region applicants in Government jobs
CHAPTER- 6
CITIZENSHIP
• The Citizenship is mentioned in Part II of the Indian Constitution.
• The Citizenship provisions are covered under articles 5 to 11 of the Indian
Constitution.
• The Citizenship provides
ü full political membership in the state
ü permanent allegiance to the state
AND
ü Official recognition by the state of his integration into the political system.
ü The citizen pledges loyalty to the state ü The state protects the citizens.
• The Citizenship to an individual also brings
ü Rights
ü Duties
ü Privileges
And
ü Obligations
• (All these do not belong to aliens)
• The Public (government) offices are open only to the citizens.
• Only the citizens are eligible for the offices of:
ü The President - (Article 58(1)(a))
ü The Vice President - (Article 66(3)(a))
ü The Judge of the Supreme Court - (Article 124(3))
ü The Judge of a High Court - (Article 217(2))
ü The Attorney-General - (Article 76(2))
ü The Governor of a State - (Article 157)
ü The Advocate-General - (Article 165)
ü The right of suffrage (vote) for the election to the House of the people (Lok sabha) and the Legislative assembly of every state - (Article 326)
ü Right to become a member of Parliament - Article (84) ü Right to become a member of a state legislature – Article (191(d))
ü The citizens are eligible for recruitment to all public services.
ü Only the citizens have the right to vote
ü The concept of Citizenship came into existence since the adoption of the Constitution on November 26, 1949.
ü The Constitution of India laid down the law in regard to who would be the citizens of India at the time of commencement of the Constitution.
ü The Constitution of India has not provided for the mode of acquisition and termination of citizenship.
ü As per Article 11 of the Indian Constitution the parliament could regulate the right of citizenship by law.
ü The Parliament passed the Citizenship Act, 1955 for acquisition and Termination of the Citizenship.
WHO ARE THE CITIZENS OF INDIA?
• As per the Article 11 of the Indian citizenship Act, the Parliament has enacted the
Citizenship Act, 1955.
• The Citizenship Act, 1955 has been amended in 1986, 1992, 2003 and 2005.
• The Articles 5 to 8 of the Indian Constitution confers the citizenship on the people at the time of the commencement of the Indian Constitution.
• Persons domiciled in India
• Persons migrated from Pakistan
• Persons migrated to Pakistan but later returned to India
• Persons of Indian origin residing outside India
• Article 5: This provides that a person becomes entitled to the citizenship of India if,
at the commencement of the Constitution he has his domicile in the territory of India,
Or
ü he or either of his parents were born in India
Or
ü He has been ordinarily resident in the territory of India for not less than 5 years immediately before the commencement of the Constitution.
DOMICILE:
• The term Domicile is not defined in the Indian Constitution.
• Domicile is a person’s residence where he intends to live on a permanent basis.
ü Permanent residence
And
ü Intention to reside indefinitely
ü Constitutes the Domicile.
• Article 6: This provides for citizenship rights of migrants from Pakistan before the commencement of the Constitution. This provides 2 types of distinctions.
ü The people migrating to India before July 19, 1948
And
ü The people migrating to India after July 19, 1948
Note: Permit system for migration was introduced on July 19, 1948.
• A person migrated before July 19, 1948 shall be deemed to be a citizen of India on the commencement of the Constitution if.
ü The person Or
ü His parents (born in India as defined by the GOI Act, 1935)
OR
ü Any of grandparents (born in India as defined by the GOI Act, 1935)
And
ü Has been ordinarily residing in India since the date of the migration.
• In case of migration after July 19, 1948
ü He should have been registered as a citizen of India by an officer appointed for the purpose by the government of India.
And
ü Has been residing in India for at least 6 months immediately preceding the date of application.
ü Article 7: A person who migrated to Pakistan from India after March 1, 1947, but later returned to India for resettlement could become a citizen of India.
ü For this the person he had to be the resident of India for 6 months preceding the date of his application for registration.
ü Note: the meaning of Migration mentioned in Article 7 is the migration before the commencement of the Constitution.
ü The person migrating from Pakistan to India, after January 26, 1950 are governed by the Citizenship Act, 1955.
• Article 8: This Article provides that
ü A person
Or
ü Any of his parents
Or
• any of his grand parents
ü born in India as defined by the Government of India Act, 1935
ü but ordinarily residing outside India shall become a citizen of India if registered as a citizen of India by the diplomatic representative of India in that country.
ü This is with respect to before or after the commencement of the Constitution of India.
Article 9: This provides that if a person voluntarily acquired the citizenship of another country, he shall forfeit the right of the citizenship of India.
ü The above clause is applicable to cases arising before the commencement of the Indian Constitution.
ü Such type of cases arising after the commencement of the Constitution shall be dealt by the Citizenship Act, 1955.
ü Note: whether a person has lost the citizenship of India after acquiring the
Citizenship of the other country is to be decided by the government of India.
ü Article 10: this provides that every person who is or is deemed to be a citizen of India under any of the provisions in the articles 5 to 10 shall continue to be a citizen of India.
ü This is subject to the provisions of any law made by the parliament.
ü Article 11: This article provides for the Parliament to enact legislations pertaining to the acquisition and termination of the citizenship of India.
ü The Parliament passes Citizenship Act, 1955 providing for the acquisition and termination of the citizenship.
• The citizenship can be acquired by 5 ways.
ü By Birth
ü By Descent
ü By Registration
ü By Naturalization
ü By incorporating a territory
• The citizenship can be terminated in 3 methods.
ü Renunciation
ü Termination
ü Deprivation
ACQUIRING THE CITIZENSHIP OF INDIA:
• BY BIRTH:
ü This was amended in the year 1986.
ü A person is the citizen of India by birth if
ü He is born in India on or after January 26, 1950 but before June 30, 1987
OR
ü He is born in India on or after July 1, 1987 but at the time of the birth either of his parents was a citizen of India.
ü Note: The children of foreign diplomats posted in India and enemy aliens cannot acquire the Indian citizenship by birth.
• BY DESCENT:
ü A person born outside India was entitled to Indian citizenship if his father was an India citizen.
ü NOTE: Not Mother
ü This was amended in the year 1992.
ü A person born outside India on or after January 26, 1950 is a citizen of India by descent if, at the time of his birth either of his parents was an Indian citizen.
• BY REGISTRATION:
ü Certain categories of persons can be registered as Indian citizens.
ü Persons of Indian origin who are ordinarily resident in India for 5 years immediately before making an application for registration
ü Persons of Indian origin who are ordinarily resident in any country or place outside India
ü Persons who are married to citizens of India and who are ordinarily resident in India for 5 years immediately before making an application for registration
ü Minor children of persons who are citizens of India
And
ü Persons who are citizens of commonwealth countries
(Note: The period of acquisition of citizenship by registration was increased from 6 months to five years).
• BY NATURALIZATION:
ü A foreigner can acquire the citizenship of India by naturalization if
ü He renounces the citizenship of other country
ü He is of good character
ü He has an adequate knowledge of a language mentioned in the 8th schedule of the Indian Constitution
ü He is not a citizen of a country where Indian citizens cannot become Naturalized citizens
ü The government can waive all above conditions if a person has rendered distinguished service to the science, art, literature, world peace or human progress.
• BY INCORPORATION OF TERRITORY:
ü If any foreign territory becomes a part of India, then the government specifies through notification that the people of that territory shall be the citizens of India.
HOW THE CITIZENSHIP IS LOST?
• BY RENUNCIATION:
ü This is a voluntary act by which a person holding the citizenship of India as well as that of another country may give up one of them.
ü When a person renounces the citizenship every minor child of his ceases to be an Indian citizen
ü But, the child within one year after attaining 18 years of age may resume Indian citizenship.
• BY TERMINATION:
ü When an Indian citizen acquires the citizenship of other country voluntarily; the Indian citizenship is automatically terminated.
• BY DEPRIVATION:
ü This is a compulsory termination of the Indian citizenship by the central government if
v The citizen has obtained the citizenship by fraud
Or
v The citizen has shown the disloyalty to the constitution of India
Or
v The citizen has unlawfully traded or communicated with the enemy during a war
Or
v The citizen has, within 5 years of registration or naturalization been imprisoned in any country for 2 years
Or
v The citizen has been ordinarily resident out of India for 7 years continuously.
• NOTE: This is not applicable to students and employees who are serving in the international organizations. If a person registers annually at the Indian consulate his intention to retain the Indian citizenship.
• MISCELLANEOUS:
ü The Constitution avoided the dual citizenship.
ü There is only once citizenship related to the domicile in the territory of whole India and not in a part of the country.
ü Note: In US there is dual citizenship.
ü The Citizenship act of 1955 provided for the Commonwealth Citizenships. But this provision was repealed by the Citizenship (Amendment) Act, 2003.
The PIO (Person of Indian Origin) card entitles a person to visit India without a visa.
Rights Not Available to Foreigners
1. Right not to be discriminated against on grounds of race, caste, religion, sex or place of birth (Art 15)
2. Right to equality of opportunity in public employment (Art 16).
3. Right to six fundamental freedoms under Art 19
4. Right of suffrage
5. Cultural and educational rights conferred by Arts 29 & 30
6. Rights to hold certain offices—President, Vice-President, Governor of States, Judges of Supreme Court or High Courts, Attorney General of India, Comptroller and Auditor General, etc
7. Right to contest election and get elected to either House at the Centre or State
· While all the aliens are denied the above-mentioned rights and advantages, enemy aliens are subjected to a 'special' disability: they are not entitled to the benefit of the procedural provisions in clauses (1) - (2) of Article 22 relating to arrest and preventive detention.
· An enemy alien is not only the one who is a subject of a State at war with India but also an Indian citizen who voluntarily reside in or trade with such a State
SEVEN YEARS before making application under section 5(1) (a) (throughout the period of twelve months immediately before making application and for SIX YEARS in the aggregate in the EIGHT YEARS preceding the twelve months).
· Persons who are married to a citizen of India and who are ordinarily resident in India for SEVEN YEARS (as mentioned at (a) above) before making application under section 5(1)(c).
· Minor children whose both parents are Indian citizens under section (1)(d)
· Persons of full age whose both parents are registered as citizens of India under section 5(1)(a) or section 6(1) can acquire Indian citizenship under section 5(1)(e).
· Persons of full age and capacity who has been registered as an OVERSEAS CITIZEN OF INDIA (OCI) for five years and residing in India for ONE YEAR before making application under section 5(1)(g).
· Clarification: A person shall be deemed to be a Person of Indian origin if he, or either of his parents, was born in undivided India or in such other territory which became part of India after the 15th day of August, 1947.
· Any minor child can be registered as a citizen of India under Section 5(4), if the Central Government is satisfied that there are "special circumstances" justifying such registration. Each case would be considered on merits.
DUAL CITIZENSHIP
· The Indian Constitution, under Article 11, gives power to the Indian Parliament to legislate on citizenship matters. Accordingly, Parliament enacted the Citizenship Act in 1955. Article 9 says that citizenship means full citizenship. The Constitution does not recognize divided allegiance. Section 10 of the Citizenship Act says that a person cannot have allegiance to the Indian Constitution as well as to the Constitution of another country. The Indian Courts have consistently ruled against dual citizenship.
· If an Indian citizen acquires citizenship of another country, he looses the Indian citizenship. For example, if a child of parents, who are citizens of India, is born in another country and does not
renounce the citizenship of that country on attainment of adulthood he/she looses the Indian Citizenship.
· The reason for the denial of dual citizenship is that citizenship entails certain duties like serving in the army, if the need be.
NRI
An Indian Citizen who stays abroad for employment/carrying on business or vocation outside India or stays abroad under circumstances indicating an intention for an uncertain duration of stay abroad is a non-resident. (Persons posted in UN. Organisations and Officials deputed abroad by Central / State Governments and Public Sector undertakings on temporary assignments are also treated as non-residents). Non – Resident foreign citizens of Indian Origin are treated on par with non-resident Indian Citizens (NRIs) for the purpose of certain facilities.
PRAVASI BHARATIYA DIVAS (PBD)
· Pravasi Bharatiya Divas (PBD) is celebrated on 9th January every year to mark the contribution of Overseas Indian community in the development of India. January 9 was chosen as the day to celebrate this occasion since it was on this day in 1915 that Mahatma Gandhi, the greatest Pravasi, returned to India from South Africa, led India's freedom struggle and changed the lives of Indians forever.
· PBD conventions are being held every year since 2003. These conventions provide a platform to the overseas Indian community to engage with the government and people of the land of their ancestors for mutually beneficial activities. These conventions are also very useful in networking among the overseas Indian community residing in various parts of the world and enable them to share their experiences in various fields.
Main categories of NRIs
The following are the main three categories of NRIs:-
(i) Indian citizens who stay abroad for employment or for carrying on a business or Vocation or any other purpose in circumstances indicating an indefinite period of stay abroad.
(ii) Indian citizens working abroad on assignment with foreign government agencies like United Nations Organisation (UNO), including its affiliates, International Monetary Fund (IMF), World Bank etc.
(iii) Officials of Central and State Government and Public Sector undertaking deputed abroad on temporary assignments or posted to their offices, including Indian diplomat missions, abroad.
PIO
The term PIO is defined under Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India), Regulations,2000.
The definition is partially amended by Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) (Second Amendment) Regulations, 2009 to include Mother & Grandmother.
PIO means:
· An individual (not being a citizen of Pakistan or Bangladesh or Sri Lanka or Afghanistan or China or Iran or Nepal or Bhutan),
· Who at any time, held an Indian Passport or
· Who or either of whose father or mother or whose grandfather or grandmother was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955.
OVERSEAS CITIZENSHIP OF INDIA (OCI)
· The Prime Minister of India in the Pravasi Bhartiya Divas, 2005 made a statement to extend the facility of Overseas Citizenship of India (OCI) to Persons of Indian origin (PIOs).
· In order to implement the PM's statement, Citizenship (Amendment) Ordinance, 2005 was promulgated on 28th June 2005, which later became an Amendment Act. This Citizenship (Amendment) Act 2005 amends the Citizenship Act, 1955 by deleting Fourth Schedule of the Citizenship Act, 1955.
· The Constitution of India does not allow holding Indian citizenship and citizenship of a foreign country simultaneously. Based on there commendation of the High Level committee on Indian Diaspora, the Government of India decided to grant Overseas Citizenship of India (OCI) commonly known as 'Dual Citizenship'.
· A foreign national, who was eligible to become citizen of India on 26.01.1950 or was a citizen of India on or at anytime after 26.01.1950 or belonged to a territory that became part of India after 15.08.1947 and his/her children and grand children, provided his/her country of citizenship allows dual citizenship in some form or other under the local laws, is eligible for registration as Overseas Citizen of India (OCI). Minor children of such person are also eligible for OCI.
· However, if the applicant had ever been a citizen of Pakistan or Bangladesh, he/she will not be eligible for OCI.
· Persons registered as OCI have not been given any voting rights, election to Lok Sabha/Rajya Sabha/Legislative Assembly/Council, holding Constitutional posts such as President, Vice President, Judge of Supreme Court/High Court etc.
· Registered OCIs shall be entitled to following benefits:
i) Multiple entry, multi-purpose life long visa to visit India;
ii) Exemption from reporting to Police authorities for any length of stay in India; and
iii) Parity with NRIs in financial, economic and educational fields except in the acquisition of agricultural or plantation properties.
· A person registered as OCI is eligible to apply for grant of Indian citizenship under section 5(1)(g) of the Citizenship Act, 1955 if he/she is registered as OCI for five years and has been residing in India for one year out of the five years before making the application.
· The fee for application for registration as OCI is US $ 275 or equivalent in local currency for each applicant.
· As per the provisions of section 5(1) (g) of the Citizenship Act, 1955, a person who is registered as OCI for 5 years and is residing in India for 1 year out of the above 5 years, is eligible to apply for Indian Citizenship.
What are the advantages of OCI when compared to PIO cardholders?
i) OCI is entitled to life long visa free travel to India whereas for PIO cardholder, it is for 15 years,
ii) PIO cardholder is required to register with local Police authority for stay exceeding 180 days in India on any single visit whereas OCI is exempted from registration with Police authority for any length of stay in India.
OCI and PIO Card Merged
As per the announcements made by the previous regime, Person of Indian Origin (PIO) card scheme has been withdrawn by Government of India and has been merged with Overseas Citizen of India (OCI) card scheme w.e.f 9th January 2015. Hence as per Government of India Gazette Notification No. 11 dated 9th January 2015, all PIO cardholders are deemed to be Overseas Citizens of India cardholder.
The Citizenship Amendment Act - 2019
Background:
The Citizenship Amendment Bill (CAA Bill) was first introduced in 2016 by the Lok Sabha by amending the Citizenship Act of 1955. This bill was referred to a Joint Parliamentary Committee, whose report was later submitted on January 7, 2019. The Citizenship Amendment Bill was passed on January 8, 2019, by the Lok Sabha which lapsed with the dissolution of the 16th Lok Sabha. This Bill was introduced again on 9 December 2019 by the Minister of Home Affairs Amit Shah in the 17th Lok Sabha and was later passed on 10 December 2019. The Rajya Sabha also passed the bill on 11th December.
The CAA was passed to provide Indian citizenship to the illegal migrants who entered India on or before 31st December 2014. The Act was passed for migrants of six different religions such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan. Any individual will be considered eligible for this act if he/she has resided in India during the last 12 months and for 11 of the previous 14 years. For the specified class of illegal migrants, the number of years of residency has been relaxed from 11 years to five years.
CAA 2019
· Citizenship Amendment Bill 2019 gets Parliament’s nod.
What is Citizenship?
· Citizenship defines the relationship between the nation and the people who constitute the nation.
· It confers upon an individual certain right such as protection by the state, right to vote and right to hold certain public offices, among others, in return for the fulfilment of certain duties/obligations owed by the individual to the state.
Citizenship in India
· The Constitution of India provides for single citizenship for the whole of India.
· Under Article 11 of the Indian Constitution, Parliament has the power to regulate the right of citizenship by law. Accordingly, the parliament had passed the Citizenship act of 1955 to provide for the acquisition and determination of Indian Citizenship.
· Entry 17, List 1 under the Seventh Schedule speaks about Citizenship, naturalization and aliens. Thus, Parliament has exclusive power to legislate with respect to citizenship.
· Until 1987, to be eligible for Indian citizenship, it was sufficient for a person to be born in India.
· Then, spurred by the populist movements alleging massive illegal migrations from Bangladesh, citizenship laws were first amended to additionally require that at least one parent should be Indian.
In 2004, the law was further amended to prescribe that not just one parent be Indian; but the other should not be an illegal immigrant.
Who is an illegal migrant in India?
Under the Act, an illegal migrant is a foreigner who:
· Enters the country without valid travel documents like a passport and visa, or
· Enters with valid documents, but stays beyond the permitted time period.
Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.
What was the scenario before the passing of the Act?
· Under the existing laws, an illegal migrant is not eligible to apply for acquiring citizenship. They are barred from becoming an Indian citizen through registration or naturalisation.
· The Foreigners Act and the Passport Act debar such a person and provide for putting an illegal migrant into jail or deportation.
A person can become an Indian citizen through registration.
· Section 5 (a) of Citizenship act of 1955: A person of Indian origin who is ordinarily resident in India for seven years before making an application for registration;
· And they should have lived in India continuously for 12 months before submitting an application for citizenship.
Under the Citizenship Act, 1955, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.
What the Act intends to do?
· The Citizenship Amendment Act 2019 aims to make changes in the Citizenship Act, the Passport Act and the Foreigners Act if the illegal migrants belong to religious minority communities from three neighbouring countries of Bangladesh, Pakistan and Afghanistan.
· Simply put, the Citizenship Amendment Act will grant the illegal non-Muslim migrants the status of legal migrants despite them having come to India without valid documents and permission.
Features of CAA 2019
· The Act seeks to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India. In other words, the Act intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbours to become citizens of India.
· The legislation applies to those who were “forced or compelled to seek shelter in India due to persecution on the ground of religion”. It aims to protect such people from proceedings of illegal migration.
The amendment relaxes the requirement of naturalization from 11 years to 5 years as a specific condition for applicants belonging to these six religions.
The cut-off date for citizenship is December 31, 2014, which means the applicant should have entered India on or before that date.
The Act says that on acquiring citizenship:
· Such persons shall be deemed to be citizens of India from the date of their entry into India, and
· All legal proceedings against them in respect of their illegal migration or citizenship will be closed.
It also says people holding Overseas Citizen of India (OCI) cards – an immigration status permitting a foreign citizen of Indian origin to live and work in India indefinitely – can lose their status if they violate local laws for major and minor offences and violations.
Exception
· The Act adds that the provisions on citizenship for illegal migrants will not apply to the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, as included in the Sixth Schedule of the Constitution.
· These tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.
It will also not apply to the areas under the Inner Line Permit under the Bengal Eastern Frontier Regulation, 1873.
******
CHAPTER-7
FUNDAMENTAL RIGHTS
Are these Rights fundamental?
Yes, these Rights are regarded as fundamental because they are most essential for the attainment, by the individual, of his/her full intellectual, moral and spiritual stature
• These are enshrined in Part III of the Indian Constitution under Articles 12 to 35.
• These were borrowed from the US constitution (Bill of Rights).
• According to Dr. B R Ambedkar it is the most criticized part of the Constitution.
• The fundamental rights are justifiable.
In the original Constitution 7 Fundamental Rights are mentioned.
ü Right to Equality (14-18)
ü Right to Freedom (19-22)
ü Right Against Exploitation (23-24)
ü Right to Freedom of Religion (25-28)
ü Cultural and Educational Rights (29-30)
ü Right to property (31) (Deleted through the 44th amendment)
ü Right to Constitutional Remedies (32).
Features of Fundamental Rights
· They are not absolute. There can be restrictions imposed on them by the government. However the reasonableness of these restrictions can be decided by courts.
· These rights are non-permanent in nature and can be repealed or curtailed by parliament by amending the Constitution. This power is subject to doctrine of basic structure.
· These rights can also be suspended during national emergency except articles 20 and 21. Article
19 can be suspended only when national emergency is declared on grounds of external aggression.
· Its scope is further restricted by Article 31 A, Article 31B, and Article 31C, of directive principles.
· These rights are guaranteed and protected by the highest court of country, the Supreme Court. This means that the aggrieved person can directly approach the Supreme Court for its enforcement.
· Some of them are guaranteed exclusively for citizens while some others are guaranteed for citizens as well as non-citizens.
· Right against discrimination [Art 15(2)], Right against untouchability (Art 17) and Right against exploitation [Art (23) & (24)] can be enforced against the private individuals also.
• In the year 1978, through 44th amendment act Right to property was deleted from the list of Fundamental Rights.
• Now it is a legal right under Article 300 A in part XII of the constitution.
• The numbers of Fundamental Rights are 6 in the present day Constitution.
• The state can impose restrictions on Fundamental rights. (They are not absolute but qualified).
• Except Fundamental rights guaranteed under Articles 20 and 21 remaining Fundamental rights can be suspended during operation of National Emergency.
• Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression and not on the grounds of armed rebellion.
Article 12 explains the state. The state includes
ü The government and the parliament of India
ü The government and the state legislature
ü All local authorities (municipalities, Panchayat Raj, District boards, etc)
ü Other statutory and non statutory authorities (LIC, ONGC etc).
• The actions of the state (all the above said) can be challenged in the courts as the violation of Fundamental Rights.
• Article 13: All laws that are inconsistent with or in derogation of any of the Fundamental Rights shall be void.
• This article expressively provides for the doctrine of judicial review. This power is conferred to SC (Article 32) and High Courts (Article 226) that can declare a law unconstitutional and invalid on the grounds of contravention of any of the fundamental Rights.
• Note: The words “Judicial Review” are not mentioned in the Constitution.
RIGHT TO EQUALITY (14-18)
• Article 14: Equality before law and equal protection of laws.
Equality before law: The absence of any special privileges in favor of any person
ü Note: Equality before law is taken from the British Constitution.
ü Equal Protection of Laws: The equality of treatment under equal circumstances.
ü Note: This is taken from the US Constitution.
• Article 15: Prohibition of discrimination on the grounds only of religion, race, caste, sex, or place of birth. (Access to various places).
ü Exceptions:
ü Special provisions for children and Women
ü Socially and economically backward sections
ü Scheduled castes
ü Scheduled Tribes
• Article 16: Equality of opportunity in matters of Public employment.
• Article 16(4) empowers the state to make special provisions for the reservation of appointments or posts in favour of any “backward class of citizens” which in the opinion of state are not adequately represented in the services of the state.
• Article 17: Abolition of un-touch-ability and prohibition of its practice.
• Accordingly the Parliament passed Untouchability (offences) Act, 1955.
• In the year 1976, this act is renamed as Civil Rights Act, 1955.
• ARTICLE 18: Abolition of titles except military and academic.
• Note: On December 23, 2013 the High Court of Andhra Pradesh ordered two cinema personalities Mohan Babu and Bramhanandam to surrender 'Padma Sri' to the President.
RIGHT TO FREEDOM (19-22):
• ARTICLE 19: Protection of 6 rights.
• Right to freedom of speech and expression 19 (1) (a) (freedom of expression means the right to express one’s opinion by words of mouth, writing, printing, picture, or in any other manner)
ü Right to assemble peacefully and without arms
ü Right to form associations
ü Right to move freely throughout the territory of India
ü Right to reside and settle in any part of the territory of India
ü Right to practice any profession or to carry on any occupation, trade or business Right to acquire, hold, and dispose of property (deleted through 44th amendment)
• Note: On November 20, 2012 the Maharashtra police arrested 2 women (Shaheen and her
friend) for twitting in Facebook for the expression of their opinion after the demise of Shivasena leader Bal Thackery. This was objected many as the violation of article 19 (1) (a) of the Indian Constitution.
• Article 20: Protection in respect of conviction for offences.
ü No ex-post-facto Legislation:
ü No Double Jeopardy
ü No Self-incrimination
• Article 21: Protection of life and personal liberty except in accordance with the procedures established in law.
ü Right to live with human dignity, decent environment, privacy, free education up to 14 years etc.
• Article 21 A: Right to free and compulsory education for all the children.
• Note: This was present in Article 45 of the constitution. Through 86th amendment in 2002 it was made a fundamental right. This came into force on April 1, 2010.
• Article 22: Protection against arrest and detention in certain cases.
• Under punitive detention: right to be informed of the grounds of arrest, consult a legal practitioner, and produce before the magistrate within 24 hours.
• Under preventive detention: grounds of detention should be communicated, provide an opportunity to make representation.
RIGHT AGAINST EXPLOITATION (23-24):
• Article 23: Prohibition of traffic in human beings and forced labor.
• Article 24: Prohibition of employment of children in factories.
RIGHT TO FREEDOM OF RELIGION (25-28):
• Article 25: All persons are equally entitled to freedom of conscience ü
the right to freely:
Ø profess
Ø practice
Ø And propagate religion.
ü Note: Propagation does not include ‘forced conversions’.
• Article 26: Freedom to Manage Religious Affairs:
ü To establish and maintain institutions for religious and charitable purposes
ü Own and acquire movable and immovable property
ü Right to administer the property
• Article 27: Freedom for Taxation for promotion of a religion.
ü No person shall be compelled to pay taxes for the promotion and maintenance of any religion.
• Article 28: Freedom from attending religious instruction.
ü No religious instruction shall be provided in any educational institute wholly maintained out of state funds.
ü Religious instructions permitted if it is established by endowments or trust.
ü Article 28(3): No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
CULTURAL AND EDUCATIONAL RIGHTS (29-30):
• Article 29: Right to conserve language, script or culture.
ü The Article 29 grants protection to both religious and linguistic minorities.
• Article 30: Right of Minorities to Establish and administer Educational Institutions:
ü All Minorities have the right to establish and administer educational institutions of their choice.
RIGHT TO CONSTITUTIONAL REMEDIES (32):
• The Supreme Court and High Courts can issue writs.
• Right to move Supreme Court for the enforcement of Fundamental Rights including the writs of Habeas corpus, Mandamus, Prohibition, Certiorari and Quo warren to.
• Under Article 359 of the constitution provides the right to move Supreme Court can be suspended during national emergency
According to Dr. B R Ambedkar Article 32 is the ‘’Heart and Soul of the Indian Constitution
WRITS – TYPES AND SCOPE
The Supreme Court [under article 32] and the high courts [under article 226] can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
Habeas Corpus:
• Habeas Corpus means to produce the body.
• It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. Hence this is against arbitrary detention. This can be issued to a private person or public authorities.
Mandamus: (To Command):
• Issued to a public official asking him to perform his official duties that he has failed or refused to perform. (this cannot be issued against President or Governor or CJ of a HC or against any private person).
Prohibition: (to forbid):
• Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
Certiorari (To be certified or to be informed):
• Issued by a higher court to a lower court or tribunal either to transfer case pending with the latter to it or to squash the order of the latter in a case.
Quowarranto (By what Authority?):
• It is issued by a court to enquire into the legality of claim of a person to a public office.
NOTE: Under Representation of Peoples Act of 1951 a person is allowed to contest from not more than 2 constituencies. In the year 2001 the leader of AIADMK Jayalalitaa contested from 4 constituencies (Andipatti, Krishnagiri, Bhuvanagiri and Pudukottai). On November 20, 2012 the Supreme Court quashed a criminal proceeding against CM J Jayalalithaa initiated for filing 4 nomination papers in the 2001 assembly polls and asked Madras High Court to re-examine its order to lodge the case against her.
Note: As per SC the HC of Madras did not consider the 2 reports of the Returning Officer were not considered while passing the order.
The SC asked HC to examine the issue in 4 months. The SC order came on Jayalalithaas plea against the HC order to Election Commission to register a criminal case.
Note: All the 4 nominations of Jayalalithaas were rejected as she had been disqualified from contesting the polls at the that time due to her conviction in the TANSI land deal case. A former DMK MP C Kuppuswamy moved HC against her and the HC in June 2007 directed the EC to register a case and the same was stayed by the SC in July 2007.
The HC held that jayalalithaas declaration in 3rd and 4th constituencies (Bhuvanagiri and Pudukottai) that she has not been nominated from more than 2 segments was false to her own knowledge and amounts to violation of section 33 (7) (b) of the RPA as per which a candidate cannot contest from more than 2 constituencies.
• Article 33: The Parliament is empowered to abrogate the fundamental rights of the members of armed forces, Para-military forces, police forces, intelligence agencies and other related agencies.
• Note: The law made by the Parliament under Article 33 cannot be challenged in the court of law
• Article 34: This provides for the restriction of the fundamental rights while martial law is in force in any area within the territory of the country.
• Article 35: The Parliament makes laws to give effect to certain specified fundamental rights shall vest only in Parliament and not in the state legislature.
• As per the provisions of the Article 35 the Parliament prescribes residence as a condition for certain employments or appointments in a state or union territory or local authority. (Article 16).
• The Parliament can empower the lower courts (Other than Supreme Court and High Courts) to issue directions, orders, and writs of all kinds for the enforcement of the fundamental rights.
MISCELLANEOUS:
• The concept of Martial Law has been borrowed from the English Common Law.
• The words “Martial law” is not defined in the Constitution. The literal meaning is military rule.
• Martial law is imposed to restore the breakdown of law and order due to any reason.
• The concept of “Equality before law” is taken from UK.
Why FRs are not absolute?
• They are restricted rights. Unrestricted liberty becomes licence and jeopardises the liberty of others. If individuals are given absolute freedom of speech and action, the result will be chaos, ruin and anarchy.
JUDICIAL REVIEW AND FRS
Art 13 provides for Judicial Review of all legislations in India.
· The words “Judicial Review” are not mentioned in the Constitution.
Art. 13: Laws inconsistent with or in derogation of the Fundamental rights.
• Art 13(1): All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.
• Art 13(2): The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
• Art 13(3)(a): "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law: (b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed.
• Art 13(4): Nothing in this article shall apply to any amendment of this Constitution made under article 368.Inserted by the Constitution (Twenty-fourth Amendment) Act, 1971.
What is Doctrine of Eclipse?
· As per Article 13(1) of the Constitution, all laws enforced in India immediately before the commencement of the Constitution, in so far as they are inconsistent with any or all the fundamental rights shall be void to the extent of such inconsistency.
· The Supreme Court in the Bikaji Narain vs the State of Madhya Pradesh (1955) case propounded the 'doctrine of eclipse' and clarified that any such law is not dead altogether. It is, in fact, overshadowed by the fundamental rights and remains dormant.
· It is a good law when a question arises for the determination of lights and obligations incurred before the commencement of the Constitution, and also for the determination of the rights of persons who have not been given fundamental rights under the Constitution.
· When the shadow cast by the fundamental rights is removed by a subsequent amendment, the eclipsed parts of such a law get revised and effective again.
· Earlier, the Supreme Court stated that the doctrine of eclipse was applicable to pre-Constitutional laws only.
· However, in the State of Gujarat vs Shri Ambika Mills case (1974), the Court stated that the doctrine can be extended to the post-Constitutional laws as well.
Suspension of FRs
· The Constitution of India contains provisions for the suspension of Fundamental Rights in certain circumstances. During these circumstances Fundamental Rights guaranteed in Part III remain inoperative.
· When the President proclaims a National Emergency under Article 352, on grounds of war or external aggression (but not armed rebellion) the right guaranteed by Art. 19 are automatically suspended.
· As regards with the suspension of any or all of the other Fundamental Rights, the Constitution further empowers the President to issue a separate proclamation under Art. 359.
· However, an important change has been introduced here by the 44lh Amendment Act. 1978. This amendment prohibits the suspension of Article 20 and 21 under any circumstances (not even during National Emergency).
· Therefore, the position now is that during the operation of National Emergency the right to move to the court for the enforcement of any or all the Fundamental Rights, excepting those guaranteed by Article 20 and 21, can be suspended by a Presidential proclamation.
RIGHT TO PRIVACY
August 24, 2017 is a red-letter day in the history of India.
· In historic verdict, the Supreme Court establishes a new bar for civil liberties, individual rights and the freedom of choice in India; stresses Constitution's silences are important, too.
Privacy Meaning?
· A precise legal definition of 'privacy' doesn't exist. Some legal experts define privacy as a human right and international charters, like the Article 12 of the Universal Declaration of Human Rights, protect persons against "arbitrary interference" with one's privacy.
· Privacy can mean a range of things: the right to be left alone, freedom to dissent or protection from state surveillance.
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Context of Privacy and India
· The Puttaswamy judgement holds that the right to privacy is protected as a fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of India.
· Concerns about surveillance all across the globe due to Cambridge analytical and other scandals.
· Economic Survey also highlights the falling marginal cost of data that has led to a data explosion.
Background
· Privacy has been defined by the US judiciary as the right to be let alone. This concept is now being deemed by experts as insufficient in a large interconnected world.
· The Supreme Court of India opined (in Ram Jethmalani vs Union of India case.) that “it is important that human beings should be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner.”
· Privacy ensures that freedom of speech and expression survives. This is because once we are put under surveillance we will start to censor ourselves for fear of state action.
· Democratic ideals of Pluralism and diversity start in the mind. And only an unfettered mind free from fear can appreciate and revel in these ideals.
· Recently the use of private data for election campaigning brought out the controversy regarding large scale storage of public data.
· Facebook, Equifax, etc were also under fire for violating user privacy and using unethical means to track users’ lifestyle and movements.
· Repressive regimes like Saudi Arabia and China also extensively use data mining technology to monitor and surveil citizens. They use coercive methods to suppress dissent and censor free speech.
· India also had plans to initiate a mass surveillance programme but had to put it on hold after receiving widespread criticism.
What are the Concerns regarding Privacy in India?
· Having no privacy is like having a perpetual warrant in your name. If you feel you are under constant surveillance you will never enjoy freedom and liberty which are your fundamental rights.
· Unregulated access to data can lead to the suppression of dissent and censorship. Journalists, Human Rights Activists etc. can be put under an invisible prison of surveillance.
· People who are leading a lifestyle which is deemed a taboo by a certain section of the society might be vilified or targeted. For example homosexuals.
· Surveillance by Police also causes a concentration of power and puts civil liberties at serious risk.
· Law enforcement officials across the world are also accused of unauthorised data collection, data mining to predict travel plans etc to put citizen’s reputation at risk.
· Private details like travel details, shopping history financial details etc are used to create online granular profiles which are then sometimes used to spread specifically crafted fake news. This has increased the potency of fake news in the country.
· GDPR(General Data Protection Regulation)rules framed by the European Union (EU) has become a model for the world when it comes to privacy. Right to be forgotten is also in effect in the EU.
· SC in previous judgements has also asserted the need for a right to reputation. The society must be mature enough to understand in order to preserve reputations privacy is crucial.
Background on draft personal data protection Bill 2018 recommended Justice B.N. Srikrishna committee
· The draft bill recognises the ‘right to privacy’ as a fundamental right.
· The law does not have retrospective effect.
· The draft has recommended setting up a Data Protection Authority to prevent misuse of personal information. The draft Bill also provides for setting up an Appellate Tribunal.
· The penalty would be Rs.15 crore or 4% of the total worldwide turnover of any data collection/processing entity, for violating provisions.
· The three facets – the individual, the state and the industry – is considered in the bill with respect to data.
· The government will notify a certain type of data as critical data, which must be stored within the country. This is known as data localisation. Non-critical data can be stored outside the country subject to some conditions, as long as one copy of the data is available within India. Failure to take prompt action on a data security breach can attract up to Rs.5 crore or 2% of turnover as a penalty.
· ‘Data principal’ refers to the individual or the person providing their data. Processing of sensitive personal data should be on the basis of “explicit consent” of the data principal which should be given before the commencement of the processing.
· Anonymization refers to the irreversible process of transforming personal data into a form in which a data principal cannot be identified. Provisions of the draft bill do not apply to anonymised data as long as the anonymization process meets the standards set by the appropriate authority.
· The data principal will have the right to restrict or prevent continuing disclosure of personal data by a data processor which is known as the ‘right to be forgotten’. The draft bill also recognises the ‘right to be forgotten’ but this right does not allow for a total erasure is allowed in the European Union. The data holder may charge a reasonable fee to be paid for complying with such requests.
Do Indian citizens have right to privacy?
· The Supreme Court's landmark judgment unequivocally declares privacy a guaranteed fundamental right.
How is privacy protected in India?
· Courts in India have interpreted that the constitution guarantees a limited right to privacy primarily through Article 21, the right to life and liberty. Such court rulings protect citizens' rights in a range of matters: from freedom of movement to interception of communication.
Does privacy matter?
· The public debate about right to privacy arose after the government started collecting biometric data of citizens for Aadhaar. The government is pushing for Aadhaar, saying it is necessary to plug leakages in subsidy schemes and to ensure benefits reach the right people. But critics say the move violates privacy, is vulnerable to data breaches and potentially helps government spy on people.
Introduction
CHAPTER- 8
Directive Principles of State Policy
The principles embodied in this are directives to the various governments and government agencies (including village panchayats) to be followed as fundamental in the governance of the country. It shall be the duty of the State to apply these principles in making laws. Thus, they place an ideal before the legislators of India while they frame new legislation for the country’s administration. They lay down a code of conduct for the administrators of India while they discharge their responsibilities as agents of the sovereign power of the nation. In short. The Directive Principles enshrining the fundamentals for the realization of which the State in India stands. They guide the path which will lead the people of India to achieve the noble ideals which the Preamble of the Constitution proclaims: Justice, Social, economic and political: Liberty, Equality and Fraternity. It is this realization that implied a member in the Constituent Assembly to demand the placing of this chapter immediately after the preamble in order to give it greater sanctity, than others.
• Part IV of the Constitution
• Gist; Aims and objectives to be taken up by the State in the governance of the country.
• articles 36 to 51 deal with the provisions of the Directive Principles which are contained in Part IV of the Constitution.
• This novel feature of the Constitution has been adopted from the constitution of the Ireland.
• The Directive Principles resemble the Instrument of Institutions' enumerated in the Government of India Act of 1935.
• This concept is the latest development in the Constitutional governments throughout the world, with the growing acceptance of a Welfare State:
• A Welfare State' strives to bring about social and economic justice. I his is foundation stone of democracy.
• Article 36. defines the term 'state' as having the same meaning as in Article 12 of Part III of Constitution.
• Therefore state in Part IV, Article 36 includes the legislative and executive organs of Central and State governments and also all local and other public authorities in the country.
• Article 37 says that though Directive Principles are non-justice able but they are fundamental to the governance of the county.
• It is the duty of Central and State governments to apply these principles in making laws.
Objectives of Directive Principles
• They constitute a very comprehensive programme of social and economic order for a welfare state.
• According to Ambedkar, Constituent Assembly had two fold functions
1. To lay down the form of political Democracy
2. To lay down that our ideal is economic democracy and also to prescribe that every government what so ever is in power shall strive to bring about economic democracy.
• Directive Principles have set standards of achievements before the Legislature and the Executive, the local and other authorities. Thus their success and failure can be judged by using DPSP.
• DPSP lacks legal sanctions. But it enjoys political sanctions. Those failing to implement directive principles might receive a rude awakening at the polls.
• The constitutional validity of some of the laws can be judged with the help of Directive Principles.
PART IV
Directive Principles of State Policy
36 Definition.
37 Application of the principles contained in this Part.
38 State to secure a social order for the promotion of welfare of the people.
39 Certain principles of policy to be followed by the State. 39A Equal justice and free legal aid.
40 Organisation of village panchayats.
41 Right to work, to education and to public assistance in certain cases.
42 Provision for just and humane conditions of work and maternity relief.
43 Living wage, etc., for workers.
43A Participation of workers in management of industries.
44 Uniform civil code for the citizens.
45 Provision for free and compulsory education for children.
46 Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
47 Duty of the State to raise the level of nutrition and the standard of living and to improve public health.
48 Organisation of agriculture and animal husbandry.
48A Protection and improvement of environment and safeguarding of forests and wild life.
49 Protection of monuments and places and objects of national importance.
50 Separation of judiciary from executive.
51 Promotion of international peace and security.
Classification of Directives
• It is a unique blend of Socialism, Gandhism, Western Liberalism and ideals of Indian Freedom Struggle.
SOCIALISTIC PRINCIPLES
Art- 38: State to secure a social order for the promotion of welfare of the people. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
· Article 38 is the key stone or the core of the Directive principles.
Art-39: Certain principles of policy to be followed by the State. The State shall, in particular, direct its policy towards securing-
a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
d) that there is equal pay for equal work for both men and women;
e) that the health and strength of workers, men and women, and thetender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Art. 41: Right to work, to education and to public assistance in certain cases. The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work,
to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
Art. 42: Provision for just and humane conditions of work and maternity relief. The State shall make provision for securing just and humane conditions of work and for maternity relief.
Art. 43: Living wage, etc., for workers. The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.
Art. 43A: Participation of workers in management of industries. The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry.
Art. 43B: 97th Amendment to the Indian Constitution inserts a new directive principle into Part-IV of the constitution, Article 43B, which reads: "The state shall endeavour to promote voluntary formation, autonomous functioning, democratic control and profession management of cooperative societies." The amendment came into force in January, 2012.
Art. 45:Provision for early childhood care and education to children below the age of six years. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."
GANDHIAN PRINCIPLES
Art. 40: Organisation of village panchayats. The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
Art. 46: Promotion of educational and economic interests of Scheduled Castes. Scheduled Tribes and other weaker sections. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
Art. 47: Duty of the State to raise the level of nutrition and the standard ot living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
· In India Gujarat, Manipur, Mizoram, Nagaland and Lakshadweep prohibited manufacture, sale and consumption of alcohol. In Gujarat the law is in force since May 1, 1960. Gujarat is the only state in India that has the death penalty for those who found guilty of making and selling spurious (fake) liquor which causes death. This was done by amending the Bombay Prohibition (Gujarat Amendment) Bill 2009.
· The Bombay Prohibition Act 1949 is still in operation in both Maharashtra and Gujarat.
· The Bangaram Island is the only place in Lakshadweep where the consumption is permitted.
· Impact of Prohibition in Haryana: After the 1996 assembly elections the HVP (Haryana Vikas Party) imposed ban on liquor by the CM Bansilal and it had a very bad impact in the 1998 Lok Sabha elections where it won only 1 Lok Sabha seat from the state (Out of 10). In the year 1998 the government lifted the ban.
Art. 48: Organisation of agriculture and animal husbandry. The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
WESTERN LIBERALISM
Art. 39A: Equal justice and free legal aid. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Art. 44: Uniform Civil code for the citizens. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
Art. 50: Separation of judiciary from executive. The State shall take steps to separate judiciary from the executive in the public services of the State.
Directive Principles Subsequently Added
42nd Amendment Act - 1976
• Equal opportunity for justice and free legal aid. (Art 39A)
• To protect the environment, forests and wild life. (Art 48A)
• Right of workers to participate in management of industries. (Art 43A)
• To protect children against exploitation and to provide opportunities for their healthy development in conditions of freedom and dignity.
44th Amendment Act - 1978
• State shall minimize inequality in income, status, facilities and opportunities among individuals and groups (Art. 38(2)).
97" Amendment Act - 2012
• The amendment also inserts a new directive principle into Part IV of the constitution, Article 43B, which reads: "The State shall endeavor to promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies".
IDEALS OF FREEDOM STRUGGLE
Art. 48A: Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.
Art. 49: Protection of monuments and places and objects of national importance. It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.
Art. 51: Promotion of international peace and security. The State shall Endeavour to-
a) promote international peace and security;
b) maintain just and honorable relations between nations;
c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and
d) encourage settlement of international disputes by arbitration.
DIRECTIVES IN OTHER PARTS (NOT IN PART-IV) OF THE CONSTITUTION
Art. 350A- It shall be the endeavor of every State and of every local Authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities.
Art. 351- It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages.
Art. 335- claims of Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with affairs of Union or of a State.
These Directives are also non-justiciable. Maximum progress in implementing in directive has taken place in relation to Art. 39(b).
Doctrine of Harmonization
· The Supreme Court in various cases has evolved a 'Doctrine or Theory of Harmonization'.
· It has further stated that both the Fundamental Rights and the Directive Principles are in fact supplementary to each other and together constitute an integrated scheme.
· It has also held that where this is not possible, the Fundamental Rights shall prevail over the Directive Principles.
· The present position is that only Article 39(b) and Article 39(c) can be given precedence over Article 14, 19 and not all the Directive Principles.
SCOPE OF DIRECTIVE PRINCIPLES
· The Supreme Court in its various judgements held that DPSP are to supplement fundamental rights in achieving a welfare state. Parliament can even amend fundamental rights for implementing the Directives, so long as the amendment does not affect the basic features.
· Art. 38 clearly directs the state to secure and protect a social order which stands for the welfare of the people.
· Art. 37 says that Directive Principles are not justiciable but are fundamental to the governance of the country, and the State has the duty to apply these principles in making laws. However, if they are not acted upon by the State, no one can move the courts. The reasons for making the DPSPs explicitly non-justiciable are that they require resources which the State may not have; for example, the Right to work.
· The DPSPs also require a certain level of economic development as a prerequisite for their enforcement, for example, poverty in India makes children take to labour. As a consequence, making primary education universal as well as compulsory is bound to be unsuccessful in practice. Similarly, the uniform civil code cannot be enforced in the country where there is rampant religious superstition, illiteracy and mutual fear among religious communities. The code can only be brought about in the form of a law when suitable conditions are built up and all the concerned communities request for it. Therefore, these directive principles have to be implemented as and when the socio-economic conditions in the country improve.
IMPLEMENTATION OF DIRECTIVE PRINCIPLES
Since the commencement of the Constitution, there have been land reforms. It was followed by the 4th, 5"', 17th, 25'", 42nd and 44th Amendment Acts. Then, the 73rd (Constitution Amendment) Act, 1992 is in pursuit of implementing Art 40.
However, following are the areas where substantial success has been achieved:
1. Article 39 embodies provisions specifically to promote the concept of welfare state. In pursuance of these goals the State has enacted legislations on land reforms, land ceiling, laws providing for minimum wage and equal pay for equal work for both men and women, etc.
2. The 73rd Constitution (Amendment) Act, 1992 is in pursuit of implementing Article 40. Even before this, village panchayats were organized on the recommendation of Balwant Rai Mehta Committee in1959.
3. There have been many factory legislations to make the conditions of work humane for workers (Art. 42).
4. Promotion of cottage industries has been one of the main aspects of the economic policy of the government and there exists the Khadi and Village Industries Commission for the purpose. Apart from this, Silk Board, Handloom Board, SSI Board, NABARD. etc. have been created.
5. The policy of preferential treatment in education, administration and economy for the weaker sections including women, SCs, STs and OBCs has been a consistent plank of the government welfare policy, the most recent being the implementation of the Mandal Commission Report, for which judicial clearance was given by the Supreme Court in 1992. (Art. 46)
6. Many schemes like the Integrated Child Development Services, Mid-day Meal Scheme and the policy of prohibition followed by some States number of legislations to implement the DPSPs. In fact, the very first Amendment Act was for implementing DPSP.
Failures on the part of the State in translating the following DPSPs into practice:
In 1990, the bill to make the right to work (Article 41) a Fundamental Right was introduced but the government of the day did not survive and the Bill fell through.
1. The government's position as regards the Uniform Civil Code (UCC) [Article 44] is that the matter being sensitive in the country, unless the religious groups concerned come forward and voluntarily seek the enforcement of the UCC, it is not desirable to implement the code. The Supreme Court, in
1995, held that the UCC must be implemented, and 'directed’ the Union Government to report to it on the progress made in the implementation of the UCC.
2. One of the most glaring failures of the government is in providing free and compulsory primary education to all children below the age of fourteen years. Acharya Ramamurthy Committee on the New Education Policy (1990-91) criticized the government for the same and recommended that the Right to Education be made a Fundamental Right. The Supreme Court in the Mohini Jain case (1993), concerning capitation fees, ordered that the Right to Primary Education be made a Fundamental Right. However, the government sees it as a problem of administrative and financial feasibility.
Fundamental Rights and Directive Principles: Comparison and Contrast
Both Part III (Fundamental Rights) and Part IV (DPSP) are important features of Indian Constitution. However, they differ from each other in following respects
Fundamental Rights
a) are justiciable.
b) are guaranteed by the Constitution.
c) seek to protect the individual from State encroachment.
d) constitute limitations upon state action; i.e. prescribes the 'don'ts' for the State.
e) subject to certain reasonable restrictions imposed by the Parliament.
DPSP
a) are not enforceable by the courts (unless the State has translated them into Acts).
b) legislation is required before any Directive is implemented.
c) aim at the promotion of the general welfare of the society.
d) are positive instructions to the State to take steps to establish a just, social, economic and political order, i.e. prescribes the 'dos' for the State.
e) not subject to any such limitations; can be enforced by the State according to resources available.
RELATIVE IMPORTANCE OF FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY
• During the first sixteen years of the operation of the Constitution, the Directive Principles were considered subordinate to the Fundamental Rights: the courts struck down a number of laws enacted to implement Directive Principles on the ground that they violated the Fundamental Rights. The conflict has its root in the fact that the fundamental rights are enforceable by the courts whilethe Directive Principles are not. However, the Government tried to overcome the problem by amending the Constitution.
• When the Supreme Court laid down in the Golaknath case (1967) that the Fundamental Rights cannot be abridged to implement the Directives, the Government tried to overcome the limitations in 1971 through the 24th Amendment which gave Parliament the right to amend Fundamental Rights. In the same year, the 25th Amendment inserted Article 31C ensuring that certain laws meant to implement Directives in clauses 39(b) and 39(c) will prevail even if these laws violate the rights granted in Article 14 and 19.
• An attempt to enhance the scope of Article 31C was made by 42nd Amendment (1976) which gave primacy to any or all the Directive Principles and deprived the courts of the right to look into such cases. However, this attempt was foiled by the Supreme Court majority judgment in the Minerva Mills case (1980) which asserted that such total exclusion of judicial review would offend the basic structure of the Constitution. Therefore, the widening of Article 31C is restored to its pre-1976 position in that a law would be protected by this Article only if it has been made to implement any directive in Article 39(b)-(c) and not any of the other Directive Principles in Part IV.
• In all other matters no Fundamental Right can be violated by a law purporting to implement a directive principle.
• As far as the question of primacy over the other is concerned, the Supreme Court consistently held that on the whole there is no inherent conflict between the Fundamental Rights and the Directive Principles of State Policy. They are supplementary and complementary to each other. They together constitute an integrated scheme, and therefore, as far as possible they should be interpreted harmoniously. However, if this is not possible, the Fundamental Rights will prevail over the Directive Principles. Hence, Fundamental Rights have the last laugh!
FUNDAMENTAL RIGHTS AND THE DIRECTIVE PRINCIPLES
It should be remembered that the preamble, the fundamental Rights and the Directive Principles are all integral parts of the same constitutional edifice. They are all equally important and have to be read with each other.
The emphasis in the entire scheme of the Constitution under the headings of the Preamble, the Fundamental Rights and the Directive Principles is on building an egalitarian society and on the concept of socio-economic justice. In as much as the Directive Principles, though declared to be fundamental as guiding principles for making and administering laws, were not made enforceable in courts of law. They represented a subtle compromise between what the framers, as the leaders of the freedom struggle, looked upon as the ideal or the goal and what as realists, they found to be immediately feasible. The Fundamental Rights and the Directive Principles together constituted the soul of the Constitution.
It is now clearly understood that there is no essential dichotomy between Rights and Duties or between the Fundamental Rights and the Directive Principles. They complement and supplement each other (Kesavananda Bharti V. State of Kerala, 1973). If the Fundamental Rights represent the don’ts for the Government and the legislature, the Directive Principles represent the do’s.
While speaking on the constitution Fourth Amendment in the Lok Sabha, Nehru declared that the responsibility for the economic and social welfare policies of the nation should lie with parliament and not with the courts. In so far as the decision of courts ad shown that there was some inherent contradiction between the Fundamental Rights and the Directive Principles, it was for parliament to remove the contradiction and “make Fundamental Rights subserve the Directive Principles of State Policy”.
Later, in Keshavanand Bharti’s case (1973) Justice Mathew made the following significant observation:
The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgment, curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution makers might become necessary: their claim to supremacy of\r priority is liable by the moral claims embodied in Part IV. Whether at a particular moment in the history of the nation, a articular fundamental right should have priority over the moral claim embodied in Pat IV or must yield to them is a matter which must be left to be decided by each generation in the light of its experience and its values. And, if parliament in its capacity as the Amending Body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value to be moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the constitution-makers has been made dominant. Judicial review of a constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible.
Differences between Directive Principles and Fundamental Rights:
Directive Principles
Fundamental Rights
1. Directive Principles are positive in nature since they extend the activities of
1. Fundamental Rights are negative in nature since they impose restrictions on the
government.
2. These Principles aim at establishing welfare state in India.
3. They are non-judicial and non-coercive in nature. The courts cannot enforce these principles in case the government fails to implement them.
4. Governments have to implement theses principles subject to the availability of financial resources.
5. They are given to the governments.
6. They are drawn from the constitution of Ireland.
7. They are similar to the instrument of instructions.
8. They aim at the establishment of economic and social democracy in India.
9. They require legislation by Union by Union Parliament for their implementation
10. In case of a conflict between the Directive Principles and Fundamental Rights, the former precede over the latter.
governments in their relations to the people.
2. These rights aim at promoting the individuality of the citizens,
3. They are judicial and coercive in nature. The courts can hear cases of violation of these rights by others. They can impose pubishments if necessary for curbing the acts of offenders.
4. Fundamental Rights have to be respected by the governments without any reservtions. They must not interfere in the rights of citizens.
5. They are presented to Indian citizens.
6. They are drawn from the constitution of America.
7. NO such similarity exists in the case of these rights.
8. They aim at the provision of political democracy and individual freedoms.
9. No such legislation is required for enforcing these rights.
10. Wehnever a conflict occurs between Directive Principles and Fundamental Rights, the latter
remain less important over the former.
UNIFORM CIVIL CODE
The issue of the Uniform Civil Code has emerged into India’s political discourse recently mainly because many Muslim women, affected adversely by the personal laws, have begun knocking on the doors of the Supreme Court to uphold their fundamental rights to equality and liberty in keeping with constitutional provisions. The Union law ministry has recently asked the law commission to examine the matters in relation to the implementation of the uniform civil code.
What is Uniform Civil Code?
The Uniform Civil Code (UCC) in India proposes to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen.
Is there a provision in Indian constitution for Uniform Civil Code (UCC)?
The constitution has a provision for Uniform Civil Code in Article 44 as a Directive Principle of State Policy which states that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
· Articles 25 and 26 guarantee right to freedom of religion and UCC is not opposed to secularism or will not violate these articles.
· Article 25 confers right to practice and profess religion, while Article 44 divests religion from social relations and personal law.
Pros and Cons of Uniform Civil Code
Pros
Cons
1. To Provide equal status to all citizens: In the modern era, a secular democratic republic should have a common civil and personal laws for its citizens irrespective of their religion, class, caste, gender etc.
2. To Promote gender parity: It is commonly observed that personal laws of almost all religions are discriminatory towards women. Men are usually granted upper preferential status in matters of succession and inheritance. Uniform civil code will bring both men and women at par.
3. To accommodate the aspirations of the young population: A contemporary India is a totally new society with 55% of its population is below 25 years of age. Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity. Their view of shedding identity on the basis of any religion has to be given a serious consideration so as to utilize their full potential towards nation building.
4. To Support the national integration: All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are same for all. With the implementation of Uniform Civil Code, all citizen will share the same set of personal laws.
There will be no scope of politicization of
1. Practical difficulties due to diversity in India: It is practically tough to come up with a common and uniform set of rules for personal issues like marriage due to tremendous cultural diversity India across the religions, sects, castes, states etc.
2. Perception of UCC as encroachment on religious freedom: Many communities, particularly minority communities perceive Uniform Civil Code as an encroachment on their rights to religious freedom. They fear that a common code will neglect their traditions and impose rules which will be mainly dictated and influenced by the majority religious communities.
3. Interference of state in personal matters: The constitution provides for the right to freedom of religion of one’s choice. With codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.
4. Sensitive and tough task: Such a code, in its true spirit, must be brought about by borrowing freely from different personal laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality, and adopting expansive interpretations on marriage, maintenance, adoption, and succession by acknowledging the benefits that one
community secures from the others. This
issues of the discrimination or concessions or special privileges enjoyed by a particular community on the basis of their particular religious personal laws.
5. To bypass the contentious issue of reform of existing personal laws: Existing personal laws are mainly based on the upper-class patriarchal notions of the society in all religions. The demand of UCC is normally made by aggrieved women as a substitute for existing personal laws as patriarchal orthodox people still deem the reforms in personal laws will destroy their sanctity and oppose it profusely.
task will be very demanding time and human resource wise. The government should be sensitive and unbiased at each step while dealing with the majority and minority communities. Otherwise, it might turn out to be more disastrous in a form of communal violence.
5. Time is not yet suitable for this reform: Considering a major opposition from Muslim community in India over this issue overlapping with controversies over beef, saffronization of school and college curriculum, love jihad, and the silence emanating from the top leadership on these controversies, there needs to be given sufficient time for instilling confidence in the community. Otherwise, these efforts towards common will be counterproductive leaving minority class particularly Muslims more insecure and vulnerable to get attracted towards
fundamentalist and extremist ideologies.
Conclusion
· At the end of the day, a UCC can only emerge through an evolutionary process, which preserves India’s rich legal heritage, of which all the personal laws are equal constituents.
· The codification and implementation of UCC may not necessarily usher in the expected equality among genders and religions.
· Major sensitization efforts are needed to reform current personal law reforms which should first be initiated by the communities themselves.
· Current institutions need to be modernized, democratized and strengthened for this change. Sincere efforts towards women empowerment have to be taken for all women of all religions.
· The plural democracy is an identity of the modern India. Therefore, efforts should be focused on harmony in plurality than blanket uniformity for flourishing Indian democracy.
· According to Justice R.M. Sahai " Freedom of religion is the core of our culture. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. "
Supreme Court verdicts related to DPSP
Shah Bano case
• In Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case, a penurious Muslim woman claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him.
• The Supreme Court held that the Muslim woman have a right to get maintenance from her husband under Section 125.
• After this decision, nationwide discussions, meetings, and agitation were held.
• The then Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure.
Sarla Mudgal case
• The second instance in which the Supreme Court again directed the government of Article 44 was in the case of Sarla Mudgal v. Union of India.
• In this case, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam, can solemnise second marriage.
• The Court held that a Hindu marriage solemnised under the Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955.
• Conversion to Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And, thus, a second marriage solemnised after converting to Islam would be an offence under Section 494 of the Indian Penal Code.
John Vallamattom case
• The priest from Kerala, John Vallamattom filed a writ petition in the year 1997 stating that Section 118 of the Indian Succession Act was discriminatory against the Christians as it impose unreasonable restrictions on their donation of property for religious or charitable purpose by will.
• The Supreme Court struck down this Section in 2003 declaring it to be unconstitutional.
Thus, the apex court has on all these instances directed the government to realise the directive principle enshrined in our Constitution and asked to implement UCC as early as possible.
Tripple Talaq
Triple Talaq, also known as talaq-e-biddat, a form of Islamic divorce which is instant and irrevocable divorce, which has been used by Muslims in India. It allows any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for "divorce") three times in oral, written, or more recently, electronic form. The use and status of triple talaq in India has been a subject of controversy and debate. Those questioning the practice have raised issues of justice, gender equality, human rights and secularism. The debate has involved the Government of India and the Supreme Court of India, and is connected to the debate about a uniform civil code (Article 44) in India. On 22 August 2017, the Indian Supreme Court deemed instant triple talaq (talaq-e-biddah) unconstitutional. Three of the five judges in the panel concurred that the practice of triple talaq is unconstitutional. The remaining two declared the practice to be constitutional while simultaneously asking the government to ban the practice by enacting a law.
The Government formulated a bill called The Muslim Women (Protection of Rights on Marriage) Bill, 2017 and introduced it in the Parliament which was passed on 28 December 2017 by the Lok Sabha. The bill is pending in Rajya Sabha.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019.
· The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on June 21, 2019. It replaces an Ordinance promulgated on February 21, 2019.
· The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
· Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
· The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
· The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the Magistrate.
· Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
· Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.
CHAPTER-9
Fundamental Duties
Fundamental Duties were incorporated in our constitution by the Constitution (Forty-second Amendment) Act of 1976. In the beginning the makers of our constitution did not show keen interest for adding fundamental duties in the constitution. Mahatma Gandhi strongly, laid emphasis on the duties of India citizens before they enjoy of fundamental rights. The Karachi Congress session formulated a list of duties and fundamental rights in 1931. The Swaran Singh Committee set up by the congress party in 1976 recommended the inclusion of ten fundamental duties in the constitution. The congress government in the centre accepted these recommendations and enacted the Constitution (Forty-Second Amendment) Act in 1976
Why Fundamental Duties are needed?
Rights and duties are correlative. These are to serve a constant reminder to every citizen that, while constitution specifically conferred on them certain FRs, it also requires, citizens to observe certain basic norms of democratic conduct and democratic behaviour.
• It was argued that in India, people lay emphasis only on rights and not on duties. Is it true?
Fundamental Duties in various countries
• None of the major democracies in the world has Fundamental Duties. Only Japan has some reference. France has a passing Reference.
• It does not mean that people of these countries behave in an irresponsible manner. In all these countries citizens have high sense of patriotism as a result of education and training in the elementary duties and obligations of citizenship.
• But in socialist countries, There are specific Fundamental Duties.
FEATURES OF FUNDAMENTAL DUTIES
Rights and duties go hand in hand. One's right becomes another's duty and vice-versa. Out of the two which takes precedence is always a point of debate. The rights and duties which are indispensable for a man being part and parcel of society have been enshrined in the Constitution as the Fundamental Rights and Duties. The Constitution covers a broad spectrum of domains to protect the rights of the common man by introducing six rights as Fundamental Rights.
These are Right to Equality, Right to Freedom, Right to Freedom of Religion, Cultural and Educational Rights, Right against Exploitation, and Right to Constitutional Remedies. Similarly, the Fundamental Duties are also emphasised upon by the Constitution.
After Independence, the emphasis was primarily on duties. 'Country first, self afterwards', 'What can you do for the country and not what the country can do for you?', and 'Service before self are the adages that emanate from the principle of duties. The principle of duties insulated the minds of Indian polity for more than six decades and kept the citizens of India tolerant and non-vocal towards the deficiencies and failures of the government to provide basic amenities of life to the common man.
During the past three to four years, many rights have got legal sanction by way of amendment in the Constitution and separate enactment by Parliament, namely Right to Food, Right to Education, and Right to Employment. There is another right which is in the form of 'Street Hawkers Bill' pending in Parliament.
Implementing rights
Now the question arises as to who is duty-bound to implement these rights. Clearly, it is the government that is duty-bound to implement these, or it is the government against whom these rights are to be endorsed. Thus all these rights will bind the government constitutionally to do its duty to which it is otherwise morally/ politically duty-bound. In other words, it is also admission of the failure on the part of the government in performing the duties of a welfare state.
The UPA government has enacted these rights without financial closure. Education is in the concurrent list, where both the Centre and state can enact laws. The effect of the Right to Education Act passed by the Centre will be felt by the state exchequer as most of the states are financially starved and the Centre has not made any extra financial provisions in the Central budget to set off the additional fiscal burden to be borne by state governments for infrastructure and establishments. Similarly, to implement the Right to Food, the Centre will have to depend on the Public Distribution System (PDS), which is full of deficiencies.
Had the Centre plugged the pilfering points in the PDS and developed a mechanism of utilisation of buffer stock of food grain within its shelf-life span, there would have been no need to make the law of Right to Food. The Street Hawkers Bill will give the right to street hawkers to be implemented against the municipal bodies.
Fundamental duties in Different eras
The Ramayana and Mahabharata depict different pictures of Indian society at different periods of time. The Ramayana depicts the duty-hound society where everyone, from the king to the general public, prefers duties to rights and had a peaceful living even at odd times. In the other hand, Mahabharata delineates the rights-based society where everyone, from the king to the general public, prefers rights to duties and everybody demands their respective rights. Consequently, everybody went restless which culminated in a great war.
This is the context on which the debate of right based government against welfare based government comes up.
Any debate on the Constitution naturally focuses on the historic significance of the primacy of the fundamental rights of citizens. These rights placed India at the forefront of nations that cherish human rights, The historic significance of these rights lies in the fact that a people who suffered colonial oppression and the loss of basic rights for a long time reasserted themselves with a rare zeal in a constitution they gave 1 into themselves. It's equally important that these fundamental rights were not limited to the celebrated freedoms under Article 19(1)and the right to life and liberty, but were extended to the freedom of religion also. The Constitution guarantees that these rights will be protected horn any encroachment.
However, it must be said that while fundamental rights are crucial to the survival of a vibrant democracy, there's an equally important aspect to an organised society that we often ignore. For a polity to survive, citizens should have a high sense of duty. The Constitution-makers didn't think it necessary to list out the duties of citizens because they couldn't have perceived a society that ignores such duties.
Through the 42nd Amendment, it was Indira Gandhi's government that added the fundamental duties of citizens, like filling a crucial gap.
A close look will reveal these duties are fundamental to the survival of this nation as an organised polity. Some of the core duties need to ho mentioned to illustrate the point: It shall be the duty of every citizen lo cherish and follow the noble ideals which inspired our struggle for freedom; to promote harmony and common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectoral diversities; to renounce practices derogatory to the dignity of women; to value and
preserve the rich heritage of our composite culture; to develop a scientific temper, humanism and the spirit of inquiry and reform; to protect and improve the natural environment, etc.
But, even three decades after the fundamental duties were incorporated, there's no adequate awareness among citizens. In 1998, Atal Bihari Vajpayee's government had appointed the Justice J.S. Verma Committee "to operationalise the suggestions to teach fundamental duties to the citizens of the country". This committee submitted its report containing a number of recommendations for the government to act on. There are schemes being implemented by the ministry of home affairs, HRD ministry, the environment ministry, etc, to promote the teaching of fundamental duties. There's also a big involvement of voluntary agencies. But the impact of governmental as well as non-governmental involvement in this process is not being felt much.
The fundamental duties are not trite formulations to be read and ignored. For example, one duty is to promote harmony and the spirit of common brotherhood, transcending the barriers of religion, language, etc. But our democratic experiment over six decades has not fully equipped us to forge this common brotherhood. Today, our minds and hearts remain divided. Similarly, we have a duty to protect and improve the environment. But we pollute water and the air and complain about climate change.
We are living in a period in which Indian society is being subjected to unhealthy and dangerous pulls and pressures. The school environment and the social milieu are such that children learn all the wrong things about each other and become victims of social prejudices. The Justice Verma Committee had suggested changes in school and teacher education curricula to incorporate the teaching of fundamental duties, in a serious way, to children. If children learn these in the classroom, they will grow up with a sense of duty imprinted on their minds. But children haven't been able to develop a sense of oneness, a scientific temper and the spirit of inquiry, nor a healthy, secular attitude. Religious and social prejudices would have no place if children developed a spirit of inquiry and began to understand the world with the help of science.
India has a composite culture. Every citizen has a duty to preserve it. Every race that inhabited this land has contributed to the development of this culture. The great rishis evolved a global perspective on man —"Vasudhaiva kutumbakam" sums up that perspective. They believed that ultimately, there is one truth, but wise men say it differently (ekam sat vipra bahudha vadanti). This non-sectarian, secular and universalist perspective of the ancient rishis should form the core of citizens' duties.
While we debate the Constitution, we should lay sufficient emphasis on the fundamental duties of citizens. A couple of suggestions are in order. The prime minister has rightly said our children should be taught the Constitution. Yes, and more than any other thing, they should be taught the citizen's duties. We should consider incorporating the essential aspects of citizens' duties in all oaths and pledges. The Supreme Court, too, has said that since duties are obligatory for citizens, the state should strive to achieve the same goal. Rights and duties have to exist together. Rights without duties will lead to anarchy.
CHAPTER- 10
The President of India
India has adopted a parliamentary system of Government. Under this system, the Executive is responsible to the Legislature. Prior to Independence, under the British rule, the British model of Parliamentary form was introduced in India, and after independence it was thought by the framers of the constitution that the same system of government should continue. Hence, today, we have parliamentary system of government with an indirectly elected President as the Constitutional Head of the State.
Art- 52: The President of India- There shall be a President of India.
Art- 53: Executive power of the Union
1. The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
2. Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.
POSITION OF THE PRESIDENT
Since India has a parliamentary form of Government, Art. 53 should, always be read along with
Art 74
Art 53. Executive Powers in the union shall be vested in the president.
Art 74. There shall be a council of ministers who shall aid & advice President.
Art 74 and its current Position
Art. 74. Council of Ministers to aid and advise President.
1 There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
2. The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
• Prior to constitutional Amendment Act 42 Art 74 says There shall be a council of Ministers to aid and advice President.
• 42nd Amendment Act: Made it compulsory that President 'shall act in accordance with such advice'. So it is constitutionally binding for President 44th Amendment Act.
• Is President merely a figure Head?
No
EXTRAORDINARY CIRCUMSTANCES IN WHICH PRESIDENT USES HIS DISCRETION
1. Art 74- President can send back the advice of Council of Minister (COM) for reconsideration but for once.
2. Appointment of Prime Minister.
3. Art 78(a): says that Prime Minister shall communicate to President all decision of COMs relating to the administration of Union and proposals for legislation.
4. President can send back a bill once for reconsideration
5. President can ensure collective Responsibility of the Council of Ministers.
6. Not more than six months should elapse between two successive sittings of the parliament
7. Dissolution of House of the people.
8. Pocket Veto: President neither assents the bill nor he rejects it. He allows it to lie on the table without signing it. Neither he assigns any reason for it.
President of India is functional in extra ordinary circumstances. President is like an emergency light. Whenever there is a political vacuum, the president swings into action.
Relationship between President and Council of Ministers
Under Art. 53 (1), the executive powers of the Union are vested in the President but Art. 74 says that the President acts on the aid and advice of the Council of Ministers headed by the Prime Minister. The President can only ask for reconsideration of his advice once after which he shall act in accordance with the advice tendered after such reconsideration. However, there are circumstances when the President need not act on the advice of the Council of Ministers like -
• a defeated Council of Ministers advises the President to dissolve the Lok Sabha. Unless the President sees no scope of a stable alternative political formation, the advice need not be followed.
• when a caretaker government advises the President to pass an ordinance which are politically motivated (1996).
• a caretaker government wants President's rule imposed (UP, 1997).
Thus, in normal circumstances as well in certain exigencies, the ceremonial' President is required to act as a 'working1 President.
ELECTION OF PRESIDENT
The provisions dealing with the election of the President are provided in Articles 54 and 55 and the President and Vice-President (Elections) Act of 1952, amended in 1974. The President is elected by an Electoral College, which consists of the elected members of the State Legislatures (MLAs) and those of the Parliament (MPs) through proportional representation by means of a single transferable vote. The value of vote of an MLA and MP is such that a true federal character of the office of the President is maintained, by striking a balance between the States and Centre.
Value of the vote of an MLA
= Population of the state
(Total elected members of the state legislature)
1
1000
This means that value of the vote of an MLA differs from one state to another. This is done to give equality of representation in terms of the population.
Value of the vote of an MP
=(Value of votes of total MLAs of 25 states and two UTs)
(Total elected members of the Parliament)
To be declared elected to the office of the President, more than 50 % of the valid votes are required by a Presidential candidate.
In case of any dispute regarding the election of the President, only the Supreme Court is authorised to intervene in the matter.
Election of the President is an indirect one. Two basic reasons given for the indirect elections are—
1. Since Parliamentary form of the Government is in practice, the real power lies with the Council of Ministers. So, it would be anomalous to elect the President directly by the people and give him no real powers.
2. Direct election would mean tremendous loss of time, money and human resources.
Qualification for election to the office of the President
a. he must be a citizen of India.
b. he must have completed 35 years of age.
c. he must be qualified to be a member of the Lok Sabha.
d. he must not hold any office of profit under the Government of India or the Government of any State or under any local or other authority.
However, following persons are not deemed to be holding any office of profit and hence they cannot be disqualified for election as the President-
a. a sitting President or Vice-President of India.
b. Governor of any state.
c. a minister of the Union or of any State.
Disputes Relating to the Election of President
■ Only Supreme Court has the jurisdiction
■ Dispute can be brought in front of Supreme Court only after the election.
■ On account of vacancies in electoral college no petition can be filed.
■ If the election of President is declared void, acts of president till the declaration cannot be invalidated.
CRITICISM OF THE METHOD OF PRESIDENTIAL ELECTION IN INDIA
a) Article 62 of the Constitution provides that an election to fill in vacancy shall be held as soon as possible after, and in no case later than six months from, the date of occurrence of the vacancy (if such occurrence of vacancy is caused by resignation or death or impeachment or otherwise). It also says that the vacancy caused by the expiration of the term of office must be completed before the date of expiration of the term. The fact that a few legislative assemblies are dissolved cannot be a cause for deference of the Presidential Election. In this context, it is feared that a President seeking re-election or a Prime Minister seeking the election of u particular candidate may dissolve a few legislative assemblies under Article 356 before the presidential election takes place.
b) If some voters do not exercise preferences, the election may fail.
c) Proportional representation by means of single transferable vote; will succeed only when there is some prior understanding among political parties. Multiplicity of contestants may lead to complexity and confusion.
REASONS FOR THE ADOPTION OF AN INDIRECT ELECTION FOR THE PRESIDENTIAL POST
There are two basic reasons cited for the indirect elections:
i. Since Parliamentary form of the Government is in practice, the real power lies with the Council of Ministers. So it would be anomalous to elect the President directly by the people and give him no powers.
ii. Direct election would mean tremendous loss of time, money and human resources.
Art- 56: Term of office of President
1. The President shall hold office for a term of five years from the date on which he enters upon his office:
a) The President may, by writing under his hand addressed to the Vice-President, resign his office;
b) The President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in Article 61;
c) The President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
2. Any resignation addressed to the Vice-President under clause (a) of the provision to clause (1) shall forthwith be communicated by him to the Speaker of the House of the People.
Art-57: Eligibility for re-election
Our Constitution does not place any bar on the re-selection of the same person to the office of the President. He may be elected for any number of terms. The irish Constitution prohibits re-election for more than two terms. The Constitution of the United States of America, as originally enacted, said nothing about reelection of the terms of the President. Now the U.S. Constitution implicitly bars the election of the same person more than twice to the office of the President. In India, after the first president of India, Dr. Rajendra Prasad, who was elected twice, all other presidents have been elected only for one term.
• A person who holds, or who has held, office as President shall, subject to the other provisions of this Constitution, be eligible or re-election to that office.
Art- 58: Qualifications for election as President
1. No person shall be eligible for election as President unless he-
i) is a citizen of India,
Ii) has completed the age of thirty-five years, and
iii) is qualified for election as a member of the House of the People.
2. A person shall not be eligible for election as President if he holds any office of profit under the government of India or the Government dl any State or under any local or other authority subject to the control of any of the said Governments.
Manner of Election of President (Constitutional Provisions)
Art: 55: Manner of election of President
1. As (far as practical, there shall be uniformity in the scale of presentation of the different States at the election of the President.
2. For the purpose of securing such uniformity among the State inter se as well as parity between the States as a whole and the Union, the number of votes which each elected member of Parliament and of the
Legislative Assembly of each State is entitled to cast at such election shall be determined in the following manner-
(a) every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the State by the total number of the elected members of the Assembly;
(b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote of each member referred to in sub clause (a) shall be further increased by one;
(c) each elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States under sub clause (a) and (b) by the total number of the elected members of both Houses of Parliament, fractions exceeding one half being counted as one and other fractions being disregarded
3. The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such an election shall be by secret ballot.
· The nominated members and all the members of Legislative Councils (In case of Bicameral Legislatures) are not permitted to vote in the election of the President of India).
· In this article, the expression "population" means the population ascertained at the last preceding census of which the relevant figures have been published.
Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census.)
CONDITIONS OF PRESIDENTS OFFICE
Art- 59: Conditions of President's office
1. The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
2. The President shall not hold any other office of profit.
3. The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
4. The emoluments and allowances of the President shall not be diminished during his term of office.
Oath by the President
• The oath is administered by the Chief Justice of India or in his absence any other person appointed by CJI for the purpose.
• To preserve, protect and defend, the constitution & Law and to devote himself to the service & well being of the people of India.
• Grounds of Impeachment:
IMPEACHMENT OF PRESIDENT
President can be impeached for violation of constitution. There can be no other reason. But what amounts to violation of constitution, it is a political decision
• Procedure for Impeachment:
1. A resolution seeking removal of President can be introduced in either house of Parliament
2. The resolution seeking removal can be introduced only after a fourteen day notice.
3. The proposal should be supported by atleast 1/4th of the total strength of the house.
4. Such resolution has to be passed with 2/3rd strength of the house
5. Resolution mores to the next house. This house acts as an investigation house.
6. President has the right to appear and to be represented at such investigation.
7. If the investigation house also passes the resolution with 2/3rd majority of the strength of the house, the president stands impeached from the date on which the resolution is so passed.
DIFFERENCE BETWEEN IMPEACHMENT AND REMOVAL
Impeachment
Removal
a) The process of Impeachment is initiated only in the case of President's removal.
b) Impeachment requires 2/3rd majority of the total membership of the House.
c) The process of impeachment is followed only in the case of President's removal only on ground of "violation of the Constitution".
d) Relinquishes office the moment he stands impeached.
a) The process of Removal is resorted to in the case of removal of Judges of Supreme Court and High Court, CAG, Election Commissioners, etc.
b) Removal requires 2/3rd majority of the members present and voting and this 2/3rd should not be less than the absolute majority
of the House (i.e. not less than 50% of the total membership of the House).
c) Removal is followed on ground of proved misbehaviour or incapacity.
(d) Continues in office till the Resolution, passed by both Houses separately, gets President's assent.
PRIVILEGES OF THE PRESIDENT
1. The President is not answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and pe rformance of those powers and duties:
Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed to designated by either House of Parliament for the investigation of the charge under Article 61:
Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the government of a State.
2. No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.
3. No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.
4. No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of the office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.
POWERS OF THE PRESIDENT
As per Art. 53, the executive power of the Union is vested in the President and it is exercised by him either directly or through officers subordinate to him in accordance with the provisions of the Constitution. Although nowhere defined in the Constitution, the 'executive power', broadly embodies both determination of policy as well as carrying it into execution. This includes the initiation of legislation, maintenance of order, promotion of social and economic welfare, the direction of foreign policy, carrying on or supervision of the general administration discussed under following heads.
1. Administrative powers. All the executive functions of the Union are carried on in the name of the President. Although the execution of the law and administration of the departments of government are carried out by respective ministers, they are constitutionally not responsible because they perform their duties and functions on behalf of the President who, in fact, is the executive head of the State.
The President has been constitutionally empowered to make appointment to the following offices with or without consulting, as mentioned in the Constitution, certain authorities. These offices are-
a. The Prime Minister of India and on his advice other ministers.
b. The Attorney General of India.
c. The Comptroller and Auditor General of India.
d. The judges of the Supreme Court and the High Courts.
e. The Governor of a State or the Lt. Governor or Commissioner of a Union Territory.
f. The Finance Commission.
g.The members of the Union Public Service Commission and Joint Commission for a group of States.
h. The Chief Election Commissioner and other members of the Election Commission.
i. A special officer for the Scheduled Castes and Tribal areas.
The President also enjoys power to remove some of the above mentioned officials, e.g. the Governor of a State, the Attorney-General of India, members of the Public Service commission of the Union or of a State.
2. Military power. The President is the supreme command of the Armed Forces of India. Declarations of war and peace is done by the President. However, the Parliament, by law, can regulate this power.
3. Financial Powers / VETO Powers : Article 112 of the Indian Constitution deals with the financial powers of the President:
1. The President accords approval for introducing financial bills in the Parliament.
2. No money bill can be introduced in the Parliament without his consent.
3. The resident should, in respect of every financial year. Cause to be laid before the Parliament the annual financial statement of the Government of India for that year.
4. The Contingency Fund of India is also placed under his disposal.
5. He appoints the chairman and members of the Finance Commission to advise him or financial matters.
6. It may be noted that the President shall not refuse to give his assent on the money bills due to the fact that he himself has recommended such bills for consideration and approval of the Parliament.
4. Diplomatic Power. The President has the power to negotiate and conclude treaties and agreements with other countries, subject to the verification by Parliament. Also, the President sends and receives diplomatic representatives and Ambassadors.
5. Legislative Power. The Constitution confers various legislative powers on the President.
a. The President summons the Houses of Parliament, prorogues either House and dissolves the Lok Sabha (Art. 85).
b. He nominates 12 members to the Rajya Sabha and 2 members of the Anglo-Indian community to the Lok Sabha.
c. Headdresses the Houses of Parliament separately or jointly.
d. Certain Bills require prior approval of the President for introduction in the Parliament. These are- Money Bill, Financial Billot First Class, and Bill for the formation of new state (s) or for alteration of boundaries of a state.
e. Every Bill, to become an Act, must receive the President's assent. Except the Money Bill and Constitutional Amendment Bill, the President can return the Bill to the Parliament for reconsideration only once. However, the President can not return the Bill a second time and is constitutionally bound to give his assent.
f. The President also enjoys the veto power usually called pocket-veto. Using this power, the President can withhold the Bill for any period, because there is no time limit fixed in the Constitution. The idea behind this power is to check any hasty and ill-conceived action by the Legislature particularly if the Executive has only a doubtful majority.
g. The President causes to lay before the Parliament certain reports-(i) the Annual Financial statement (Budget) and supplementary Budgets, if any; (ii) thereportofthe Comptroller and Auditor General of India; (iii) the recommendations of the Finance Commission; (iv) the report of the Union Public Service Commission; (v) the report of the special officer for Scheduled Castes and Tribes and also the Backward classes, (vi) The report of the Special Officer for Linguistic minorities.
The most important power of the President is perhaps to promulgate ordinances under Art. 123. The promulgation of an ordinance is not necessarily connected with an 'emergency', but issued by the President in case he is convinced that it is not possible to have the Parliament enact on some subject immediately and the circumstances tender it necessary for him to take "immediate action" [Art. 123 (1)]. However, such an ordinance must receive Parliamentary approval within six weeks of the next session of the Parliament, otherwise it shall become invalid.
6. Judicial Powers. The President has power to grant pardons, reprieves, respites or remission, of punishment or to suspend, remit or commute the sentences of any person in cases-
a. where the punishment or sentence is by a Court Martial.
b. where the punishment or sentence is for an offence against any law relating to a matter within the executive power of the Union.
c. where the sentence is a death sentence.
The President is the only authority to grant pardons in case of death sentence. This power is exercised by him on advice of the Council of Ministers.
Pardon: Completely absolves the offender.
Commutation: "Exchange of one thing for another". Substitution ofone form of punishment to anothe lighter form. Example: Rigorousimprisonment may be commuted to simple imprisonment.
Remission: Reduction of the amount of sentence without changing itscharacter.
Respite: Awarding a lesser punishment on special grounds, e.g.Pregnant woman offender. Reprieve: Temporary suspension of death sentence.
DEATH PENALTY AND THE POWER OF PARDON
• The Supreme Court's judgement lays down that death sentence should be awarded in the "rarest of rare "cases.
• There is a need for the government to look at the law on pardon.
Role of President & Governor
• Under Article 72 (1)(c). the President has the power to grant pardons, reprieves, respites or remissions of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the law provides for a death sentence.
• The Constitution provides similar powers to the Governor under Art. 161.
• This itself requires clarification of these powers. Are these powers concurrent?
• If so, is the power of pardon exercised by the Governor final and not reviewable by the President? Apparently, it is not.
• Where the President has rejected a mercy petition, could the Governor entertain another petition and accept it?
• Dhananjoy Chatterjee submitted his second petition to the Governor of West Bengal after the President rejected the first mercy petition. Should a review in such cases not be barred?
• To avoid such eventualities, there should be a power of suo motu review by the President.
• These parallel powers have also led to a decision by the Governor of Tamil Nadu to commute the death sentence of Nalini, accused in the assassination of the late Rajiv Gandhi, while the sentence of three others stands but remains unexecuted in the absence of a decision on their petition to the President.
President and mercy petitions
Once a convict submits a mercy petition to the President, the Rashtrapathi Bhavan forwards the petition to the Ministry of Home Affairs, for seeking the Cabinet's advice on the matter. The MHA then forwards the same to the concerned State Government for eliciting its views. It is only then the MHA formulates its advice and tenders it to the President, on behalf of the Council of Ministers.
While the President can theoretically exercise his discretion under Article 72(1) (as the Constitution is silent on whether he was bound to consider the advice of the Union Council of Ministers), it seems a reasonable view to take that this power, like other powers of the President, is expected to be exercised on the advice of the Cabinet. In England, the sovereign invariably acts on the advice of the Home Secretary in this regard. In many States in the US, the Constitution or the law has provided for Advisory Boards to advise the Governor in the exercise of clemency.
Therefore, it is a sign of maturity of Indian federalism, that both the President and the MHA rely on the views of the concerned State Governments, before exercising this power. The State Governments are likely to take into account the likely impact on public order in those States, if the mercy petition is rejected or accepted. Thus if the State Governments concerned recommend inaction as a way out, should the Centre be blamed? Soli Sorabjee, for instance, has argued that the exercise of this power by the President should not be contingent on its possible impact on law and order in the State, and that the former should be free from such extraneous considerations.
7. Emergency Powers. This extraordinary power has been given to the President to meet any kind of threat to the country. The President can declare emergency under three circumstances-.
a. On the grounds of security threat to India by war, external aggression or armed rebellion. This is called national emergency (under Art. 352) and during this period all the fundamental rights except those under Arts. 20 and 21 are suspended.
b. On the ground of failure of Constitutional machinery in a State or States under Art. 356. This is called imposition of the President's rule.
c. On the ground of serious financial instability or threat to credit of India or any part thereof. This is called 'financial emergency' (Art. 360).
Apart from these, the President also has certain other powers which are scattered in the Constitution. These miscellaneous powers include:
a) making rules and regulations on various matters.
b) some special powers in the administration of the Union Territories. .
c) to appoint certain commissions for the purpose of reporting on administration of the Scheduled Castes (SCs) and Scheduled Tribes (STs) areas,
d) appointing a Special Officer to report on the working of the constitutional safeguards provided to the SCs and STs.
PROMULGATION OF ORDINANCES
Art 123: President has the power to promulgate ordinances.
• He can promulgate ordinance only when one or more Houses are not in session
• Ordinance must be approved within 6 weeks of the assembly of the House.
Ordinance making powers of the President
Article 123 of the Constitution grants the President certain law making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in the Parliament.
An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent Lists. Thus, the following
limitations exist with regard to the Ordinance making power of the executive:
• Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses of Parliament is not in session.
• Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there are circumstances that require taking 'immediate action'.
• Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving the Ordinance are passed by both the Houses.
Key debates relating to the Ordinance making powers of the Executive
There has been significant debate surrounding the Ordinance making power of the President (and Governor). Constitutionally, important issues that have been raised include judicial review of the Ordinance making powers of the executive; the necessity for 'immediate action' while promulgating an Ordinance; and the granting of Ordinance making powers to the executive, given the principle of separation of powers.
Data given below provides a brief historical overview of the manner in which the debate on the Ordinance making powers of the executive has evolved in India post independence.
Key debates on the President's Ordinance making power
RC Cooper vs. Union of India (1970): In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalize 14 of India's largest commercial banks, held that the President's decision could be challenged on the grounds that 'immediate action' was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
38thConstitutional Amendment Act (1975): Inserted a new clause (4) in Article 123 stating that the President's satisfaction while promulgating an Ordinance was final and could not be questioned in any court on any ground.
44lhConstitutional Amendment Act (1978): Deleted clause (4) inserted by the 38lh CAA and therefore reopened the possibility for the judicial review of the President's decision to promulgate an Ordinance.
AK Roy vs. Union of India (1982): In AK Roy vs. Union of India 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. However, it did not explore the issue further as there was insufficient evidence before it and the Ordinance was replaced by an Act. It also pointed out the need to exercise judicial review over the President's decision only when there were substantial grounds to challenge the decision, and not at "every rnsual and passing challenge
T. Venkata Reddy vs. State of Andhra Pradesh (1985): In T Venkata Reddy vs. State of Andhra Pradesh (1985), while deliberating on the promulgation of the Andhra Pradesh Abolition of Posts of Part- time Village Officers Ordinance, 1984 which abolished certain village level posts, the Court reiterated that the Ordinance making power of the president and the Governor was a legislative power, comparable to the legislative power of the Parliament and state legislatures respectively. This implies 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.
DC Wadhwavs. State of Bihar (1987): It was argued in DC Wadhwa v.s. State of Bihar (1987) the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances mid not as a substitute for the law making power of the legislature. More, the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the state legislature. A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years. The Supreme Court argued that if Ordinance making was made a usual practice, creating an 'Ordinance raj' the courts could strike down re-promulgated Ordinances.
DEBATE ON POWER OF PARDON
• In a letter to Maharashtra Governor K Sankarnarayanan, Press Council of India chief Justice Katju sought pardon for Sanjay Dutt under Article 161 of the Constitution, whose five-year sentence was upheld by the Supreme Court in an arms case related to the 1993 Bombay blasts.
• This issue has raised debate countrywide whether this matter comes under the purview of pardoning power granted to Governor or not. Legal luminaries have different views regarding this.
• One view is that Sanjay Dutt's case may be considered under Article 161 of the Constitution, while the others say that the executive power of the state government does not extend to matters enumerated in the Union list of the 7th Schedule of the Constitution of India.
• Entry 5 in the Union List consists of arms, firearms, ammunition and explosives.
• The Arms Act is a statute enacted by Parliament. The Governor's power of pardon under Article 161 of the Constitution of India, accordingly, does not extend to the sentence of any person convicted under the Arms Act.
Bills that needs President's recommendation
There are certain Bills which can be introduced in the Parliament only on the recommendation of the President such as -
• A Bill to alter the boundaries of the States or to change the names of the States (Art. 3).
• A Money Bill as detailed in Art. 110.
• A Financial Bill (category one) involving Art. 110 but containing other provisions as well.
• A Financial Bill (category two) which is an ordinary Bill but seeking to draw from the Consolidated Fund of India can be taken up for 'Consideration', that is 'reading two' in the process of passage of a Bill.
• Legislation involving Art. 31 A.
• Any legislation involving items of taxation in which the States are interested or one that seeks to redefine agricultural income etc.
• A State Bill that seeks to restrict freedom of trade.
It must be said that a Bill that requires the previous sanction of the President for the introduction in Parliament cannot be questioned in the Courts for its constitutionality, if such a sanction is not obtained after it is legislated upon, and the assent of the President is obtained.
The Office of the President is Chief Executive of the Indian Republic endowed with vast powers and functions. These powers and functions are. However more in the form than in substance and are exercised with aid and advice of the council of ministers headed by the Prime Minister. Thus, his position is nominal and ceremonial.
CHAPTER- 11
The Vice-President
Next to the President of India the highest position in the official warrant of Precedence is accorded to the Vice-President. His office is therefore highly prestigious. Article 63 creates the office of the Vice-President by declaring that “there shall be a Vice-President of India”.
Art. 63: The Vice-President of India
There shall be a Vice-President of India.
Functions of Vice President:
Art. 64: The Vice-President to be ex-officio Chairman of the Council of States
The Vice-President shall be ex-officio Chairman of the Council of State and shall not hold any other office of Profit.
• Provided that during any period when the Vice-President acts as President or discharges the functions of the President under Article 65, he shall not perform the duties of the office of Chairman of the Council of States and shall not be entitled to any salary or allowance payable to the Chairman of the Council of the States under Article 97.
• Vice President has no salary. But he is entitled to salary and allowances payable to the Chairman of the Council of States.
• Since VP is not a member of Rajya Sabha, he has no right to vote.
Duties of Vice-President in extra-ordinary circumstances
Art. 65: The vice-president to act as President or to discharge his functions during casual vacancies in the office, or during the absence, of President.
1. In the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or removal, or otherwise, the Vice-President shall act as President until the date on which a new President is elected in accordance with the provisions of this Article to fill such vacancy enters upon his office.
2. When the President is unable to discharge his functions owning to a absence, illness or any other cause, the Vice-President shall discharge his functions until the date on which the President resumes his duties.
3. The Vice-President shall, during, and in respect of, the period while he is so acting as, or discharging the functions of, President, have all the powers and immunities of the President and be entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
Election of Vice-President
Art. 66. Election of Vice-President
1. The Vice-President shall be elected by the members of an electoral college consisting of the members of both Houses of Parliament in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.
2. The Vice-President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected Vice-President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Vice-President.
Eligibility
3. No person shall be eligible for election as Vice-President unless he-
a) is a citizen of India;
b) has completed the age of thirty-five years;
c) is qualified for election as a member of the Council of States.
4. A person shall not be eligible for election as Vice-President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Government.
· For the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State.
· Nomination for the election must be subscribed by at least 20 electors as proposers and 20 electors as seconders.
· Contesting candidate has to make a security deposit of 15,000/-
Term of Office of the Vice-President
• For 5 years
• Can continue to hold office until his successor enters upon his office.
Resignation
• Letter to be addressed to the President
Removal of the Vice-President
Art 67 (b). A Vice-President may be removed from his office by a resolution of the Council of States passed by a majority of all the then members of the house and agreed to by the House of the People with simple majority; but no resolution for the purpose of this clause shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution;
Oath or affirmation by the Vice-President
• Is administered by the President or any other person appointed by him for the purpose in his absence.
Swear in the name of God
"I, A.B., do...................................that I will bear solemnly affirm true faith and allegiance to the Constitution of India as by law established and that I will faithfully discharge the duty upon which I am about to enter."
PRESIDENT
VICE PRESIDENT
1. Status and Functions
He is the executive head of the Indian Union and exercises his powers on the advice of the
He is the ex-officio chairman of the Rajya Sabha and regularly participates in the business of that House. But he acts as
council of Ministers
president when vacancy arises temporarily unable to discharge his functions. He has no executive function as such.
2. Election
i) Elected by an electoral college
ii) Election is through proportional representation by a single transferable.
iii) The electoral college consists of elected members of both Houses of Parliament and elected members of State Legislative Assemblies
Elected by an electoral college. Election is through proportional representation by a single transferable vote.
Electioral College consists of all members of Parliament only.
3. Qualification
i) should be a citizen
ii) should be 35 years of age
Should be a citizen. Should be 35 years of age.
iii) Must be qualified for election to the Lok Sabha.
Must be qualified for election to the Rajya Sabha.
iv) Must not hold an office of profit under the Union / State/ Local government, except the office of President, vice- President, Governor or Minister
v) Can be re-election indefinitely.
Must not hold an office of profit under the Union / State/ Local Government, except the office of President, Vice-President, Governor of Minister. Can be re-elected indefinitely Disputes regarding election are decided by the Supreme Court.
vi) Disputes regarding selection are decided by the Supreme Court.
4. Procedure for removal
i) Both the Houses of Parliament are equally involve.
Mainly the Rajya Sabha is involve.
ii) 14 days notice is needed to move the resolution for removal.
iii) Impeachment requires notice of intention by at least 1/4th of
14 days notice is needed to move the resolution for removal. Removal needs notice
followed by passing of the
the members of a House. Passing of 2/3rd majority of the House. Investigation by the other House and passing by
2/3rd majority of that House.
resolution by half the members of the Rajya Sabha, and the Lok Sabha agreeing to it by a simple.
CHAPTER- 12
Council of Ministers
The most important part of the Union executive is the council of Ministers. The Council of Ministers is the real executive and makes use of all the powers vested in the President by the Constitution.
• Art. 74 Says that there shall be a Council of ministers with Prime Minister as the head to aid and advise the President.
Other provisions as to Ministers
Art. 75. Other provisions as to Ministers
1. The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.
2. The Ministers shall hold office during the pleasure of the President.
3. The Council of Ministers shall be collectively responsible to the House of the People.
4. Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
5. A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.
CLASIFICATION OF MINISTERS
The Constitution does not say anything about this. But following the British parliamentary practices, the elected government in India also consists of three categories of ministers. They are-
1. Cabinet Ministers. They are the senior-most ministers to head a department with portfolio. They constitute the Cabinet and have the right to attend all the Cabinet meetings convened by the Prime Minister. Only the Cabinet ministers deliberate and decide on the policy matters. (The word 'Cabinet Ministers' has been incorporated into the Constitution through 44th Amendment Act in Art. 352)
2. Ministers of State. They are lower in rank to Cabinet ministers and normally assist the latter. Usually they are not given independent charge of a ministry but the Prime Minister has the prerogative to allot an independent charge if he desires so. They can not attend the Cabinet meetings normally but can be invited to attend them.
3. Deputy Ministers. They can not hold independent charge and always assist the Cabinet or State ministers or both. Also, they never attend the Cabinet meetings.
A minister can be a member of either of the House, but he is liable to vote only in the House to which he belongs. A person not belonging to any House can be appointed as a Minister,
4. There are one more category called Parliamentary Secretaries who assist senior ministers in discharge of their political duties. However since 1967 except in Rajiv Gandhi tenure no Parliamentary Secretary has been appointed.
5. At times Council of Ministers also include Deputy Prime Minister appointed for political reasons.
· The office the Deputy Minister is not mentioned in the Constitution.
· Except Prime Minister no other Minister is minister is mentioned in the Constitution.
· So far 6 persons served as the Deputy Prime Ministers of India.
· Sardar Vallbhbhai Patel , Morarji Desai, Charan Singh, Babu Jagjeevan Ram, Devi Lal, LK Advani
· The word “Cabinet” is not originally mentioned in the Constitution. It was added in Article 352 in the year 1978 through 44th amendment.
• Oath of office for a minister for the Union
Form of oath of office for a Minister for the Union
I swear in the name of God
"I. AB., do. that I will bear true
solemnly affirm
faith and allegiance to the constitution of India as by law established. That I will uphold the sovereignty and integrity of India, that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I will do right to all manner of people in accordance with the Constitution and the law, without fear or favour affection or illwill."
II
Form of oath of secrecy for a Minister for the Union
swear in the name of God
"I, A.B., do. that I will not directly
solemnly affirm
or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister."
• The oath is administered by the President or any person appointed for the purpose by him in his absence.
APPOINTMENT OF PRIME MINISTER
Prime Minister is the head of COMs. In normal circumstances, in the appointment of PM, President can hardly exercise his discretion because leader of the majority party of the lower House is appointed as PM. Here PM enjoys the confidence of lower House.
• But if no party is in a position to gain required majority and if a coalition govt. is to be formed, president can exercise his choice.
• The criteria is: President can choose the leader of any party who in his opinion can form a stable ministry.
• This power was first executed in India in the year 1979 when Dr Neelam Sanjeeva Reddy appointed Charan Singh as the Prime Minister after the collapse of the Janata Party government.
• A Minster may be a member of either houses of the Parliament.
• The Prime Minister may be a member of any of the two houses of the Parliament.
• Indira Gandhi (1966) , Deve Gowda (1996), I K Gujral (1997), Manmohan Singh (2004) were the members of Rajya Sabha.
QUALIFICATION OF PRIME MISTER
According to Article 84 no person is qualified to be chosen to fill a seat in Parliament unless he
is.
a) Citizen of India.
b) He is not less than 30 years of ago in case of a seat in the council of states and not less than 25 years of age in case of a seat in the House of People.
c) Possesses such other qualifications as may be prescribed by law.
Representation of people’s Act: The Representation of the people’s Act requires that the name of the person desiring to be a member of Parliament should be registered in any parliamentary constituency.
The Constitution does not lay down any specific qualifications for the office of the Prime Minister. The only qualification stipulated is that he should be qualified to be the Member of Parliament. To be a member of parliament, a person should be a Citizen of India.
Make and subscribe an oath expressing his true faith and allegiance to the constitution, must not be less than 30 years of age in the case of Rajya Sabha and 25 years of age in case of the Lok Sabha and possess such other qualification as may be laid down by Parliament. The Representation of the people’s Act also provide that his name should be registered in any parliamentary constituency.
The constitution permits a person to be appointed as Prime Minister even though he is not a Member of Parliament on the date of his appointment. However, according to article 75(5) he will ceases to be a Prime Minister in case he does not secure the membership of either house of Parliament with in a period of six months.
It has been a general practice that the Prime Minister belongs to the Lok Sabha. However, there is no provision in the constitution which prevents a member of the Rajya Sabha from becoming the Prime Minister. It is only a convention that the President should appoint the leader of the party or a group of parties who commands majority support in the House of People (Lok Sabha) as Prime Minister. It may be noted here that or former Prime Minister MR. H.D. Deve Gowda was a member of the Rajya Sabha.
There is no specific provision in the Constitution regarding the emoluments of the Prime Minister. The constitution has bestowed these powers on the parliament.
Removal of the Prime Minister:
As regards the removal of the Prime Minister by the President Article 75(2) which conditions his continuance in office dependent on “the pleasure of the President: has to be read with Article 75(3) which states that all the ministers are collectively responsible to the House of the People. Tis taken to mean that so long as the Prime Minister is able command majority support in the Lok Sabha, there is not threat his continuance in office.
POSITION OF PRIME MINISTER
• 'Primes Inter Pares' First among the equals
• Chief stone in the Cabinet Arc.
• PM is above ail ministers. COM cannot exist without PM. If PM resigns or passes away, the whole COM stands dissolved automatically. Thus PM is central to the life and death of the COM.
• PM has the prerogative in choosing the members of his cabinet and their portfolios. He is the bridge between COM and the Parliament. He can answer in debates relating to any ministry.
• Is the President bound to dissolve LS on the advice of a PM who doesn't enjoy the confidence of the house?
The well established convention in England for more than a century, is that, the sovereign wouldn't refuse a dissolution when advised by the PM. Even if he is defeated in a no-confidence motion.
• Whether this should be applied in India situation?
The overwhelming juristic opinion is that advice of the Prime Minister for dissolution will not be binding on the President in the following 4 cases.
1. When he looses his majority
2. When he is unable to prove his majority
3. When a vote of no-confidence is passed
4. When he is not facing the Parliament; but President has solid proof that ruling party doesn't have a majority
Powers and functions of Prime Minister.
1. Formation of the council of ministers: The ministers in the council of ministers are appointed by the president on the advice of the Prime Minister rests with the Prime Minister. The number of ministers and the size of the cabinet is determined by the Prime Minister.
2. Distribution of Portfolios: After recommending the members of the council of ministers the Prime Minister has the power to distribute portfolios among the ministers. The Prime Minister has a free hand in the distribution of portfolios., can review such distribution, reshuffle the ministry and request any minister to resign his services are not considered necessary.
3. Presiding over the council of Ministers: As the first member of the council of ministers the prime Minister presides over the meeting of the council of ministers.
4. Co-Ordination of Cabinet Activities: The Prime Minister’s next important role after the formation of the cabinet is the coordination of the cabinet activities. As the Chairman of the cabinet that Prime Minister decides when the cabinet meetings are to be held. E controls the agenda and it is for him to accept or reject proposals for discussion submitted by the ministers. All decisions of the cabinet are generally unanimous but if on rare occasions voting does take place, as chairman of the cabinet the Prime Minister has a casting vote.
5. Coordinating and Guiding the work of various Ministries: After the allocation of the portfolios the Prime Minister keeps an eye on what is going on in the various departments and he can intervene if he feels that things are not going on smoothly or in accordance with the goals and policies of the government. He has to coordinate and guide the working of the various ministers and ministries. He more than any one else. Prime Minister must endeavor to see the work of the government as a whole and bring the various governmental activities in to reasonable relationships with one another. He is the manager in chief of the governments business.
6. Leader of the Lok Sabha: The Prime Minister by virtue of being the leader of the majority of party in the Lok Sabha is expected to provide leadership in the house. In this capacity he performs the following functions:
i. Advising the President to summon the Parliament and Prorogue the session.
ii. To ensure that the proceedings of the Parliament are conducted with dignity and decorum.
iii. Leading the process of legislation. The Prime Minister being an integral part of the legislation in Parliament is expected to give directions to the process of legislation. All important bills emanate from the cabinet. Hence no important bill can be introduced in the Lok Sabha without his concern. He together with the speaker ensures that the business of the Lok sabha is conducted systematically.
7. Link between the President and the Council of Ministers: The Prime Minister acts as the direct link between the president and the council of Ministers. According to Article 783 he communicates the decisions of the council of ministers relating to the administration of the affairs of the union and proposals for legislation. He furnishes the President such information relating to the administration of the affairs of the union and proposals for legislation as the president may call for. He on the request of the President. Submits may matter to the consideration of the union
council of ministers on which a decision has been taken by a minister but which has not been considered by the cabinet.
8. Advising the President i=on all major appointments: Several appointments of higher ranks are made by the President on the recommendations of the Prime Minister. There are the appointments of the chiefs of the Army, Navy and Air Force, Chief Justice and Judges of the Supreme Court and the High Courts, Comptroller and Auditor-General of India, Election Commissioner. Attorney-General. Ambassadors and High commissions, Chairman and members of UPSC, Governors and Lt. Governors etc.
9. International Relation: The Prime Minister is the chief representative of the nation in the international sphere the participates in international conferences, pays official visits to foreign countries, maintains relations with the UN and other international organization, negotiates with heads of states, signs treaties and agreements, advises the President to declare war and conclude peace, and advises the president to grant or withhold recognition to nations. Throughout he has to maintain a very close collaboration with the Ministry of Defence and the Ministry of External Affairs. If he is heard, known and respected outside India, it helps him gain greater prestige even within the country.
10. Financial Management: The Prime Minister works in close collaboration with the Finance Minister in an atmosphere of total mutual trust and adjustment. The budget and the important money bills are prepared under the close supervision and scrutiny of the Prime Minister. Important questions relating to trade, economy, foreign aid, currency banking, taxation, deficit financing etc. are all decided by the Prime Minister and the Finance Minister.
11. Planning: The Prime Minister is a chairman of the planning commission which formulates five year plans and other important economic programmes for the country. He himself can also design and guide the formulations of programmes for the economic development of the nation. Moreover as the chairman the National Development Council he also has the responsibility of coordination the policies and programmes of the states.
PRINCIPLES OF COLLECTIVE RESPONSIBILITY
• One of the basic principle of Parliamentary form of government is the principle of collective responsibility. It means, the Council of Ministers is as a body, responsible to the Lok Sabha for the General Conduct of affairs of the Government. No matter whatever is their personal differences of opinion within the cabinet, once a decision has been taken by it, it is the duty of each and every minister to stand by it and support it both in Legislature and outside.
Individual Responsibility of Minister
• Every minister is responsible for the acts of the officers of his department. He has to answer question regarding the affairs of his department in the Parliament.
RELATIONSHIP BETWEEN THE PRESIDENT AND THE PRIME MINISTER
In a Parliamentary system of government the relationship between the President (Head of the State) and the Prime Minister (Head of the Government) assumes significance for the smooth functioning of the State. This relationship is regulated by specific provisions of the Constitution of India and also by well-established conventions under the English Constitution. Despite this at times controversy arises with regard to the relationship between these two most important functionaries of the State. During the Presidency of Mr. Gyani Zail Singh there was considerable controversy in the relationship between the President and the Prime Minister.
Article 53 together with Article 74 makes it clear that even though the Constitution vests the executive power in the President it is to be exercised strictly on the advice tendered by the Council of Ministers headed by the Prime Minister. Therefore, it is the Prime Minister who enjoys real power. The President has to function as a ceremonial head. He can neither ignore nor can act against the advice tendered by the Council of Ministers. However, if he acts against or ignores such advice, it would amount to violation of the Constitution and may incur impeachment.
But under Article 78 the Prime Minister is under a Constitutional obligation:
a) To communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation;
b) To furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for, and
c) If the President requires, to submit for the consideration of the Council of Ministers any matter on which decision has been taken by a Minister but which has not been considered by the Council of Ministers. The President, therefore, enjoys the right to information on the affairs of the State
As the Prime Minister is constitutionally obliged to furnish such informations to the President, any attempt to withhold information or failure on the part of the Prime Minister in furnishing informations amounts to dereliction of duty. This may lead to bitter relationship between the two most important functionaries of the State. Ultimately it is the State which will suffer.
RIGHTS AND PRIVILEGES OF THE PRIME MINISTER
• He enjoys the prerogative to select the ministers, distribute portfolios to them and even have them dismissed by the President.
• He summons, decides the agenda and presides over the Cabinet meetings. Even the venue of such meeting is decided by the Prime Minister.
• He has the right to call for any file from any ministry. This right is basically in pursuance of his role as a coordinator among various ministers.
• He forms the link between the Cabinet and the President. Though a Minister can have access to the President, any important communication is to be routed through the Prime Minister, stipulated under Art. 78.
• He has the right to intervene in any debate in the Parliament.
• It is the Prime Minister's prerogative to announce major policy decisions inside or outside the Parliament.
POINTS:
· Charan Singh was the only Prime Minister, under whose regime Parliament never met.
· Guljari Lal Nanda was the only interim Prime Minister for 2 times.
· Sardar Vallabhbhai Patel was the first Deputy Prime Minister of India from 1947 – 50.
· Morarji Desai was the first Deputy Prime Minister after the commencement of the Constitution.
· Devilal was the Deputy Prime Minister for 2 times. 1989 and 1990 under the two Prime Ministers V P Singh and Chandra Shekar.
· L K Advani was the last Deputy Prime Minister of India.
CHAPTER- 13
The Parliament
Under the Constitution, the legislature of the Union is called the parliament. The Indian Parliament is constitutes on the basis of the principle of bi-cameralism. That is, the legislative has two houses or chambers. As the Constitution established, a federal system of government, there was almost unanimity among the framers for achieving a balance between the direct
Structure of Parliament
[[
Art. 79. Constitution of Parliament. There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.
• Though president is not a member of either House of Parliament, yet like British crown, he is an integral part of the Parliament and performs certain functions relating to its processings.
Functions of Parliament
1. Political and Financial Control or Executive Responsibility
2. Surveillance of administration or Administrative Accountability
3. Right to information
4. Representational, grievance ventilation
5. Law making, developmental social engineering
6. Amending of constitution.
RAJYA SABHA / COUNCIL OF STATES
Composition
Art. 80. Composition of the Council of States
1. The Council of States shall consist of-
a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and
b) not more than two hundred and thirty-eight representatives of the States and of the Union territories.
Criteria for Nomination
3. The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following namely: literature, science, art and social service.
Election to Rajya Sabha
4. The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.
DURATION OF RAJYA SABHA
Art. 83. Duration of Houses of Parliament
1. The Council of States shall not be subject to dissolution, but asnearly as possible one-third of the members thereof shall retireas soon as may be on the expiration of every second year inaccordance with provisions made in that behalf by Parliament bylaw.
Representation of States are based on population unlike in US. InUS equality of States is recognised.
Rajya Sabha represents the federal character in the Parliament.
Chairman & Deputy Chairman of Rajya Sabha
Art. 89. The Chairman and Deputy Chairman of the Council of States
1. The Vice-President of India shall be the ex-officio Chairman of the Council of States.
2. The Council of States shall, as soon as may be, choose a member of the Council to be Deputy Chairman thereof and, so often as the office of Deputy Chairman becomes vacant, the Council shall choose another member to be Deputy Chairman thereof.
• There is no reservation for SC/ST in Rajya Sabha.
Vacation, Removal from the office of Dy. Chairman
Art. 90. Vacation and resignation of, and removal from, the office of Deputy Chairman. A member holding office as Deputy Chairman of the Council of States-
a) shall vacate his office // he ceases to be a member of the Council;
b) may at any time, by writing under his hand addressed to the Chairman, resign his office, and
c) may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council, Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution.
Presiding Officer during a resolution for removal under consideration
Art92. The Chairman or the Deputy Chairman not to preside while a resolution for his removal from office is under consideration
1. At any sitting of the Council of States, while any resolution for the removal of the Vice-President from his office is under consideration, the Chairman, or while any resolution for the removal of the Deputy (chairman from his office is under consideration, the Deputy Chairman, shall not, though he is present, preside, and the provisions of clause (2) of Article 91 shall apply in relation to every such sitting as they apply in relation to a sitting from which the Chairman, or as the case may be, the Deputy Chairman, is absent.
2. The Chairman shall have the right to speak in, and otherwise to take part in proceedings of the Council of States while any resolution for the removal of the Vice-President from his office is under consideration in the Council, but notwithstanding anything in Article 100, shall not be entitled to vote at all on such a resolution or on any other matter during such proceedings.
Qualifications to become a member of Rajya Sabha
• A citizen of India
• Not less than 30 years of age
• An ordinary citizen/registered voter in the state or union territory from where he is to be chosen.
• Should not hold any office of profit under the government
• Shouldn't be of unsound mind
• Shouldn't be an un-discharged insolvent. Disqualifications (Art:102):-
• If a person has been convicted among other things for promoting enmity between different groups or for social crimes like untouchability, dowry, sati etc, he is disqualified from being chosen as a member.
• It a person is sentenced to imprisonment for not less than 2 years-He is disqualified for 5 years after release.
• A dismissed Government Servant-disqualified for 5 years from the date of dismissal.
• The members of Rajya Sabha are disqualified by the President after seeking the opinion from the Election Commission.
FEDERAL FEATURES OF THE RAJYA SABHA
· Under Art. 249, the Council of States or Rajya Sabha is empowered to declare by a resolution, supported by not less than two-thirds of the members present and voting (a special majority) that Parliament should make laws with respect to any matter enumerated in the State list. Such a resolution remains in force for a specified period, not exceeding one year. (The resolution can be initiated only in the Rajya Sabha).
· Art. 312 empowers the Rajya Sabha to declare by a resolution, supported by not less than two- thirds of the members present and voting, that it is necessary or expedient in the national interest, that Parliament should create one or more All India Services, including All-India Judicial Services (42nd Amendment, 1976), common to the Union and the States, and also to regulate the recruitment and conditions of service of persons appointed to such service. (Lok Sabha cannot initiate the process)
· In case of the Constitutional Amendment Bill, it must be passed by the Rajya Sabha separately. There is no provision for a joint-sitting to pass such Bills.
· The Ordinary and Financial Bills should have the approval of the Rajya Sabha. There are provisions for joint-sittings in these cases.
· The members of the Council of Ministers could also be taken In mi the Rajya Sabha. Thus, States indirectly have a say in policy making.
· The members of the Rajya Sabha participate in the election of the President. Besides, for the impeachment of the President n resolution to this effect must have the approval of not less than two-third members of the Rajya Sabha separately.
· In cases of declaration of emergencies under Article 352 and Article 356 by the President (who, in fact, proclaims them on the advice of the Council of Ministers), such declarations must be approved by the Rajya Sabha within a period of one month and two month1, respectively after such declarations.
USEFULNESS OF THE RAJYA SABHA
It is said that in a Federal Constitution the second chamber is a necessity. It plays an important role in matters of legislation and therefore it should be retained. The Rajya Sabha is desirable because it fulfill the following purposes:
1. It is considered useful because senior politicians and statesmen might get an easy access to it without undergoing the ordeal of contesting general elections. So, the experience and talent is not lost by the country and their services are utilized.
2. The Rajya Sabha acts as a revising House over the Lok Sabha which, being a popular House may be tempted to act rather hastily keeping in view of public opinion.
3. The Rajya Sabha is a House where the States are represented, keeping with the federal principles.
4. Besides, in recent years, for the first time in the history of Indian Parliament the ruling Party alliance does not have majority in the Rajya Sabha. Resultantly, certain Bills which require to be passed by both Houses separately do not get a smooth passage. This has helped put a check on government's hasty and ill considered moves - for example: (a) Now it has become increasingly difficult to invoke Art 356 as it requires approval by the Rajya Sabha within 2 months of its proclamation, (b) Since provision for joint sitting is not available in the case of Constitution Amendment Bills, Government cannot seek amendment of the Constitution on petty and flimsy grounds.
LOK SABHA
Composition
Art. 81. Composition of the House of the People
1. Subject to provisions of Article 331, the House of the People shall consist of
a) not more than five hundred and thirty members chosen by direct election from territorial constituencies in the States, and
b) not more than twenty members to represent the Union territories, chosen in such manner as Parliament may by law provide.
c) 2 nominated members from Anglo-Indian community, if president feels that they are not adequately represented.
Eligibility.
• Not less than 25 years of age
• Registered as a voter in any of the constituencies of India.
Special Powers of Lok Sabha
• Loksabha has the exclusive power over the passage of money hills. Rajya Sabha has only recommendatory power.
• A money bill or financial bill can be introduced only in Lok Sabha.
• Art 352: The Lok Sabha alone has the power to pass a resolution, disapproving the continuance of National Emergency with simple majority.
• A confidence or No-confidence motion is taken only in Lok Sabha.
Tenure
• For a period of 5 years - unless dissolved before
• Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.
Speaker of the Lok Sabha
Art. 93. The Speaker and Deputy Speaker of the House of the People The House of the People shall, as soon as may be, choose two members of the House to be respectively speaker and Deputy Speaker thereof an, so often as the office of Speaker or Deputy Speaker becomes vacant, the House shall choose another member to be Speaker or Deputy Speaker, as the case may be.
Vacation/Resignation of Speaker/Dy. Speaker
Art. 94. Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker A member holding office as Speaker or Deputy Speaker of the House of the People-
• shall vacate his office if he ceases to be a member of the House of the People;
• may at any time, by writing under his hand addressed, if such member is the Speaker, to Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker resign his office, and
• may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House:
• Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen day notice has been given of the intention to move the resolution:
• Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the People after the dissolution.
Special Powers of Speaker
• Whether a bill is money bill or not is decided by the speaker
• Presides the joint sitting of Parliament.
• Parliamentary committee come under Speaker: Speaker appoints the chair persons of such committee.
• If speaker is a member of a committee, he is the ex-oficio chairman of such committee.
• When Lok Sabha is dissolved, speaker continues to be in office till his successor takes over.
THE LEADER OF THE OPPOSITION
The Leader of the Opposition is the politician who leads the official opposition in either House of the Parliament of India.
While the position also existed in the former Central Legislative Assembly of British India, and holders of it there included Motilal Nehru, it received statutory recognition through the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 which defines the term "Leader of the Opposition" as that member of the Lok Sabha or the Rajya Sabha who, for the time being, is the Leader of that House of the Party in Opposition to the Government having the greatest numerical strength and recognized, as such, by the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha. However, in order to get formal recognition, the concerned party must have at least 10% of the total strength of the House (55 seats in the Lok Sabha). If any party fails to get 10% seats in opposition, the House will not have recognized leader of the opposition. The post of Leader of the Opposition can only be awarded to the leader of a single political party and not to the leader of an alliance, even if the alliance was formed prior to the election. This means that a single party would have to meet the 10% seat criteria, not an alliance.
The Leader of the Opposition enjoys the rank of a Cabinet Minister. In cases where there is no officially recognized Leader of the Opposition, the leader of the single largest group in opposition will discharge the role of leader of opposition. However, leader of the largest group in does not receive the salaries and allowances that an officially recognized one would enjoy.
This is the most accepted or most spoken rule of appointing this post but when we refer to "Salary and Allowances of Leaders of Opposition in Parliament Act, 1977" by which the post has got official and statutory status, the majority required is decided by the head of the houses, that is speaker and chairman as the case maybe.
The Leader of the Opposition serves on several important committees, including the selection panels for the Chief Vigilance Commissioner, Central Bureau of Investigation Director and members of the Lokpal national human right commission members and chairman and chief information commissioners. Central vigilance Commission Act, 2003, clause 4, explicitly provides for the leader of the single largest group in opposition to be inducted as a member of the selection
committee in a scenario where the lower house of parliament does not have a recognized leader of the opposition.
The Lok Sabha had no recognised Leader of the Opposition until 1969(Except A.K. Gopalan in the First Lok Sabha). The post was also vacant between 1980 and 1989. In Rajya Sabha until 1969, there was no Leader of the Opposition in real sense of the term. Till then, the practice was to call the Leader of the party in Opposition having the largest number of the members as the Leader of the Opposition, without according him any formal recognition, status or privilege. The office of Leader of the Opposition was given official recognition through the Salary and Allowances of Leaders of the Opposition in Parliament Act, 1977. This Act defines the Leader of the Opposition in Rajya Sabha, as a member of the Council of States who is, for the time being, the Leader in that House of the party in opposition to the Government constituting the greatest numerical strength and recognized as such by the Chairman of the Council of States. Thus, the Leader of the Opposition should satisfy three conditions, namely, (i) he should be a member of the House (ii) the Leader in Rajya Sabha of the party in opposition to the Government having the greatest numerical strength and (iii) be recognized as such by the Chairman, Rajya Sabha
In the present case, this means that a political party must have at least 55 MPs (one-tenth of the strength of the Lok Sabha - 543 elected members) to be recognized by the Speaker as a Parliamentary Party. Only the leader of such a Parliamentary Party will be eligible to be recognized as Leader of the Opposition. A political party which fails to command the required one-tenth strength, cannot be recognised as a Parliamentary Party. It is recognized as a Parliamentary Group, provided it has 30 MPs.
Protem Speaker
· Appointed by president
· To preside over the newly constituted Lok Sabha
· Administer the oath of office to the members
· Conducts the election for speaker's post
· Normally-senior most member of Lok Sabha becomes Protem-speaker.
· Protem-speaker for 14th Lok Sabha was Kamal Nath.
Oath by Member of Parliament
Form of oath or affirmation to be made by a member of Parliament: "I, A.B., having been elected (or nominated) a member of the Council of States (or the House of the People swear in the name of God
do. that I will bear true
solemnly affirm
faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."
Quorum in Parliament
• Until Parliament by law otherwise provides, the quorum to constitute a meeting of either House of Parliament shall be one-tenth of the total number of members ofthe House.
• If at any time during a meeting of a House there is no quorum it shall be the duty of the Chairman or Speaker, or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum.
Vacation of seats
• If a member absents himself from the house for a period of 60 days without the permission of the house, the house may declare his seat vacant.
Penalty for sitting and voting when not qualified
Art 104. Penalty for sitting and voting before making oath or affirmation under Article 99 or when not qualified or when disqualified
If a person sits or votes as a member of either House of Parliament before he has complied with the requirements of Article 99, or when he knows that he is not qualified or that he is prohibited from doing so by the provisions of any law made by Parliament, he shall be liable in respect of each day on which he so sits or votes to a penalty ol livn hundred rupees to be recovered as a debt due to the Union.
DISQUALIFICATION OF THE MEMBERS OF PARLIAMENT
The members of the Parliament (Lok Sabha and Rajya Sabha) can be disqualified on one or more of the following grounds enumerated in
Art. 102 of the Constitution-
Clause (1)
• If he holds any office of profit under the Union or the State government, other than an office declared by Parliament, by law, not to disqualify its holder;
• If a competent court declares him to be of unsound mind;
• If he is an undischarged insolvent;
• If his citizenship is found forged or if he voluntarily acquires the citizenship of any foreign country or is under any acknowledgment of allegiance or adherence to a foreign State;
• If he is so disqualified under any law by Parliament;In case of any dispute regarding the disqualification on the above grounds the President's decision, in accordance with the opinion of the Election Commission, shall be final (Art. 103).
Clause (2)
(inserted by 52nd Amendment, 1985):
• If he is so disqualified under the Tenth Schedule i.e. on the grounds of defection.
Immunities and Privileges of Members and Parliament
• Privilege in its legal sense means an exemption from some duty, burden, attendance or liability to which others are subject.
• Without these privileges the Parliament and its members cannot perform their functions in the manner they are expected to Privileges are granted to maintain the independence of action and the dignity of the position of the Houses and its members.
Immunities & Privileges of a Member:
• Freedom of Speech; far wider scope than a common man. Members are not subject to jurisdiction of courts for the speech in the floor of the House; also any speech by a member, outside Parliament, which is authorized by Parliament, cannot be questioned.
• Freedom from arrest of members in civil cases, during the continuance of the Session, 40 day before its commencement and 40 days after its conclusion.
• Exemption of members from liability to serve as jurors.
Immunities and Privileges of House:
• Right to regulate its internal affairs i.e. proceeding without external interference.
• The right to exclude others
• The right to publish debates and proceedings and the right to restrain publication by other.
• The right to publish parliamentary misbehavior
• The right to punish members and outsiders for breach of its privileges. Punishment can be reprimand, admonition or imprisonment.
Art. 87 Special address by the President
• At the commencement of the first session after each general election to the House of the People and at the commencement of the first session of each year the President shall address both Houses of Parliament assembled together and inform Parliament of the causes of its summons.
Sessions of Parliament
Art. 85. Sessions of Parliament, Prorogation and dissolution.
1. The president shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
2. The President may from time to time:
a) prorogue the Houses or either House;
b) dissolve the House of the People.
Special Session
There is a provision for special sessions in the Constitution. In this case it can be convened by the President on the recommendations of the Council of Ministers on the basis of a 14 days of advance notice to the President or the Speaker, as the case may be. In another case, if the Lok Sabha is not in session, not less than one-tenth of the members can, on prior notice of 14 days, write to the President for convening a session for the rejection of national emergency (under Art. 352). The Council of Ministers does not play any role in this.
LEGISLATIVE PROCEDURE IN PASSAGE OF BILLS
Bill - A Proposed legislation
Law - A bill becomes a law when it passed by the two houses and is assented to by the President. Types of Bill
1. Ordinary Bill
2. Money Bill
3. Financial Bill
4. Constitutional Amendment Bill
5. Private Member's Bill
Ordinary Bill
• Any bill other than financial & money Bill can originate in either house of parliament.
• After it is passed by both house, president's assent is required. Procedure: A bill has to pass through 3 stages known as readings
Money Bill
Art 110: Definition of "Money Bills".
1. For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealings exclusively with money matters, i.e. Art 110(1)
2. If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.
• It can be introduced only in Lok Sabha on the Recommendation of President.
Assent of President Art. 111. Assent to Bills
When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom:
• Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom.
• But he cannot with hold a Constitutional Amendment bill or a money bill as this can lead to the violation of the Constitution.
Financial Bills
Three kinds are there:
1. Money Bills - Art 110(1)
2. Other Financial Bill At 117(1)
3. Bill Involving expenditure Art 117(3)
Financial Bill: A part from dealing with one or more matters mentioned in Art 110(1). It deals with other matters also. Thus Financial Bill is a money bill to which provisions of general legislation are also added a part from one or more matters of Art 110(1)
• All Money bills are Financial Bills. But all Financial bills are not money bills.
Procedure
• Introduced only in Lok Sabha.
• President recommendation is required.
• After the Introduction in Lok Sabha the Procedure is similar to that of ordinary Bills ie. Rajya Sabha has equal powers to that of Lok Sabha. If dead Lock arises, joint sitting has to be there.
THE RULE OF LAPSE
THE money allotted by the legislature expires at the close of the financial year as no portion unspent during the year may be reserved in apportioned by transfer to deposits or any other head or drawn and kept in cash to, be expended after the end of the financial year for which the grant was made. This is known as the 'rule of lapse'.
This rule is basically applied in order to exercise control but many a time it leads to rash spending toward the end of the financial year.
POSITION OF BILLS AT THE TIME OF DISSOLUTION OF LOK SABHA
Briefly, the position of various items of business pending before the LokSabha at the time of its dissolution is as under:
• All bills pending in the Lok Sabha at the time of dissolution, whether originating in the House or transmitted to it by the Rajya Sabha, Lipse.
• Bills passed by the Lok Sabha, but which have not been disposed of and are pending in the Rajya Sabha on the date of dissolution, lapse.
• Bills originating in the Rajya Sabha, which have not been passed by the Lok Sabha but are still pending before the Rajya Sabha, do not lapse.
• Bills passed by both the Houses and sent to the President for assent do not lapse on dissolution of the Lok Sabha.
• Bills returned by the President for reconsideration do not lapse and can be reconsidered by the succeeding House.
• All other businesses pending in the Lok Sabha viz. motions, resolutions, amendments, supplementary demands for grants, etc.at whatever stage, lapse on dissolution.
Joint Sitting of Parliament
Art. 108. Joint sitting of both Houses in certain cases
1. If after a Bill been passed by one House and transmitted to the other House-
a) the Bill is rejected by the other House: or
b) the Houses have finally disagreed as to the amendments to be made in the Bill; or
c) more than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has lapsed by reason of a dissolution of the House of the People, notify to the Houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deliberating and voting on the Bill.
• Provided that nothing in this clause shall apply to a Money Bill.
BUDGET
· For the development of the nation and for the implementation of the welfare schemes the government needs to spend money.
· When the government is spending money, it also collects money from the people in the form of taxes.
· Hence the budget includes both income and expenditure.
· Budget is an anticipated income and expenditure of the Government.
· This is calculated for one year.
· This year is called a financial year.
· In India the financial year starts on April 1 and ends on March 31.
· The budget is prepared for the forthcoming financial year.
· It means the government plans in advance what will be the expenditure in the coming financial year.
· Once the government is clear about the expenditure that is going to be incurred in the forthcoming financial year the government also plans from the income.
Who prepares the budget?
The overall responsibility of the preparation of the budget lies with the Finance Minister.
Presentation of Budget
· Once the preparation of the budget is done the budget is presented.
· The budget is presented in the Parliament with the prior permission of the President.
· The budget is first presented in the Lok Sabha.
· The budget should not be presented in the Rajya Sabha first.
· In general the budget is presented in the Lok Sabha on the last working day of February.
· Before the presentation of the general budget, the Railway budget is presented.
· The Railway budget is presented 1 or 2 days before the general budget.
Process
· After the general discussion on the budget, voting on demand for grants takes place.
· 26 days are allotted for the voting on demands for grants.
· The Cut motions take place during these 26 days with the permission of the Speaker.
· The Cut motions are moved by the members of opposition party.
· The Cut motions are meant for reducing the expenditure by the government.
· There are 3 types of cut motions like Policy cut, Economy cut and token cut.
· After this all the demands that are voted together will be put together and presented again in the Lok Sabha, this is called Appropriation (Expenditure) bill.
· There is no discussion on Appropriation bill and only voting takes place.
· Then the Appropriation bill is forwarded to the Rajya Sabha.
· The Rajya Sabha cannot vote on this and only discus and may give recommendations to the Lok Sabha.
· The Lok Sabha may or may not accept the recommendations.
· In any case the Rajya Sabha must return the bill to Lok Sabha within 14 days.
· Later the bill is presented to the President for consent.
· The Appropriation bill becomes Appropriation Act with the consent of the President.
· This is the authorization by the Legislature to the Executive to draw the money from the Consolidated Fund of India.
· The Finance bill is also presented in the Lok Sabha.
· The Finance bill contains the tax proposals.
· The Parliament can reduce or abolish a tax.
Art. 112. Annual financial statement
1. The President shall in respect of every financial year cause to be laid before both the Houses of Parliament a statement of the estimated receipts and expenditure of the Government of India for that year, in this Part referred to as the "annual financial statement".
• It is presented to Lok Sabha by finance Minister
• It is presented on the last working day of February
• Budget is not discussed and passed as a single unit It is divided into two parts
1. Appropriation Bill: Expenditure part
2. Finance Bill: tax proposals: From where money comes or How to meet the expenditure.
• Appropriation Bills: Grants and demands of Ministries. It also includes charged expenditure.
Vote on Account
• Generally voting on appropriation Bill and Finance Bill goes beyond the start of the current financial year. Vote on Account empowers the Lok Sabha to make any grant in advance for a part of any financial year, pending the completion of budgetary process-normally for 2 months.
Vote-of Credit
• On account of national emergency the govt. may require funds to meet unexpected demands for which it may not be possible to file detailed estimates. In such cases house might grant lumpsum money without details through a vote of credit.
GUILLOTINE
Certain Demands for Grants' of various ministries are accepted by the Lok Sabha without any discussion on this. This is known as Guillotine.
This is basically done due to paucity of time.
However, questions were raised over this provision for this could lead to lesser control of the Legislature over the Executive. To overcome this, the Parliament in 1993 passed a law by which 17 Departmental related Parliamentary Committees (Standing Permanent Committees) were constituted. Thus from the Budget session of 1993 onwards, the departmentally related Committee System has been introduced.
Each committee consists of 45 members - 30 from Lok Sabha and15 from Rajya Sabha - and works for one year. Each committee has a chairperson. Of the 17 chairpersons, 11 are appointed by the Speaker of the Lok Sabha while the Chairman of the Rajya Sabha appoints there maining six chairpersons.
The functions of each committee are basically to scrutinize the 'Demands for Grants' of various Ministries/Departments and report to the House within one month without any extension. Their Reports are recommendatory in nature and are not binding on the House.
Cut Motions :These are a part of the budgetary process which seek to reduce the amount of grants. These are moved in the Lok Sabha only. They are classified into 3 categories:
i. Policy Cut. A policy cut motion implies that, the mover disapproves of the policy underlying the demand. Its form of expression is "that the amount of the demand be reduced by Re 1".
ii. Economy Cut. This means reduction in the amount of the expenditure. It clearly states the amount to be reduced and its form of expression is "that the amount of the demand be reduced by Rs... (a specified amount)."
iii)Token Cut. It is introduced where the object of the motion is to ventilate a specific grievance within the sphere of responsibility of the Government of India. Its form of expression is "that the amount of the demand be reduced by Rupees 100".
Charged Expenditure
The following expenditure shall be expenditure charged on the Consolidated Fund of India—
a) the emoluments and allowances of the President and other expenditure relating to his office;
b) the salaries and allowances of the Chairman and the Deputy Chairman of the Council of States and the Speaker and the Deputy Speaker of the House of the People;
c) debt charges for which the Government of India is liable including interest. Sinking fund charges and redemption charges, and other expenditure relating to the raising of loans and the service and redemption of debt;
d) i) the salaries, allowances and pensions payable to or in respect of Judges of the Supreme Court,
ii) the pensions payable to or in respect of Judges of the Federal Court,
iii) the pensions payable to or in respect of Judges of any High Court which exercises jurisdiction in relation to any area included in the territory of India or which at any time before the commencement of this Constitution exercised jurisdiction in relation to any area included in a Governor's Province of the Dominion of India;
e) the salary, allowances and pension payable to or in respect of the Comptroller and Auditor-General of India;
f) any sums required to satisfy any judgement, decree or award of any Court or arbitral tribunal;
g) any other expenditure declared by this Constitution or by Parliament by law to be so charged.
Art 113. Procedure in Parliament with respect to estimates
• So much of the estimates as relates to expenditure charged upon the Consolidated Fund of India shall not be submitted to the vote of Parliament, but nothing in this clause shall be construed as preventing the discussion in either House of Parliament of any of those estimates.
• So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the House of the People and, the House of the People shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.
• No demand for a grant shall be made except on the recommendations of the President.
CONSOLIDATED FUND OF INDIA
Art. 266. Consolidated Funds and Public Accounts of India and of the States
1. Subject to the provisions of Article 267 and to the provision;, of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to State, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans
shall form one consolidated fund to be entitled "the Consolidated Fund of India", and all revenues received by the Government of a State, all loans raised by the Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled "the Consolidated Fund of the State".
• CFI is the largest fund under the parliament
• No money can be deposited or withdrawn from CFI without prior approval of Parliament.
• Expenditure of Centre is met from CFI.
PUBLIC ACCOUNTS OF INDIA
Art. 266(2) All other public money received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be.
• This is not the money of Government of India. It can only use it.
Art 267. Contingency Fund
CONTINGENCY FUND
1. Parliament may by law establish a Contingency Fund in the nature of an imprest to be entitled "the Contingency Fund of India" into which shall be paid from time to time such sums as may be determined by such law, and the said fund shall be placed at the disposal of the President to enable advances to be made by him out of such fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by Parliament by law under Article 115 or Article 116.
What are its need?
PARLIAMENTARY COMMITTEES
• In order to make parliamentary surveillance more effective and meaningful, the Parliament needs an agency of its own in which the whole House has confidence. It is composed of a small number of their members.
The workload of the House is enormous and it may not have the time to undertake detailed investigations of every matter at length.
• What is the constitutional position of committees ?
• Define Parliamentary Committee.
■ It is appointed or elected by the House or nominated by the Speaker/Chairman.Works under the direction of Speaker/Chairman.
■ Presents its report to the Speaker/Chairman.
■ Has a secretariat provided by the LS/RS Secretariat
The Committee System
Governments, in contemporary times have enormous welfare responsibilities. The quantity of legislation is increasing as also the complexity and technical character of the legislation. In addition, the parliament has the duty of reviewing the execution of the legislation. It is not possible for the Parliament to discharge all these functions, us it consists of 552 members in the Lok Sabha and 250 members in the Rajya Sabha (These are maximum possible strengths), and most are not expected to be conversant in legal and technical aspects of (governance. To make the function of legislation and review relatively simple, there are Parliamentary committees. These committees act as .i liaison between the Parliament and the people on the one hand and between the government and the people on the other.
The Constitution of India does not make any specific provision in regard to Parliamentary Committees, but mention of committees is surely found in some of the articles, e.g. Article 88 and 105.
Therefore, it is obvious that the framers of the Constitution took Parliamentary Committees for granted and left it to the House to make provisions for them under their Rules of Procedure. However, under the Rules of the Lok Sabha, not every committee consisting of members of Parliament is a Parliamentary Committee. A committee consisting of MPs may be called a Parliamentary Committee only if it fulfils the following criteria:
• If it is appointed or elected by the House or nominated by the Speaker/Chairman.
• Works under the direction of the presiding officer of the House.
• Presents its reports to the House or to the presiding officer of the House.
• If it has a Secretariat provided by the Lok Sabha/Rajya Sabha Secretariat.
There are, for example, Consultative Committees attached to various ministries and departments and consisting entirely of MPs, but are not called Parliamentary Committees since they do not fulfill the above mentioned criteria.
Parliamentary Committees can be classified into Standing Committees and Ad hoc Committees. Standing Committees are those which are elected by the House or nominated by the
Speaker/Chairman every year or from time to time and are permanent in nature.
Ad hoc Committees are those constituted by the House or by the Speaker/Chairman, to consider and report on specific matters and cease to exist as soon as their work on these matters is completed.
Types of Committees
1. Standing Committees
• Of permanent nature
• Can be categorised in terms of the nature of their functions.
1. Financial Committees
a) Public Accounts Committee
b) Estimates Committee
c) Committee on Public Undertakings
2. Departmentally related Standing Joint Committees
3. House Committees - Committees relating to the day-to-day business of the House.
4. Enquiry Committees, e.g. Committee on Petitions.
5. Scrutiny Committees, e.g. Committee on Government Assurances.
6. Service Committees, e.g. Library Committee, etc.
Ad hoc Committees
1. The Select or Joint Committees on Bills - Appointed to consider and report on particular Bills.
2. Joint Parliamentary Committees (JPC) etc. - to enquire into or report on a specific subject. Important JPCs have been constituted on matters like the salary, allowances and pension for members, the Bofors Gun Deal and Bank Securities Scam.
Most important committees, with their strength in brackets, are as follows:
Business and Advisory committee (15) Estimates Committee (30) Committee on Public Accounts (22), Committee on Petitions (15), Committee on the welfare of Schedule Castes and Scheduled Tribes (30).
Members of the Rajya Sabha are also given representation, usually about one-third, except in the Estimates Committee. Members of the committees are generally elected or nominated for a term of not more than one year. As far as possible, all the parties in the Parliament are represented in these committees in proportion to their strength in Parliament so that they become a microcosm of the whole House of the Parliament. The chairmen of all the Committees of Parliament are appointed by the Speaker, except that of the Joint Committee on Salaries and Allowances of Members of Parliament, who is elected
by the committee itself. Wherever the Speaker is a member of a committee he is the ex-officio Chairman of that committee. The Chairman of the Committee on Public Accounts is appointed by the Speaker from amongst members of the Lok Sabha, and is generally an opposition member.
FINANCIAL COMMITTEES
• Financial Committees play a very important role as the watch dogs of the Parliament.
The Estimates Committee:
• Elected from members-Proportional Representation by way of Single Transferable Vote (PRSTV).
• Ministers cannot become a member
• Term 1 year
• Chairperson nominated by the Speaker
• Findings of the committee are in the form of recommendations only
• Consists of 30 members from Lok Sabha only .
Functions:
• Makes a detailed examination of the annual budget estimates in order to suggest alternative policies for bringing efficiency and economy in administration
• Examine whether the money is well laid out within the limits of the policy implied in estimates
• Suggests the form in which estimates shall be presented to the | Parliament.
• It is the duty of the estimates committee to point out the defects in a particular policy and bring to the notice of the Parliament.
Public Accounts Committee
• Oldest financial Committee (PAC)
• PRSTV
• 1 year term
• Minister not a member
• Chairperson appointed by the Speaker
• 22 members (15 LS + 7 RS)
• As a matter of practice-chairperson from opposition
• PAC is sometimes described as twin sister of Estimates Committee.
Functions:
• PAC ascertains whether the money has been spend as authorised by the Parliament and for the purpose for which it was granted.
• Committee also brings out any evidence of waste, corruption, inefficiency or operational deficiency in the conduct of the nation's financial affairs.
• The basic material from which the committee draws its subjects for examination are the audit report of the CAG.
• Committee can point out irregularities only after they have taken place and the damage has been done.
The Committee on Public Undertakings
• PRSTV
• 1 year term
• Chairperson appointed by the Speaker
• Minister not a member
• 22 member (15 LS + 7 RS)
• Need: Several corporations and government companies commonly called 'Public Undertakings' involve large sums of money. The money invested in them are appropriated from the CFI
Functions:
• Examine the reports and accounts of the public undertakings specified in the Rules of Procedure + Report of CAG
• Examine whether the affairs of the Public Undertakings are being managed in accordance with sound business principles and prudent commercial practices.
Committee on Welfare of SC &ST
• Constitution of India provides several safeguards for the SCs and STs.
• PRSTV
• 30 members (20 LS+ 10 RS) Functions:
• Consider the report of commissioner of SC/ST and report to the Parliament as to the measures taken or to be taken by the Govt.
• Committee examines and reports on all matters pertaining to the welfare of the SC & ST including their representation in different services, working of their welfare programmes etc. It also ensures effective implementations of the constitutional safeguards for these backward communities.
DEPARTMENTALLY RELATED STANDING COMMITTEE
In 1993, Parliament set up 17 Standing Committee, which are departmentally related with essentially financial functions, though H has other functions such as considering long term national policies in-depth examination of the Bills of the respective Ministries etc. The Standing Committee were set up on the recommendations of the Rules Committee of the Lok Sabha and the Rajya Sabha, to assist the Parliament in debating the budget more effectively. The main aim is to secure more accountability of the Executive to the Legislature.
In 2004, seven more committees were set up increasing thru number to 24.
Of the 24 committees, 16 committees come under the jurisdiction of Lok Sabha and the rest under Rajya Sabha.
Each committee shall have approximately 31 members-21 from the Lok Sabha and 10 from the Rajya Sabha. The Speaker nominates the Chairman and the term of the members of the committees is one year A Minister cannot be the chairman of the committee that covers under its jurisdiction, the ministry to which the Minister concerned belong. Larger ministries may have more than one committee and smaller ministries may be bunched under one committee. Representation of the political parties in the committees is according to their strength in the Parliament. Six Committees have chairmen from the Rajya Sabha and the rest eleven are headed by members of the Lok Sabha. The functions of each of the standing committees shall be .
• to scrutinise the Demands for Grants and Bills of the concerned Ministries/Departments.
• to study and annual reports of the ministries and special policy matters referred to it by the Speaker of Lok Sabha or the Chairman of Rajya Sabha.
The committee, however, do not consider day-to-day matters.
The reports submitted by the Committee are the basis for parliamentary discussion and the value of the reports is only informative and advisory. The purpose of the committees is to assist the Parliament in discussing the budget thoroughly. Of late, much time of the Parliament is spent on so many other issues that many of the Demands for Grants of various ministries are not discussed before passing. That is, they are being guillotined. Guillotine dilutes the parliamentary control over governmental finances. Though the Demands for Grants of various Ministries continue to be guillotined
even now, a higher degree of parliamentary control over the financial system is institutionalized through these Standing Committees.
TYPES OF MAJORITY
There are certain types of majority followed in the Parliament to pass specific Bill or Motions.
1. Simple majority: Also called 'working majority', this is the majority more than fifty per cent of the members of the legislature present and voting, excluding the members abstaining. For example, if the total number of Members of Parliament present and voting is 500, a strength of 251 or more will be a simple majority. A Confidence, No-confidence or Censure Motion, Money. Financial or Ordinary Bill. Budget, ratification of an amendment of Parliament by the state legislature(s) etc. are passed by simple majority.
2. Effective majority: It is the majority of more than fifty per cent of the total strength of the House, which includes even those members who are abstaining. For example, in case of the Rajya Sabha which has the total strength of 245 members, 123 and above shall be an absolute majority.
3. Effective majority: This is more than fifty per cent of the effective strength of the House (vacancies are not taken into account). In other words, the effective strength of the House is total strength of the House minus the number of vacancies. In case of Rajya Sabha(total strength 245), if there are 15 vacancies, 230 shall be tin! effective strength and more than 50 % of this (i.e. 230)-116 or more-is called effective majority. Removal of the Vice-President of India (resolution for this can be introduced in the Rajya Sabha only) inquires 'effective majority' for passage of such a resolution to this effect (Art. 67 (b)).
4. Special majority: All types of majorities other than the above three are called special majorities.
5. Special majority under Art. 249. This is basically a majority of 2/3rd of the members of the House present and voting excluding the number of members abstaining. For example, in Rajya Sabha (total strength 245) if only 200 members are present and voting, only 2/3rd of this (200) shall be special majority under Art. 249 (i.e. for creation of one or more All-India Services). To make it more clear, if 100 members of the House are present and 10 of them abstain from voting then in this case only 2/3rd of this (100-10=90) i.e. 60 will be special majority.
6. Special majority under Art. 61 (Impeachment of the President of India). A resolution under Art. 61 must be passed by not less than two-thirds of the total strength of the House, including the number of vacancies. For example, a resolution for impeachment of the President of India requires the support of 2/3rd of total strength of the Upper House 245, two third of which shall be 164 or more.
7. Special majority under Art. 368. (Constitutional Amendment)- A bill seeking Constitutional Amendment requires its passage by 2/3rd of the members of the House present and voting. There is no provision of joint sitting for this. Both the Houses must pass it separately. Also, this majority should be absolute majority of the House.
Constitution Amendment Bills, Resolutions for removal of the judges of the Supreme Court or High Courts, Chief Election Commissioner, Comptroller and Auditor General, etc. are passed by special majority under Art. 368.
However, whenever the Constitution does not specially mention the type of majority required, it means simple majority.
LEGISLATIVE CONTROL OVER FINANCIAL SYSTEM
In financial matters Parliament has effective control over the Executive. The financial system consists of two branches:
• Revenue;and
• Expenditure
1. As regards revenue, Article 265 of the Constitution expressly mentions that "no tax shall be levied or collected except by authority of law". Therefore, the Executive cannot impose any tax within legislative sanction. If, however, any tax is levied without legislate > authority, the aggrieved person can obtain his relief from the court', of law.
2. As regards expenditure, Article 266(3) of the Constitution expressly mentions that no money out of the Consolidated Fund of India or Consolidated Fund of a State shall be appropriated except in accordance with law. This law means an Act of Appropriation must be passed to draw money out of the Consolidated Fund of India in conformity with Article 114. No money, therefore, whether votable or non-votable, can be issued out of the CFI unless the expenditure is authorised by an Appropriation Act. It follows, therefore, that the Executive cannot spend the public revenue without Parliamentary sanction.
Moreover, Parliament's control over the expenditure is never complete unless it is able to ensure due economy, propriety and wisdom in the volume of expenditure. In this task, it is assisted by three financial committees of Parliament:
1. Estimates Committee
2. Public Accounts Committee ( PAC)
3. Committee on Public Undertakings
LEGISLATIVE CONTROL OVER THE EXECUTIVE
The cardinal principle of the Parliamentary system is the responsibility of the executive to the legislature. The various means through which the legislature in a Parliamentary form of government enforces responsibility are:
1. No-confidence Motion: The Executive, i.e. the Council of Ministers, holds office only as long as it enjoys the confidence of the Parliament and especially the Lok Sabha. If the Lok Sabha passes a no- confidence motion successfully, the Council of Ministers is bound to resign.
Provision for 'no-confidence motion' exists in the Constitution itself. It springs from Art 75 (3), where the Constitution says that "the Council of Ministers shall be collectively responsible to the House of the People." Therefore, Council of Ministers stays as long as it enjoys the confidence of the House (Lok Sabha) No-confidence Motion, also called censure motion provides an occasion when the entire policy of the Government, or a part of it come under fire. This provision, however, remained practically a dead letter until 1962. For the first time in Indian Parliamentary history, a 'no-confidence motion' was discussed and debated in Lok Sabha in its Monsoon Session in 1963.
2. Impeachment of the President: In the case of the formal Head of the Executive, the President, Parliament is given the power to impeach the President if he violates the Constitution.
3. Budget Discussion: Budget is an important tool of Parliamentary control over Executive. Since the introduction of the 'Budget on Account', Parliament now has greater opportunity of discussion on the budget proposals. The members of Parliament have thefollowing opportunities of criticizing the administration:
a) General Discussion: After the presentation of the budget, general discussion takes place. At this occasion the discussion relates to the budget as a whole or any question of principle involved therein.
b) Voting on grants provides the second opportunity. Discussion at this stage is confined to each head of the demand, and if cut motions are moved, to the specific points raised therein.
c) Discussion on the Finance Bill provides boundless opportunity to discuss the entire administration. During this, various cut motions can be moved against budgetary proposals: token cut, policy cut, economy cut, etc. If a cut motion is moved against the budgetary proposals successfully in the Parliament, the Council of Ministers should resign.
4. Question-Hour: In the Parliamentary system the ministers are the members of the legislature. They attend its session and are present to reply to the questions put by the members of the legislature. In every Parliamentary system there is the practice of setting apart an hour of Parliament's meeting time for
questions which is called 'Question-Hour'. During this, the members may ask questions regarding any act or omission of administrative authorities, from the highest to the lowest. The Ministers concerned prepare their answers and reply to the questions on the floor of the House. Supplementary questions may also be put.
Questions asked by the MPs are of three types: Starred, un-starred questions and short notice.
The starred questions are to be answered by the Minister concerned orally. For the unstarred questions the Ministers get sufficient time to prepare a written answer and read it out on the floor of the House after few days. Short notice questions are asked after giving notice of 10 days and requires oral answer.
5. Half-an-hour, Short Discussions and Calling Attention Motion: The Half-an-hour discussion follows the Question-Hour. During this short discussion, the House may extract more information on a matter of public policy from the government.
The 'business rule1 of the Indian Parliament also provide for Short Discussions on a matter of urgent public importance for a short time not exceeding two and a half hours. The discussion can take place only if the speaker admits the notice given by a member on grounds of urgency and public importance and the Government agrees to find time.
There is, in the Indian Parliament, a further device of drawing Government's attention to a serious problem in its policy administration. This is known as a "Calling Attention" notice of the Government. Under this provision a member may raise a matter of grave urgency immediately. If it is admitted by the Speaker, the Government has to give an answer immediately.
6. Zero-Hour Discussion: Zero Hour' is India's innovation in the field of Parliamentary practices. It has emerged, since 1962, as a powerful tool of control over the executive. It is invoked in the House immediately after Question-Hour which begins at 11:00 a.m. and is over by 12:00 a.m. Therefore, as the following question hour starts at 12:00 it is called the 'Zero Hour'. It is at this hour that the members of Parliament can raise, subject to the permission of the presiding officer, matters which in their eyes are of public important even if not listed in the day's order paper. 'Zero Hour' discussion has the virtue of surprise. Being on a specific topic, it is usually directed against individual ministers. Zero Hour discussions have highlighted matters like strikes, hunger-strikes, natural calamities, communal riots, accidents, etc.
7. Adjournment Motion: The device of adjournment motion is a tool of day-to-day control, and may be utilized for raising a discussion in the House on any specific question of urgent nature and of public importance. If the presiding officer allows such a motion, an immediate debate takes place on the matter raised, thus suspending the normal business of the House. An adjournment debate is followed by voting. If the Government faces a defeat in the voting it has to resign.
Apart from all these devices of legislative control over Executive there are a number of legislative committees which go through various audit reports and bring the executive lapses before the House.
8. Censure Motion: This motion, seeking disapproval of the policy of the ruling government, can be introduced in the Lok Sabha only by the opposition parties under the Rule 184 of the Rules and Procedures of the Lok Sabha. If a censure motion is passed in the House, the Council of Ministers is bound to seek the confidence of the Lok Sabha as early as possible.
Further, if a Money Bill or the Vote of Thanks to the President is defeated, this also amounts to the censure of the Government policy and the government needs to seek the confidence of the Lok Sabha.
PRIVATE MEMBER BILL
• The concept of private member's bill is central to a deliberative democracy."
• Discussion on a private member's bill rarely gets disrupted as it did on July 22, 2016 when the private member's bill concerning special status for Andhra Pradesh was caught up in a pandemonium.
• Out of 14 private members' bills enacted so far since the commencement of Parliament in 1952, five were introduced in the Rajya Sabha and became law of the land. These are: The Ancient and Historical Monuments and Archaeological Sites and Remains(Declaration of National Importance, Second Amendment) Bill,1954; the Hindu Marriage (Amendment)Bill, 1956; the Indian Marine Insurance Bill, 1959; the Orphanages and other Charitable Homes (Supervision and Control) Bill, 1959; and the Indian Penal Code (Amendment) Bill, 1963. The importance of private members legislations cannot be understood just by their sheer quantity or in terms of the number of such legislations becoming acts of Parliament. The real value can be measured from the ripples they cause and their impact on the government and the public at large.
PARLIAMENTARY TERMINOLOGY
The Indian Constitution has conferred upon the Parliament the power to regulate its own business. But the procedure with regard to certain maters like the voting of demands or the passing of bills has to some extent has enunciated in the Constitution itself. The major function of the Parliament is to enact laws on all matters pertaining to the Union Government. Another of its functions is to debate public issues and to the attention of the Government as well as that of the public to matters of national importance.
Since the Parliament on account of its being given a wide range of functions by the Constitution has to enact a multitude of as within the short time at its disposal the Parliament has adopted certain procedures in order to perform its role or to carry out its mandate effectively and purposefully.
Difference between Rajyasabha and Lok sabha
Lok Sabha
Rajya sabha
1. Lok Sabha consists of representatives of the people.
2. Lok Sabha represents popular sovereignty.
3. Lok Sabha has a fixed tenure.
4. Money bills shall at first be introduced in the Lok Sabha.
5. The Union council of ministers headed by the Prime Minister is responsible to the Lok Sabha only.
6. The members of Lok Sabha exercise their control over ministry through questions, supplementary questions and by introducing
non confidence motions.
1. Rajya Sabha gives representation to the states.
2. Rajya Sabha represently the interests of states in our federal system.
3. Rajya Sabha is a permanent body.
4. The Rajya Sabha has to accept the money bills within a period of 14 days of ten they are accepted by Lok Sabha.
5. Rajya Sabha has no such powers.
6. Rajya Sabha no such control over ministries.
CHAPTER- 14
The Judiciary
While adopting a federal system, the constitution of India has not provided for a double system of courts as in the United States. Under our constitution there is a single integrates system of courts for the union as well as the States. Which administer both union and state laws. And at the head of the entire system stands the supreme court of India, Below the Supreme court stand the High Courts of the different States and under each High Court there is a hierarchy of other courts which are referred to in the Constitution as subordinate courts. i.e., courts subordinate to and under the control of the High Court (Article 233-237)
· In India single and unified judiciary
· No separate judiciary for the states.
· Judiciary - 3 tier
· National - Supreme Court
· State level - High Courts
· District level - Subordinate Courts
Art 124. Establishment and constitution of Supreme Court
1. There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than 'seven" judges.
2. Now "thirty", vide the Supreme Court (Number of Judges) Amendment Act, 2008.
Qualifications
3. A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and:
a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
c) is, in the opinion of the President, a distinguished jurist.
• Can hold office till 65 years of age
Why Supreme Court Needed?
• To maintain the Supremacy of the Constitution there must be an impartial and independent authority to decide dispute between Centre and States.
• Supreme Court is also the guardian of the Fundamental Rights of the people.
• It is also the highest and final interpreter of the general law of the country.
• It is the highest court of appeal in civil and criminal matters.
Safeguards of Impartiality
• Judges of Supreme Court cannot hold any office of profit after the retirement but they can be included in committees.
• They cannot practice after the retirement.
• Judges cannot be removed by President except in accordance with the procedure set up in the Constitution.
• Salaries and expenses are drawn from the charged expenditure of CFI
• Salaries cannot be altered to his disadvantage except during Financial emergency.
APPOINTMENT OF JUDGES
Art. 124 (2): Every Judge of the Supreme Court shall be appointed by the Presidentby warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years;
• S.P. Gupta vs President of India 1980.
• Supreme Court held that the consultation with CJI is not binding on the President. But the court held that, consultation should be effective.
Supreme Court Advocates-on-Record Association vs Union of India 1993
• Court stated that the view of the CJI is binding on the President.
• Court also held that while advising the President CJI is expected to consult two of the senior most judges.
• CJI is the sole authority to initiate the process of appointment of Judges of the Supreme Court.
• In case of conflict of opinion between CJI and President, the view expressed by CJI will have primacy.
following are some of those guidelines:
• The Chief Justice of India should consult with four seniormost Judges of the Supreme Court regarding the appointment of new Judges.
• The views expressed by the four judges should be conveyed in writing to the Government.
• If the Government provides material evidence for non-appointment of a judge recommended for appointment by the CJI then the Chief Justice should consult with other Judges.
• If the recommendation of the CJI are made without complying with the norms and requirements of consultative process, then such recommendations are not binding upon the Government of India.
• Thus, the decision of the Supreme Court has struck a golden rule. It has made the consultative process more democratic and transparent.
After all these discussions, we may sum up the crux in the following three points:
• In Judicial appointments it is obligatory on the President to take into account the opinion of the CJI.
• The opinion of the CJI is binding on the Government.
• The opinion of the CJI must be formed after due consultation with a collegium of at least four senior most Judges of the Supreme Court.
The National Judicial Appointments Commission Bill, 2014, and the 121st Constitution Amendment Bill
• The government withdrew the UPA's Bill on judicial appointments in the Rajya Sabha and introduced a fresh one in the Lok Sabha on 13 August 2014.
• The National Judicial Appointments Commission Bill, 2014, and the 121st Constitution Amendment Bill (Insertion of new articles 124A, 124B and 124C) were introduced in the Lok Sabha by Law Minister Ravi Shankar Prasad.
• The Judicial Appointments Commission Bill, 2014 passed in the Lok Sabha on same day and by Rajya Sabha on 17 August 2014,provides for setting up of a six-member National Judicial Commission to select and recommend judges to the High Courts and Supreme Court.
• The Constitution (121st Amendment) Bill, 2014 and the 'National Judicial Appointments Commission Bill' seek to give constitutional status to the NJC, comprising the Chief Justice of India
(Chairperson); two other senior-most judges of the Supreme Court; the Union Law Minister and two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha. One of the eminent persons shall be nominated from amongst the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or women.
• The object of constituting the Commission is to enable participant in of judiciary, executive and eminent persons and will ensure greater transparency, accountability and objectivity in the appointment of judges to higher judiciary.
SC Bench strikes down NJAC Act as 'unconstitutional and void'
• On OCTOBER 17, 2015 the Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99thConstitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
• "The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance," Justice J.S. Khehar, the presiding judge on the five judge Constitution Bench, explained in his individual judgment. The Bench in a majority of 4:1 rejected the NJAC Act and tint Constitutional Amendment as "unconstitutional and void." It held that the collegium system, as it existed before the NJAC, would again become "operative."
• But interestingly, the Bench admitted that all is not well even with the; collegium system of "judges appointing judges", and that the time; is ripe to improve the 21-year-old system of judicial appointments.
Highlights
• Post-script: With this verdict, the Collegium system as it existed before the NJAC Act was passed, will become operative again.
• Faultiness: The SC Bench admitted that not everything was okay with the Collegium system of "judges appointing judges", and it was time to improve upon the 21-year-old-system of judicial appointments. What the Amendment was about: After receiving Presidential assent on Dec. 31, 2014, the collegium system of appointing judges to the SC and high courts was replaced by a new body called the National Judicial Appointments Commission.
Appointment of Acting CJI
Art. 126: Appointment of acting Chief Justice
• When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
Art. 127: Appointment of adhoc Judges
• If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an adhoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.
REMOVAL OF SUPREME COURT JUDGES
Art. 124(4): A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an a address by each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour of incapacity-
• Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour MI incapacity of a Judge under clause (4).
Judges Enquiry Act 1968
• Under this Act, a motion seeking the removal of a Judge can be I deferred before either House of the Parliament.
• If it is to be introduced in the Lok Sabha, it should be signed in by not less than WO members of the Lok Sabha-
• If it is to be introduced in the Rajya Sabha, the motion should be signed in by not less than 50 members-
• The motion can be moved only after a prior notice of 14 days to that Judge.
• After being properly introduced, the presiding officer of that House appoints a three-member Judicial Committee to inquire into the misbehaviour or incapacity of the accused Judge.
• The head of the Judicial Committee shall be a serving Judge of the Supreme Court.
• Of the other two members, one should be a serving member of the Supreme Court or a High Court and another one may be an eminent jurist.
• The Judge in question has the right to defend himself or through his counsel before the Judicial Committee.
• The Committee submits its report to the presiding officer of the House in which the motion has been introduced.
• The Parliament may or may not act upon the report of the Judicial Committee.
• If the Judicial Committee fail to establish proof of misbehaviour or incapacity, the Parliament cannot take up the motion.
• If the motion is passed by the originating House with the required majority, it moves to the other House which should also pass the motion with the same majority.
• After that it goes for the assent of the President in the same session of the Parliament. If the address has been passed, then the President removes the Judge in question from the House.
Justice Ramaswamy Case
THE JURISDICTIONS OF SUPREME COURT
The Constitution confers 5 heads of jurisdictions to Supreme Court
1. Original Jurisdiction
Art. 131. Original jurisdiction of the Supreme Court
• Subject to the provisions of this Constitution, the Supreme Courts hall, to the exclusion of any other court, have original jurisdiction in any dispute-
a) between the Government of India and one or more States,
b) between the Government of India and any State or States one side and one or more other States on the other; or
c) between two or more States.
• If and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depend:
• Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed
before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.
2. Writ Jurisdiction
• Article 32 imposes duty on the Supreme Court to enforce the Fundamental Rights.
• Under this Article, every individual has a right to move the Supreme Court directly if there has been any infringement on his Fundamental Rights.
• The Writ Jurisdiction sometimes is referred to as the Original Jurisdiction of the Supreme Court, but in the strict sense, Original Jurisdiction relates to the federal character of the Constitution.
3. Appellate Jurisdiction
The Appellate Jurisdiction of the Supreme Court is three fold:
a) Constitutional: In the Constitutional matters, an appeal lies to the Supreme Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
• If the High Court refuses to give the certificate, the Supreme Court may grant special leave for appeal if it is satisfied that the case does involve such a question.
b) Civil: In civil cases, an appeal lies to the Supreme Court if a High Court certifies that the value of the subject matter of the dispute is not less than Rs 20.000 or that the case is fit for appeal to the Supreme Court.
• The appellate jurisdiction of the Court in civil cases can been larged if the Parliament passes a law to that effect,
C) Criminal: In the criminal cases, an appeal lies to the Supreme Court if the High Court
i) has on appeal, reversed the order of acquittal of an accused and sentenced him to death; or
ii) has withdrawn for trial before itself any case from any subordinate and has in such trial convicted the accused and sentenced him to death; or
iii) certifies that the case is fit for appeal to the Supreme Court.
• The Appellate Jurisdiction of the Supreme Court in criminal matters can be extended by the Parliament, subject to such conditions and limitations as may be specified therein.
• The Supreme Court under Article 736 enjoys the power of granting special leave to appeal from any judgement, decree, order or sentence in any case or matter passed by any Court or tribunal except court martials.
4. Advisory Jurisdiction
• One of the salient features of the Supreme Court of India is its consultative role (Art, 143).
• The President can refer to the Court either a question of law or a question of fact, provided that it is of public importance.
• However it is not compulsory for the Court to give its advice.
• The President is empowered to refer to the Supreme Court for its opinion (under Art 138), disputes arising out of any treaty, agreement etc., which had been entered into or executed before the commencement of the Constitution.
• In such cases, it is obligatory for the Courts, under the Indian (institution, to give its opinion to the President.
5. Revisory Jurisdiction
• The Supreme Court under Article 137 is empowered to review any judgement or order made by it with a view to remove any mistake or error that might have crept in the judgement or order.
• This means that even though all the judgements and orders passed by the Supreme Court are binding on all the Courts of India, they are not binding on the Supreme Court.
Supreme Court to be a court of record.
Art. 129. The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
Seat of Supreme Court.
Art 130. The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.
Law declared by Supreme Court to be binding on all courts.
Art. 141. The law declared by the Supreme Court shall be binding on all courts within the territory of India.
Civil and judicial authorities to act in aid of the Supreme Court.
Art. 144. All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
Supreme Court and Constitution
· Under the Constitution, the Supreme Court performs multiple roles viz., as custodian of the Constitution, guarantor of the Fundamental Rights, and final interpreter of the Constitution. The Supreme Court has been described as a continuous Constitutional convention, as it continues to expand the scope of the Constitution in conformity with the growing demands of the Indian society.
· It is primarily through the power of the judicial review that the Court have been helping in the growth of the Constitution. The most fundamental contribution in this regard is that it emphasises that, in India it is the Constitution which is supreme. Whenever there was a parliamentary threat to the constitution the Court succeeded in protecting it through various decisions, culminating in the doctrine of 'Basic Structure' as propounded in the Kesavananda Bharati case.
· By providing a liberal interpretation of the Constitution, especially Arts. 19 and 21, it has expanded the scope of the Fundamental Rights by including the rights to education, privacy, health of workers, and concept of the due process of law under Part III of the Constitution. It has also succeeded in maintaining a harmony between two important parts of the Constitution- Part III and Part IV - as is clear in the Minerva Mills case decision. It has also successfully expanded the scope of judicial review to crucial Articles viz., 352 and 356.
· It has also taken upon itself the role of a crusader aimed at extending a corruption-free administration and live able environment for all the people of India - through a new phenomenon known as 'judicial activism'. It has also successfully incorporated the concept of Public Interest Litigation (PIL) as part of Indian jurisprudence to heighten the responsibility of the Executive.
· Thus it has also acted as a source of social and economic transformation in the country.
CHAPTER 15
The State Executive
The Governor is the Constitutional head of the state. Just like the President of India the Governor of a state is a dejure (constitutional or nominal or titular or Figure) head. Generally there is a Governor for each state but the same person can act as the Governor of more than one state. Article 154(1) provides. “The executive power of the State shall be vested in Governor and shall be exercised by him either, directly or through officers subordinate to him in accordance with this Constitution”.
The Governor
Art. 153. Governors of State
• There shall be a Governor for each State: Provided that nothing in this Article shall prevent the appointment of the same person as Governor for two or more States.
Art. 154. Executive power of State
• The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.
Appointment and Term of Office Art. 155. Appointment of Governor
• The Governor of a State shall be appointed by the President by warrant under his hand and seal.
Art. 156. Term of office of Governor
1. The Governor shall hold office during the pleasure of the President.
2. The Governor may, by writing under his hand addressed to the President, resign his office.
3. Subject to the foregoing provisions of this Article, a Governor shall hold office for a term of the five years from the date on which he enters upon his office.
• Provided that Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
Qualification
Art. 157. Qualifications for appointment as Governor
• No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-five years.
Conditions of Governor's Office (Art 158)
• The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.
• The Governor shall not hold any other office of profit.
• In Hargovind Vs Raghukul case the Supreme Court held that the office of the Governor was not an office of profit under the Government.
• The Governor shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
• Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.
• The emoluments and allowances of the Governor shall not be diminished during his term of office.
Tenure:
· The Governor holds office during the pleasure of the President.
· The Governor is appointed for a term of five years.
· He can vacate his office earlier by writing to the President.
· The President can also remove him before the expiry of his term of five years. If the office of the Governor falls vacant due to his death, resignation or removal, the chief Justice of the High Court acts as the Governor till a new incumbent is appointed.
Salary:
• The salary and other allowances are decided by the parliament.
Removal:
• The Governor may be removed by the President at any time.
• The Governor has no fixed term of office.
Resignation:
• The Governor submits the resignation to the President of India.
Transfer:
• The President may transfer a Governor from one state to the other.
Reappointment:
• The President may reappoint a person as the Governor of the same state or transfer to the other state.
Privileges and Immunites:
· He is not answerable before any court for the exercise of performance of the powers and duties of his office or any act done in the exercise thereof.
· No criminal proceedings can be launched against the Governor during his term of office nor can the court issue any warrant of imprisonment of the Governor during his term of office.
· Legal proceedings can be instituted against the Governor during his term of office but at least two months notice has to be served on him regarding the details of the case before instituting such proceedings.
POWERS AND FUNCTIONS OF THE GOVERNOR:
The Governor of a State enjoys powers similar to that of the president, except that the President enjoys diplomatic, military or emergency powers. His powers can be studied under the following categories:
1) EXECUTIVE POWERS:
· The Governor of a state appoints the Chief Minister and other Ministers, Advocate General, State election commissioner, the Chairman and members of the state public service commission.
· The Governor also enjoys the power to dismiss the ministers because they hold office during pleasure. But actually the ministers stay in office as long as they enjoy the support of a majority of the members of the state legislature.
· The Governor has a right to be kept informed about the decisions taken by the council of Ministers. He can seek any information relating to administration of the state from the chief Minister and can ask him to refer any matter on which a decision has been taken by a minister form consideration to the council of Ministers.
· The Governor also acts as the representative of the centre and keeps the centre informed about the developments in the state.
· Recommends for the President’s rule in the state.
· Appoints Vice Chancellors of various universities in the state.
· Himself acts as the Chancellor of Universities in the state.
2) LEGISLATIVE POWERS:
· The Governor is a part of State Legislature.
· (State Legislature means the assembly, the Legislative Council and the Governor if it is bicameral legislature. In case of unicameral legislature it is the State legislative assembly and the Governor
).
· The Governor summons the State Legislature. (Assembly and Legislative Council).
· Summon means beginning of a session.
· The Governor Prorogues the State Legislature.
· Prorogue means ending of a session.
· The Governor dissolves the State Legislative Assembly.
· The Legislative Council is a permanent house it cannot be dissolved. But it can be abolished.
· The Governor addresses the state legislature at the beginning of the first session each year.
· Here the meaning of year is calendar year and not financial year. This is generally the budget session that starts in the month of February.
· The Governor also addresses the state legislature at the beginning of the first session after each general election
· The general election means the assembly elections in which the people take part in voting.
· The Governor can send messages to the houses of the state legislatures with respect to a bill pending in the legislature or otherwise.
· In case there is a vacancy in the office of both Speaker and Deputy Speaker the Governor can appoint any member of the State Legislative Assembly to preside over its meeting.
· In case there is a vacancy in the office of both Chairman and Deputy Chairman the Governor can appoint any member of the State Legislative Council to preside over its meeting.
· The Governor nominates one Anglo-Indian to the state legislative Assembly.
·
The Governor nominates 1/6th of the members to the state legislative Council from amongst the persons having special knowledge or practical experience in
· The Governor decides the question of disqualification of the members of the State Legislature in consultation with the Election Commission. (Central Election Commission not State Election Commission).
· A bill becomes a law with the assent of the Governor.
· When a bill is sent to the Governor, then the Governor can
· Give assent to the bill
OR
· Withhold the assent to the bill.
OR
· If the bill is not a money bill the Governor can return the bill for reconsideration. If the bill is passed by the state legislature again with or without amendments then the Governor has to give assent to the bill.
· Money bills cannot be sent back by the Governor for reconsideration.
OR
· The Governor may reserve the bill for the consideration of the President. This happens in case if the bill passed by the state legislature endangers the position of the state High Court
or
· if the bill is against the provisions of the Constitution or
· Opposed to the Directive Principles of State Policy or
· Against the larger interest of the country or
· Dealing with the compulsory acquisition of the property under Article 31A of the Indian Constitution.
· The Governor of a state can promulgate the ordinances when the state legislature is not in the session. (Article 213).
· Ordinance: This is a temporary law. This must be approved by the State legislature within six weeks from the date of reassembly of the state legislature.
· The Governor can also withdraw an ordinance anytime.
· The Governor lays the report of State Public Service Commission (SPSC),State Finance Commission (SFC), Comptroller and Auditor General (CAG), before the State Legislature (There is no separate office of CAG at the state level).
3. Financial Powers:
· The Governor has to ensure that the Annual Financial Statement in placed before the legislature.
· No ‘money bill’ can be introduced in the legislature without his prior recommendation.
· No demand for grants or proposal for taxation can be made except by the ministers acting in the name of the Governor.
· The Contingency Fund of the State is at the disposal of the Governor and he/she can make advances out of it to meet the unforeseen expenditure pending its authorization by the legislature.
· The Governor constitutes a State Finance Commission after every five years to review the financial position of the Panchayats and the Municipalities.
4. Judicial Powers:
· The Governor can grant Pardons, reprieves, respites and remissions of punishments or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
· The Governor cannot Pardon a death Sentence. (The President has the power of Pardon a death Sentence).
· The Governor cannot grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court martial. (The President of India enjoys this power).
· The Governor takes decisions with relation to the appointments, postings, promotions of the District Court judges in consultation with the state High Court.
5. Other Powers:
· He receives the reports of the Auditor General the state, Public Service Commission etc. and places them before the State Legislature.
· He also appoints the Vice-Chancellors of the Universities located in the State.
6. Discretionary Powers:
· In the exercise of the functions which the Governor is empowered to exercise in his discretion, he will not be required to act according to the advice of his ministers or even to seek such advice.
· Article 163: There shall be a Council of Ministers with the Chief Minister as the head to aid and advice the Governor in the exercise of his functions, except in so far as he is required to exercise his function in his discretion. (The Constitution has mentioned the discretionary powers to the Governor and not to the President)
· Again If, any question arises whether any matter which the Governor is required by the constitution to act in his discretion, the decision of the Governor shall be final, and the validity of anything done by the Governor shall not be called the question on the ground that he ought or ought not to have acted in is discretion.
· The Governor’s discretion may be of two types: (1) Constitutional discretion (2) hidden discretion / situational discretion.
A. Constitutional discretion.
· The Governor of Assam shall determine the amount payable by the State of Assam to the District Council, as royalty accruing from licences for mineral exploration.
· When the Governor is appointed as the administrator of an adjoining union territory.
· Recommendation for the imposition of the President’s rule (Article 356)
· Giving assent to a bill or with holding assent or return a bill or the consent of the President. (Article 200).
· In the event of a conflict between the Union and the State Government on a matter relating to their respective competence in the exercise of their executive authority.
· Seeking the advice of the President, before promulgating certain ordinances.
· In the capacity of Chancellor. Power to choose the Vice-Chancellor from among the names of the panel forwarded by the Cabinet.
· The Governors of Assam and Nagaland have discretionary powers in regard to the administration of tribals areas and for combating violent activities.
· Seeking of information regarding legislative and administration matters from the Chief Minister.
B. Situational Discretion:
The intention of the Constitution makers is that the Governor is the exercise of discretion in abnormal situations should preserve and protect the constitutions provisions and prevent any misuse of those provisions on technical grounds.
· In choosing a Chief Minister when no party in the State has got clear majority or an acknowledged leader.
· In the dismissal of the ministry, when it cannot prove the confidence of Legislative Assembly.
· In dissolution of the Legislative Assembly, if a Chief Minister has lost majority.
7. Special Responsibilities: In addition to these discretionary powers. These are certain functions which are to be exercised by the Governor on his own special responsibility – which practically means the same thing as in his discretion, because though in cases of special responsibility, he is to consult his council of Minsters, the final decision shall be in his individual judgement, which no court can question. They are:
· Assam – regarding the administration of Tribunal Ares.
· Bihar, M.P. and Orissa – a minister for Tribal welfare to be appointed.
· Nagaland – the connection with law and order in the context of tribal unrest.
· Manipur – Proper functioning of the Hill areas committee of the Legislature of the State.
· Sikkim – in connection with the peace and progress of the people of Sikkim.
· Maharashtra and Gujarat – Taking steps for the developments of certain areas like vidarbha and Marthwada, Sourashtra / Kutch.
· Karnataka – established of separate development board for H.K. region
· Andra Pradesh – With respect to law & order in state.
Power of Governor to grant pardons etc.
Art. 161: Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain cases
• The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
GOVERNOR VS PRESIDENT
President
Governor
1. The office of President is more of ceremonial and less of functional.
2. There is no explicit mentioning of discretionary power. It is to be inferred from the Constitution.
3. Other than all the discretionary powers of President
1. But Governor is ceremonial and functional.
2. The Constitution has explicitly conferred certain discretionary powers to the Governor.
3. Governor enjoys the following powers which is not there for President.
1. Art 163. Council of Ministers to aid and advise Governor There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
2. Art 163(2): If any question arises whether any matter is or is not a matter as respects which the Governor is by or under, this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in questions on the ground that he ought or ought not to have acted in his discretion.
3. Art 200: Governor can reserve a bill passed by the State Assembly for the consideration of President. Here Governor acts on his own discretion.
4. Art 356: Governor can invite President to take over the administration of a state, if he feels that
5. A Governor can exist without the aid and advise of a Council of Ministers (During Presidents Rule). But a President Cannot.
6. Governor has to send a fortnightly report to the President regarding the functioning of the state Government.
7. Certain governors have special responsibility especially about Tribal people etc. That means the power which exercises after consulting the Council of Ministers. But the view of Council of Ministers is not binding on him.
[
CHAPTER – 16
State Legislature
The State Legislature consists of the Governor, the Legislative Assembly and the Legislative Council. Presently in India only five states, viz., Bihar, Karnataka, Maharashtra, Jammu & Kashmir, and Uttar Pradesh have both Legislative Assembly and Legislative Council, whereas 23 States the have only one house i.e. the Legislative Assembly
UNICAMERAL SYSTEM:
· The State Legislative Assembly
· The Governor
BICAMERAL SYSTEM:
In any state if both the Assembly and the Legislative council are present it is called bicameral
system.
· The State Legislative Assembly
· The State Legislative Council And
· The Governor
· As of January 1, 2014 only 6 states are bicameral. They are
1. Andhra Pradesh
2. Bihar
3. Jammu and Kashmir
4. Karnataka
5. Maharashtra
6. Uttar Pradesh
HOW THE STATE LEGISLATIVE COUNCIL IS CREATED / ABOLISHED?
Art 169 Abolition or creation of Legislative Councils in States
• Not with standing anything in Article 168, Parliament may by law provide for the abolition of the Legislative Council of a State having such a Council or for the Creation of such a Council in a State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.
.
• Parliament should pass the motion with a simple majority.
• Even though this is an amendment of constitution.
• No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Art 368.
Composition of Legislative Assembly
Art 170 Composition of the Legislative Assemblies
Subject to the provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial Constituency in the State.
State Legislative Council .
As per the constitution, the number of members of the Legislative Council is not to exceed one- third of the total strength of the State Assembly. However, its strength should not be less than 40 either.
• The members of the Legislative Council are derived from various sections and streams of the society:
a) Not less than one-third to be elected by the Panchayat Municipalities, District Boards, etc.
b) Not less than one-third to be elected by the Legislative Assembly.
c) Not less than one-twelfth to be elected by the graduates of three years standing residing in the State.
d) Not less than one-twelfth to be elected by the persons having teaching experience of three years in educational institutions
e) The remainder one-sixth to be nominated by the Governor from among the distinguished persons of the society in the field of literature, science, arts, co-operative movement and soci.il service.
• Just like the Upper House at the Centre, the Legislative Council of a State is never dissolved. The members are elected for a term of 16 years and 1/3rd of its members retire every two years.
Qualifications for membership of State Legislature
Art. 173. Qualification for membership of the State Legislature
A Person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he-
• is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
• is in the case of seat in the Legislative Assembly, not less than twenty-five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and
• possesses such other qualification as may be prescribed in that behalf by or under any law made by Parliament.
DISQUALIFICATIONS:
· The disqualifications are same like that of a member of the Parliament.
· If he holds any office of profit under the Union or State government.
· A Minister in the union or state government is not considered as holding an office of profit.
· The state legislature can declare that a particular office of profit will not disqualify its holder from its membership.
· If he is of unsound mind and stands so declared by a court.
· If he is an un discharged insolvent.
· If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state.
· If he is so disqualified under any law made by the Parliament.
· The disqualification of a member is decided by the Governor after obtaining the opinion of the Election Commission.
· The question of disqualification on the grounds of defection is decided by the speaker. (Discussed in anti-defection law).
SPEAKER:
QUALIFICATIONS:
· He must be a member of the legislative assembly.
ELECTION:
· The speaker is elected from amongst the members of state legislative assembly.
· The election of the speaker is conducted by the pro-tem speaker.
· Protem speaker is appointed by the Governor. Generally the senior most member of the assembly is appointed as the pro-tem speaker.
RESIGNATION:
· Speaker submits the resignation letter to the Deputy Speaker.
VACANCY IN THE OFFICE OF THE SPEAKER:
· If the speaker ceases to be a member of assembly he deemed to be vacated the seat.
· If he resigns then there is a vacancy in the office of the speaker.
· If the speaker is removed by a resolution passed by a majority of all the then members of the assembly, then there is a vacancy in the office of the speaker.
REMOVAL PROCEDURE OF THE SPEAKER:
· The speaker can be removed from the office after giving 14 days advance notice.
· During this period the speaker cannot act as the speaker.
· Instead the deputy speaker acts as the Speaker.
· After 14 days if a resolution is passes by a majority of all the then members of the assembly, the speaker is considered to be removed from the office.
FUNCTIONS OF SPEAKER
· The most important function of the Speaker is to maintain decency and decorum in the assembly.
· The Speaker adjourns the assembly or suspends the meeting in the absence of quorum.
QUORUM:
· This is the minimum strength in the assembly.
· Quorum is equal to 1/10th of the total
OR
· 10 members whichever is higher.
· In bigger states like UP or AP the minimum strength must be 1/10th of the total and in states like Goa and Sikkim the minimum strength must be 10 members.
· The speaker has the casting vote or deciding vote.
WHAT IS CASTING VOTE?
· The speaker does not vote in the first instance.
· If there is an equality of votes then only the speaker votes.
· The speaker decides whether a bill is money bill or not and the decision of the speaker is final.
· The speaker decides the question of disqualification of the members of assembly on the grounds of defection under the provisions of 10th schedule of the Indian Constitution.
· The speaker appoints the chairmen of all the committees of the assembly.
· The speaker acts as the chairman of the Business Advisory Committee.
DEPUTY SPEAKER:
QUALIFICATIONS:
· The deputy speaker must be a member of Assembly.
· The deputy speaker is elected from amongst the members.
· The election of the speaker is conducted after the election of the speaker.
· The deputy speaker election is conducted by the Speaker.
FUNCTIONS OF THE DEPUTY SPEAKER:
· He acts as the speaker in the absence of the speaker.
RESIGNATION:
· The deputy speaker submits the resignation to the speaker.
VACANCY IN THE OFFICE OF THE DEPUTY SPEAKER:
· If the deputy speaker ceases to be a member of assembly he deemed to be vacated the seat.
· If the deputy speaker resigns then there is a vacancy in the office of the deputy speaker.
· If the deputy speaker is removed by a resolution passed by a majority of all the then members of the assembly, then there is a vacancy in the office of the deputy speaker.
REMOVAL PROCEDURE OF THE DEPUTY SPEAKER:
· In the same manner like that of the Speaker.
· The deputy speaker can be removed from the office after giving 14 days advance notice.
· During this period the deputy speaker cannot act as the speaker.
· After 14 days if a resolution is passes by a majority of all the then members of the assembly, the deputy speaker is considered to be removed from the office.
LEGISLATIVE COUNCIL:
STRENGTH: (NUMBER OF MEMBERS)
· The minimum strength is 40.
· The maximum strength is 1/3rd of the total strength of the assembly.
· In between the maximum and minimum the strength is fixed by the parliament.
ELECTION:
· The members of legislative council are elected indirectly.
NOMINATION:
· 1/6th of the total strength are nominated by the Governor.
ELECTION PROCEDURE:
· The members are elected in accordance with system of proportional representation by means of a single transferable vote.
· 1/3rd are elected by the members of local bodies like municipalities, district boards etc.
· 1/3rd are elected by the MLA’s (Members of Legislative Assemblies).
· 1/12th are elected by graduates.
· 1/12th are elected by teachers.
· 1/6th are nominated by the governor.
TERM OF LEGISLATIVE COUNCIL:
· It is a permanent house and subjected to dissolution.
· It may be abolished.
· 1/3rd members retire at the end of every second year.
· The term of a member of legislative council is 6 years.
· The retiring members are eligible for reelection.
QUALIFICATIONS FOR LEGISLATIVE COUNCIL:
· He must be a citizen of India.
· He must not be less than 30 years of age.
· He must possess other qualifications prescribed by the Parliament.
· A person to be elected to the legislative council must be an elector from an assembly constituency in the concerned state.
· He must be a resident in the concerned state.
DISQUALIFICATIONS:
· Same as that of Assembly member.
· If he holds any office of profit under the Union or State government.
· A Minister in the union or state government is not considered as holding an office of profit.
· If he is of unsound mind and stands so declared by a court.
· If he is an un discharged insolvent.
· If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state.
· If he is so disqualified under any law made by the Parliament.
· The disqualification of a member is decided by the Governor after obtaining the opinion of the Election Commission.
· The question of disqualification on the grounds of defections is decided by the Chairman. (Discussed in anti-defection law).
SALARY:
· The salary MLCs is decided by the state legislature.
· An MLC submits the resignation to the Chairman of the legislative council.
CHAIRMAN OF LEGISLATIVE COUNCIL:
· The chairman of the legislative council must be a member of the legislative council.
· The chairman is elected from amongst the members.
· This is unlike Rajya Sabha, where the Chairman is not a member of the Rajya Sabha.
RESIGNATION:
· The Chairman submits the resignation to the deputy chairman.
VACANCY IN THE OFFICE OF THE CHAIRMAN:
· If he ceases to be a member of legislative council.
· If the chairman resigns.
· If the chairman is removed by a resolution passed by a majority of all the then members of the council.
REMOVAL:
· For removing the chairman 14 days advance notice is given.
· If the resolution is passed by the then members of the council the chairman is considered to be removed.
FUNCTIONS OF THE CHAIRMAN:
· The functions of the chairman of the legislative council are similar to that of the speaker of assembly.
SALARY:
· The salary and allowances of the chairman of the legislative council are decided by the state legislature.
DEPUTY CHAIRMAN OF THE LEGISLATIVE COUNCIL:
· The deputy chairman must be a member of the legislative council.
· The deputy chairman is elected from amongst the members of the council.
RESIGNATION:
· The deputy chairman submits the resignation to the chairman.
VACANCY:
· If he ceases to be a member of legislative council.
· If the deputy chairman resigns.
· If the deputy chairman is removed by a resolution passed by a majority of all the then members of the council.
REMOVAL:
· Same procedure like that of Chairman.
· For removing the deputy chairman 14 days advance notice is given.
· If the resolution is passed by the then members of the council the deputy chairman is considered to be removed.
FUNCTIONS OF THE DEPUTY CHAIRMAN:
· The deputy chairman acts as the chairman in the absence of the Chairman.
HOW THE BILLS ARE PASSED IN THE STATE LEGISLATURE?
· The bills at the state level are divided into 2 categories.
· Ordinary bills
· Money bills
· In case of unicameral legislature all the bills are introduced in the assembly, if it is passes the bill will be forwarded to the Governor for his assent.
ORDINARY BILL:
· An ordinary bill can be introduced in either of the houses of the state legislature.
· If a bill that is introduced in the assembly is not passed, then the bill is considered to be rejected and the bill does not go to the legislative council.
· When a bill is passed by the assembly and forwarded to the council then
· The council may pass the bill as sent by the assembly
· The council may reject the bill.
· The council may pass the bill with amendments (changes) and return the bill to the assembly for reconsideration.
· The council may not take any action and keeps the bill pending.
· If the council passes the bill without amendments the bill is deemed to be passed by both the houses and is sent to the Governor for his assent.
· If the council passes the bill with amendments and the assembly accepts the same then also the bill is considered to be passes and forwarded to the Governor for his assent.
· If the assembly rejects the amendments as suggested by the council OR
· the council rejects the bill all together
· If the council does not take any action for a period of three months then the assembly may pass the bill again and forward the same to the council.
· If the council rejects the bill again OR
· Passes the bill with amendments that are not acceptable to the assembly OR
· If the council does not pass the bill within one month then the bill is deemed to have been passed by both the houses in the form in which it was passed by the assembly for the second time.
WHERE THE ULTIMATE AUTHORITY IS LIES?
· The ultimate power to pass a bill lies with the assembly.
· In case of dead lock there is no provision of the joint sitting like in Parliament.
What is dead lock?
· This is a situation where a bill is passed by one house and rejected by the other.
· On the other hand the bill that is originated in the legislative council is passed and sent to the assembly, if rejected by the assembly the bill is considered to be rejected and the bill becomes dead.
ROLE OF GOVERNOR:
· The Governor may give assent to the bill and the bill becomes an act.
· The Governor may withhold the bill the assent to the bill. Then the bill does not become an act.
· The Governor may return the bill for the reconsideration. In this case if the bill is passes by the legislature and sent to the governor for assent the governor must give the assent.
· The Governor may reserve the bill for the consideration of the President. The President may either give the assent
OR
· withhold the assent to the bill OR
· return the bill for reconsideration
· The state legislature must consider the bill within six months.
· The bill is presented again to the presidential assent after it is passed by the legislature with or without amendments.
CHAPTER-17
THE CHIEF MINISTER OF STATE
· The Governor is the dejure (nominal) head.
· The Chief Minister is the defacto (real) head.
· The Governor is the head of the state.
· The Chief Minister is the head of the Government.
APPOINTMENT:
· The Chief Minister is appointed by the Governor.
· Other Ministers are also appointed by the Governor only on the advice of the Chief Minister.
ARTICLE 164:
A. The Chief Minister shall be appointed by the Governor and other ministers shall be appointed by the Governor on the advice of the Chief Minister.
B. The Ministers shall hold the office during the pleasure of the Governor.
C. The Council of Ministers shall be collectively responsible to the state legislative assembly.
· To uphold the democratic principles the Governor appoints the leader of the majority party in the state legislative assembly as the Chief Minister.
· In case no party has the majority then the Governor uses the discretionary powers.
· The general principle is that the Governor invites the coalition group to form the government.
· In coalition government there are minimum 2 parties in the government.
· If there is no possibility of the formation of the government by group of parties then the Governor invites the single largest party to form the government.
· Single largest party is a party is different from the majority party. A majority party gets the clear cut majority in the house. Single largest party is that party that won highest number of seats in the house but did not get the majority.
· The total number of seats in Delhi assembly is 70 hence a majority party should get minimum 36 seats. But in the 2013 elections no party secured the majority. BJP won 31 seats hence it is the single largest party in the Delhi Assembly. AAP (Aam Aadmi Party) which secured to win 28 seats formed the minority government with the outside support of Congress which won 8 seats. If the single largest party refuses to form the government then he invites the second largest party to form the government.
· If no party comes forward to form the government then the Governor recommends for the proclamation of the President’s Rule.
· A person who is not a member of the state legislature can be appointed as the Chief Minister. He should become a member of either of the houses of the state legislature within six months, failing which he ceases to be the Chief Minister.
· The Chief Minister may be the member of any of the two houses of a state legislature.
OATH OF OFFICE:
· The oath of office to the Chief Minister is administered by the Governor.
TERM:
· The Chief Minister holds the office during the pleasure of the Governor.
RESIGNATION:
· The Chief Minister submits the resignation to the Governor.
REMOVAL
· The Chief Minister is removed by the Governor.
· The Chief Minister cannot be removed as long as he enjoys the majority of the House. (This was ruled by the Supreme Court in 1994 in S R Bommai V. Union of India case).
· If the Chief Minister loses the majority of the assembly, he must resign otherwise the Governor can remove the Chief Minister.
SALARY:
· The salary and other allowances of the Chief Minister are determined by the state legislature.
FUNCTIONS:
· The CM is the defacto head. Hence every important decision is taken only after his consent.
· The CM is the head of the Council of Ministers.
· The CM presides over the meeting of the Council of Ministers.
· The CM advises the Governor to appoint other Ministers.
· The CM decides the allocation of the portfolios among various the ministers.
Portfolio means Ministry. One minister can hold more than one portfolio.
· The CM reshuffles the portfolios.
· The CM advices the minister to resign.
· The CM advices Governor to accept resignation letter of a minister.
· The CM advices the Governor to dismiss a minister in case he does not tender resignation letter even after advice by the Chief Minister.
· The Chief Minister is the channel of communication between the Governor and the council of ministers.
· Article 167: It shall be the duty of the Chief Minister to communicate to the Governor of the state all decisions of the council of ministers relating to the administration of the affairs of the state and proposals for legislation. To furnish such information to the Governor relating to the administration of affairs of the state and proposals for legislation as the governor may call for and if the Governor so requires to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a minister but which has not been considered by the Council.
· The Advocate General is appointed by the Governor on the advice of the CM.
· The SPSC (State Public Service commission) Chairman and members are appointed by the Governor on the advice of the CM.
· The SFC (State Finance Commission) Chairman and the members are appointed by the Governor on the advice of the CM.
· The SEC (State Election Commissioner) is appointed by the Governor on the advice of the CM.
· The CM advices the Governor to summon and prorogue the state legislature.
· The CM advises the Governor to dissolve the state legislative assembly.
· The CM is the ex-officio chairman of the State Planning Board.
· The CM is the Vice Chairman of the Zonal council by rotation.
· Note: Zonal Councils discussed in detail separately.
· Note: The Union Home Minister is the Chairman of all Zonal Councils.
· The CM is a member of NDC (National Development Council).
· The CM is a member of ISC (Inter State Council).
· The CM is a member of NIC (National Integration Council).
NOTE:
· After the general elections (Assembly) the leader of the majority party is appointed as the Chief Minister.
· On the advice of the Chief Minister remaining ministers are appointed by the Governor.
· The Governor appoints the Pro-tem speaker.
· Generally the senior most member of the house is appointed as the pro-tem speaker.
· Note: On January 1, 2014 the senior BJP leader and MLA Jagdish Mukhi of Delhi has been appointed as the pro-tem speaker by the Lt. Governor Najeeb Jung. But he refused to be the pro- tem speaker. Hence the senior congress MLA Mateen Ahmed has been appointed as the pro-tem speaker.
· The Pro-tem speaker administers oath of office to the all newly elected members of the state legislative assembly.
The Chief Minister and other Ministers also take the oath as the members of the assembly.
CHAPTER 18
The High Courts in the States
The Constitution provides for a High Court for each state. Parliament may, however, establish by law a common High Court for two or more states or for two or more States and a Union Territory (articles 214 and 231).
Like the Supreme Court, each High Court is also to be a Court of record and of original and appellate jurisdiction with all the powers of such a court including the power to punish for its contempt (article 215).
The High Court occupies the top position in the judicial administration of state. The first High Courts were set up in India in Calcutta, Bombay and Madras in 1862. In the year 1866 the fourth High Court was set up in Allahabad. The 7th amendment (1956) Act authorized the Parliament to establish a common High Court for 2 or more states.
Art. 214: There shall be a High Court for each state.
1. Seventh Amendment Act 1956 provided for establishment for a Common High Court for two of more states or for two or more states and a Union Territory.
2. Presently there are 24 High Courts.
Qualification of Judges
Art. 217. Appointment and conditions of the office of a Judge of a High Court
1. Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years:
2. A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and-
a) has for at least ten years held a judicial office in the territory of India; or
b) has for at least ten years been an advocate of a High Court or of two or more such Courts in successions
Transfer of a High Court Judge
Art. 222. Transfer of a Judge from one High Court to another
1. The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
• S. P. Gupta v. Union of India
• It was argued that President should not transfer the judges without will. But Supreme Court held that Judges can be transferred even without will.
• In advocates-on-record case 1993, the Supreme Court held that President cannot transfer judges without the concurrence of CJI
• The authority to initiate transfer of Judges is with CJI
• Policy is chief justice and 1/3rd Judges of a High Court should be from outside the State
Acting Chief Justice
Art 223. Appointment of Acting Chief Justice
• When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
Art. 224. Appointment of additional and acting Judges
1. If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.
2. When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified persons to act as a Judge of that Court until the permanent Judge has resumed his duties.
Safeguards of Impartiality
THE Constitution seeks to secure the independence of Judges of the High Courts in the following
ways:
• A Judge of a High Court can only be removed by the President on an address of each House of the Parliament, passed by not loss than two-third of the members present and voting and by a majority of that House only on the ground of proved misbehaviour or incapacity.
• After retirement a Judge of a High Court cannot serve in any Court or before any authority in India except in the Supreme Court and , a High Court other than the High Court in which he had held the office.
• Their salaries and allowances cannot be changed to their disadvantage after their appointment except during a Financial Emergency.
• Their salaries and allowances are charged on the Consolidated Fund of State and are not subject to vote in the State Legislature.
• The conduct of the Judges of the High Courts cannot be discussed in the Parliament, except on a resolution for the removal of the Judges.
Control of the Union over High Courts
• While ensuring the independence of judiciary, the Constitution placed the High Court under the control of the Union in certain important matters in order to keep them outside the range of provincial politics.
• Even though the High Court stands as the head of the state judiciary, it is not sharply separated from federal Government as in the case of USA.
Jurisdiction of High Court
1 Original: in relation to admiralty, probate matrimonial, contempt of court etc.
• But the High Courts of Bombay, Calcutta and Madras have wider original jurisdictions because of its existence before independence, (concept of Presidency Towns)
2. Appellate Jurisdiction
• At least one right of appeal
3. Writ Jurisdiction
• Art 226: The Jurisdiction to issue writs under this article is larger in the case of High Court when compared to the Supreme Court.
• A High Court can issue a writ not only on violation of Fundamental Rights, but also where an ordinary legal right has been infringe, provided a writ is a proper remedy in such cases, according to well establish principles.
FUNCTIONS OF THE HIGH COURTS
• The High Courts control and supervise the working of courts subordinate to them and frame rules and regulations for the transactions of their business. Under Art. 227, every High Court has the power of superintendence over all courts and tribunals except those dealing with the Armed Forces functioning within its territorial jurisdiction. In exercise of this power, the High Court may (i) call for returns from such courts; (ii) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; (iii) prescribe forms in which books and accounts shall be kept by the offices of any such courts, and (iv) transfer cases from one court to another.
• Further, under Art. 235, the High Courts exercise control over the District Courts and the Courts subordinate to them in matters of posting, promotion, etc. According to Art. 229 of the Constitution, every High Court has been ensured a complete control over the members of its staff. Under this Article, the Chief Justice of the High Court is empowered to appoint officers and servants of the Court. He is also authorised to regulate the conditions of service of the staff and he has the power to dismiss any such member from the services of the Court.
• Every High Court, like the Supreme Court is a Court of Record and has all the powers of such a court including the power to punish for contempt of itself.
THE SUBORDINATE COURTS
• The provisions related to the Subordinate Courts have been dealt in Articles 233 to 237. In every State there is a system of subordinate courts below the High Court. The Constitution secures the independence of subordinate Judiciary from the Executive by providing that the "appointment, posting and promotion of District Judges shall be made by the Governor of the State in consultation with the High Court".
• A person who is not already in Government Service should have at least seven years' experience as an advocate or a pleader and should be recommended by the High Court for appointment as a District Judge.
• Appointment of persons other than district judges to the judicial service of a State shall be made by the Governor in accordance with rules made thereunder. Besides the State Public Service Commission, the High Court has to be consulted in the matter of such appointments.
Power of superintendence over all courts by the High Court.
Art. 227. Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
Appointment of district judges.
Art. 233. (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the
Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
District Judge
Art. 236. The expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistance district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional
sessions judge and assistant sessions judge.
LOK ADALATS
Under the Legal Services Authorities Act of 1987, Lok Adalats have been given a statutory status. The aims of Lok Adalats are:
• Secure justice to the weaker sections.
• Mass disposal of the cases to reduce cost and delay.
• The Legal Services Act provides for Lok Adalats to be organized by the State or district authorities.
• The jurisdiction of the Lok Adalats is conferred on them by the State or the district bodies. • The jurisdiction of the Lok Adalats is wide—any matter falling within the jurisdiction of civil, criminal, revenue Courts or tribunals.
• A case goes to the Lok Adalat if the two parties make a joint application to compromise.
• The award of the Lok Adalat is binding upon all the parties. Lok Adalats, in sum, are given the powers of the Civil Courts.
• The Supreme Court and the HCs have held Lok Adalats from time to time and disposed off thousands of cases. On October 2, 1996, a nationwide programme was launched to dispose off one million cases through Lok Adalats.
• 2.5 lakh cases are pending in all the Courts in the country.
• Lok Adalats are important as an alternative mode of dispute resolution.
Lok Adalats have no judicial functions: SC / SC on Lok Adalats
• According to the Supreme Court Lok Adalats set up under the provisions of the Legal Services Authority Act have no adjudicatory or judicial functions and they cannot decide cases referred to them on merits.
• A three-Judge Bench comprising Chief Justice K.G. Balakrishnan, Justices G.P. Mathur and R.V. Raveendran said that a Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance and put its seal of confirmation by making an award in terms of the compromise or settlement.
• When the Lok Adalat was not able to arrive at a settlement, no award was made and the case would be returned to the court from which the reference was received for disposal in accordance with law.
• The CJI said that no Lok Adalat has the power to hear parties to adjudicate cases as a court does. It discusses the subject matter with the parties and persuades them to arrive at a just settlement.
• The 'award' of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the present of the LA in the form of an executable order under the signature and seal of the LA.
• Many sitting or retired judges, while participating in Lok Adalats as members, tend to conduct LAs like courts, by hearing parties, and imposing their views as to what is just and equitable on the parties. Sometimes they get carried away and proceed to pass orders on merits, as in this case, even though there is no consensus or settlement. Such acts, instead of fostering alternative disputes resolution through LAs, will drive the litigants away from Lok Adalats.
• The Bench said that Lok Adalats should resist their temptation to play the part of judges and constantly strive to function as conciliators.
FAST-TRACK COURTS
• While the setting up of courts, including fast-track courts, is the responsibility of the State governments, the 11th Finance Commission recommended a scheme for the establishment of fast-track courts, and sanctioned Rs. 500 crore of Central funds for the purpose. The FTCs were established to expeditiously dispose of long pending cases in the Sessions Courts and long pending cases of under trial prisoners. Though they were initially meant to look at long-pending cases and those involving under trials, but were later directed to try specific cases, such as crimes against women and children. Fast-track courts function by the same procedures as other trial and sessions courts, but have better infrastructure and funding. They are expected to dispose of at least 14 sessions cases a month.
• The initial scheme was to run for five years and by 2005, 1,562 were functioning, the Law Ministry's data show. On the Supreme Court's directions, the Central funding was extended by another five years and discontinued in March 2011. By then, the number of fast-track courts still functioning was already down to 1,192. After the gang-rape of a young woman in a Delhi bus on December 16, 2012, the Centre decided to extend the scheme partially until March 2015 by providing up to Rs. 80 crore a year as matching grant to meet the salaries of the additional judges. But by July 2014, the number of functional fast-track courts was down to 976. In response to an un-starred question by BJP MP Nalin Kateel from Karnataka, Minister of Law and Justice Ravi Shankar Prasad revealed the following facts about the sorry state of affairs.
• Fourteen years after they were first set up, just half the fast-track courts set up across the country are still functional, the Law Ministry says. Only five States — Assam, Goa, Kerala, Meghalaya and Mizoram — still have all their fast-track courts sanctioned in 2000 functional, data show. Rajasthan, Uttarakhand, Himachal Pradesh and Arunachal Pradesh are the worst performers with none of their sanctioned fast- track courts functional.
• Just 61 of Gujarat's 166 fast-track courts are still working, 39 of Karnataka's 93, 92 of Maharashtra's 187 and 85 of West Bengal's 152. Fast-track courts disposed of over 3 million cases in their first 11 years. However, the quality of justice delivered by them is disputed, as well as the impact they have on the speed of justice in the rest of the system.
JUDICIAL IMPACT ASSESSMENT
• Considering the huge backlog of cases in courts, a Task Force, set up at the instance of the Supreme Court, has recommended that a judicial impact assessment (JIA) be done whenever a law is introduced in Parliament or the State legislatures.
• The Task Force, under the chairmanship of Justice M. Jagannadlvi Rao, former Law Commission Chairman, presented its report to Law Minister H.R. Bhardwaj in New Delhi on June 19, 2008. The report says the following:
• A financial memorandum must be attached to each Bill, giving an estimate of budgetary requirement of not only other staff but also for meeting the expenses of additional cases that might arise out of its passage in the legislature.
• Such a system had been followed in the United States for over two decades.
• The report said that the budget must mention the number of cases likely to be generated by the new Act, how many courts and how many judges are necessary.
• JIA must be made on a scientific basis to assess the extra caseload which any new Bill or legislation may add to the burden of courts, and the expenditure required for adjudication of such cases must be estimated by the government and adequate budgetary provision made thereof.
• The task force suggested the setting up of judicial impact offices in Delhi and in States for the assessment by involving social scientists, statisticians and legal experts.
• Every Central Ministry that sponsors a Bill should fund the creation of new courts to handle cases that may be filed after it becomes law.
• There is no point in blaming the judiciary for case arrears; the blame must also lie with other departments that help it. The report said that there are 13 judges per million population and need five times the present strength of about 14,000 judges. The Planning Commission and the Finance Commission must, in consultation with the Chief Justice of India, allocate sufficient funds for judicial administration.
• The State governments "must likewise make adequate financial provision for meeting the expenditure of courts, at the stage of the Bills, for implementation of the laws to be made by the legislature with respect to subjects in the State List and the Concurrent List in the Constitution."
NATIONAL E-COURTS PROJECT
• The National E-Courts Project was launched by former President Dr. A.P.J. Abdul Kalam on July 9, 2007. It is meant for extensive computerization of the courts.
• This project was devised after the E-Committee on National Policy and Technology in the Indian Judiciary recommended for extensive computerization of courts.
• The project shall be implemented in three phases over a period of five years.
• The project would cost Rs 854 crore.
Need of the project
• There has been a backlog of vast amount of cases in almost all the courts thereby leading to pending trials and delayed justice.
• It is often said that justice delayed is justice denied.
• Right to speedy trial is also a fundamental right under Article 21.
• Computerisation of courts would enhance the efficiency of the courts and cut the time in maintaining and preparing the reports. Thus, it would make the justice delivery system prompt.
First phase
• It would extend for first two years.
• Under the first phase, computer rooms and judicial service centres would be set up in all 2500 court complexes.
• About 15000 judicial officers would be provided with laptops.
• Digital connectivity would be established between all courts from the taluka level to Apex Court.
• Creation of a well structured database, equipping the courts with user friendly retrievable facilities and digital archiving of the cases would be done.
• Creation of e-filing facility in the Supreme Court and High Courts would be done.
• A comprehensive and integrated customized software application for the entire judicial system with regional language support would be developed.
• The outlay of the first phase is Rs 442 crore. This phase would be completed by the end of March 2008.
Second phase
• It would also be completed in two years.
•It includes providing Information and Communication Technology (ICT) coverage of judicial process from filing to execution.
Third phase
• It would be of one year duration.
• It includes creation of information gateways between courts, public agencies and departments.
Significance of the project
• It would lead to an improvement in capacity building of judges primarily in subordinate courts for delivery of speedy and quality justice.
• It would also help in creation of National Judicial Data Centre to provide for litigation trends in the country.
• Digital production of under-trial prisoners and distant examination of victims through video conferencing would be possible.
• It would ensure transparency, accountability and cost effectiveness in the judicial system.
JUDICIAL REVIEW IN INDIA
The essence of judicial review is the competence of a court of law to pronounce upon the constitutional validity of a Legislative enactment. In fact, the power of judicial review arises from the judiciary's role as the guardian and ultimate interpreter of the Constitution.
The origin of the concept of Judicial Review can be traced back to the position the United States' Supreme Court took in the famous case of Marbury vs. Madison. In this case, the US Supreme Court assumed to itself the power of declaring a legislative enactment asinvalid on the ground of constitutionality, thereby it firmly established the doctrine of Judicial Review. Chief Justice John Marshall was the main proponent of this doctrine in this landmark judgment. The concept of Judicial Review is basically practiced in the federal Stales In such States, the division of power between the federal government and the state governments and the express constitutional prohibition on legislative authority are the two main sources for the exercise of judicial veto on legislation.
In India, the power of the Court to declare legislative enactment', invalid is expressly enshrined in Article 13 of the Constitution. Article 13 declares that every law in force or every future law inconsistent with or in derogation of the Fundamental Rights shall be void. Article 32'is another source from which the Supreme Court draws its power of reviewing legislative enactments of the Union and the States.
However, the Constitution itself exempts some provisions from Judicial Review, such as the advice tendered by the Council of Ministers to the President or the Governor, privileges of Members of Parliament and State legislatures, validity and conduct of proceedings in Parliament, etc. Moreover, in India the Supreme Court can pronounce upon the constitutionality of a Law only if it is contrary to the letter of the Constitution; it cannot go into the intentions underlying the law or administrative action and declare it unconstitutional.
The doctrine of judicial review basically refutes the English doctrine of the absolute supremacy of Parliament in legislative matters. In this context, a famous British Jurist remarked that the British Parliament can make anything by legislation except making a woman man and a man woman. It is to say that there is no restrictions on the Legislative powers of the British Parliament. In this, the Indian Constitution is more akin to the US Constitution. However, the scope of judicial review in India is not as wide as it is in the US. This is because in India the legislative enactments have to be tested merely against the principle of "procedure established by Law" while in the US Legislative enactments have to stand the test of "due process of Law". Following the principle of procedure established by law, the Indian Supreme Court cannot declare legislative enactments invalid on the grounds that they isolate the natural, social or political rights of citizens, unless it could be shown that such injustice was expressly prohibited by the Constitution.
Following factors have also contributed to the reasons why the scope of judicial review is limited in India in contrast to that in the USA:
i) Constitution of India goes into great detail in dividing the Legislative power between the Union and the States, in the creation of a long Concurrent List covering vast areas involving
possible conflicts between the Union and the States, and above all in making the Union Supreme in that field. This has minimized such possible conflicts reducing the scope for judicial interference,
ii) The detailed manner in which the Fundamental Rights are formulated has also contributed to the restricted scope of judicial review. The Constitution has imposed limitations and qualifications of each fundamental right, restricting the scope of judicial review. However, the Supreme Court is the ultimate authority to determine the 'reasonableness' of regulations on Fundamental Rights made by the legislature.
To conclude it can be said that India stands between the two extremes of Parliamentary Supremacy in Britain and judicial supremacy in the US.
NATIONAL GREEN TRIBUNAL
The National Green Tribunal (NGT) has been established under the NGT Act. 20 Won 18th October, 2010 is headed by Chairperson Justice Swatantar Kumar a Retired Supreme Court Judge. The Tribunal has been established for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests mid other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected there within or incidental thereto.
The Law Commission in its 186"' Report recognised the inadequacies of the existing appellate authorities constituted under various environmental laws and reviewed their position with a view to bring uniformity in their constitution and the scope of their jurisdiction. The Law Commission undertook the study pursuant to the observations of the Supreme Court regarding the need for constitution of environmental courts. The Law Commission, in its said report, recommended for setting up of environmental courts in each State or for a group of States for exercising all powers of a civil court in its original jurisdiction and with appellate judicial powers against orders passed by the concerned authorities under the Water (Prevention and Control of Pollution) Act, 1974. the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act. 1986, the Public Liability Insurance Act. 1991.
The Law Commission's Report was considered in the Ministry. In view of the growing environmental challenges, it was decided to set up a green tribunal as a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues. The Tribunal has the same powers as are vested in a civil court under the Code of Civil Procedure, 1908.
• The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.
• The Tribunal's dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher Courts.
• The Tribunal is mandated to make an endeavor for disposal of applications or appeals finally within 6 months of filing of the same.
• Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible.
• The Tribunal has the original jurisdiction over all civil cases where a substantial question relating to environment, including enforcement of any legal right relating to environment is involved.
• The Tribunal shall hear disputes arising out of the implementation of environmental laws mentioned in Schedule I of the NGT Act, 2010.
• The Government is empowered to add any Act of Parliament having regard to objectives of environmental protection and conservation of natural resources.
• The Tribunal is competent to provide relief over and above us inadmissible under the Public Liability Insurance Act, 1991.
• In order to ensure access to justice, pollution control boards and local authorities have also been empowered under the NGT Act to file an application orappeal before the Tribunal on behalf of Un- affected person.
• Appeal against any order of the Tribunal shall lie to the Supreme Court.
• No civil court shall have jurisdiction to entertain any appeal in respect of any matter which the Tribunal is empowered to determine under its appellate jurisdiction.
• No injunction shall be granted by any civil court or other authority in respect of any order passed by the Tribunal.
• Consequent to enforcement of the National Green Tribunal Act, 2010, the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 have been repealed. The cases pending before the National Environment Appellate Authority at the time of establishment of the National Green Tribunal have been transferred to the National Green Tribunal.
• The five places of its sitting are at Delhi, Bhopal, Pune, Kolkata and Chennai.
• Delhi has already been specified as ordinary place of sitting of NGT vide Government of India notification dated 5.5.2011. The Tribunal at Delhi has already commenced its hearings from 4th July, 2011.
• The applicants can file applications/petitions before the Tribunal at Delhi till other benches of the Tribunal become functional. The infrastructure at the 5 places of sitting of the Tribunal is being set up for making it fully functional.
• At present, the Tribunal consists of Chairperson and 3 Expert Members and 2 Judicial Members. The Expert Members are experts in physical and life sciences, engineering and law including persons having practical knowledge and administrative experience in the field of environmental policy and regulation. The Ministry is in the process of filling up of the remaining vacancies of Members in the Tribunal since NGT Act, 2010 provides for a minimum of 10 Expert Members and equal number of Judicial Members.
GRAM NYAYALAYA ACT 2008
The Gram Nyayalayas Act, 2008 has been enacted to provide for the establishment of the Gram Nyayalayas at the grass roots level for the purpose of providing access to justice to the citizens at their door steps. The salient features of the Gram Nyayalayas Act are as follows:
i) Gram Nyayalayas are aimed at providing inexpensive justice to people in rural areas at their doorsteps;
ii) the Gram Nyayalaya shall be court of Judicial Magistrate of the first class and its presiding officer (Nyayadhikari) shall be appointed by the State Government in consultation with the High Court;
iii) the Gram Nyayalaya shall be established for every Panchayatat intermediate level or a group of contiguous Panchayats at intermediate level in a district or where there is no Panchayatat intermediate level in any State, for a group of contiguous Panchayats;
Iv) the Nyayadhikaris who will preside over these Gram Nyayalayas are strictly judicial officers and will be drawing the same salary, deriving the same powers as First Class Magistrates working under High Courts;
v) the Gram Nyayalaya shall be a mobile court and shall exercise the powers of both Criminal and Civil Courts;
vi) the seat of the Gram Nyayalaya will be located at the headquarters of the intermediate Panchayat, they will go to villages, work there and dispose of the cases;
vii) the Gram Nyayalaya shall try criminal cases, civil suits, claims or disputes which are specified in the First Schedule and the Second Schedule to the Act;
viii) the Central as well as the State Governments have been given power to amend the First Schedule and the Second Schedule of the Act. as per their respective legislative competence;
iX) the Gram Nyayalaya shall follow summary procedure in criminal trial;
x) the Gram Nyayalaya shall exercise the powers of a Civil Court with certain modifications and shall follow the special procedure as provided in the Act;
xi) the Gram Nyayalaya shall try to settle the disputes as far as possible by bringing about conciliation between the parties and for this purpose, it shall make use of the conciliators to be appointed for this purpose;
xii) the judgment and order passed by the Gram Nyayalaya shall be deemed to be a decree and to avoid delay in its execution, the Gram Nyayalaya shall follow summary procedure for its execution;
xiii) the Gram Nyayalaya shall not be bound by the rules of evidence provided in the Indian Evidence Act, 1872 but shall be guided by the principles of natural justice and subject to any rule made by the High Court;
xiv) appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal;
xv) appeal in civil cases shall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal;
xvi) a person accused of an offence may file an application for plea bargaining.
The Central Government has decided to meet the non-recurring expenditure on the establishment of these Gram Nyayalayas subject to a ceiling of Rs. 18.00 lakhs out of which Rs. 10.00 lakhs is for construction of the court, Rs. 5.00 lakhs for vehicle and Rs. 3.00 lakhs for office equipment. Government has also estimated that the Gram Nyayalayas upon establishment would incur a recurring expenditure of Rs. 6.4 lakhs per annum on salaries etc. and proposes to share such recurring expenditure with the State Government for the first three years within this ceiling.
More than 5000 Gram Nyayalayas are expected to be set up under the Act for which the Central Government would provide about Rs.1400 crores by way of assistance to the concerned States/Union Territories.
The Government is working out a roadmap for judicial reforms. The setting up of Gram Nyayalayas will be an important measure to reduce arrears. There are as many as 2.6 crores of arrears and the Gram Nyayalayas are likely to reduce around 50 % of the pendency of cases in subordinate courts and also to take care of the new litigations which will be disposed within six months. This measure will usher in great revolution in disposal of cases and also to take justice to the doorsteps of the common man.
Backgrounder:
NATIONAL MISSION FOR JUSTICE DELIVERY AND LEGAL REFORMS
• The setting up of the National Mission for Justice Delivery and Legal Reforms was approved in June 2011.
• The National mission would help in implementing the two major goals of increasing access by reducing delays and arrears in the system and enhancing accountability at all levels through structural changes and setting performance standards and facilitating enhancement of capacities for achieving such performance standards
• A mission mode approach is proposed to improve the infrastructure of Subordinate Courts under National Mission for Delivery of Justice and Legal Reforms
• The National Mission would comprise of Advisory Council, Governing Council, National Mission Leader and the Mission Directorate.
• The Advisory council will advise on the goals, objectives and strategies of the National Mission and the Action Plan and its implementation and performance of the Mission in meeting its objectives and would be chaired by the Minister for Law and Justice and would have membership from Parliament, State Governments, Jurists & senior officers of Government of India.
• The Governing Council would facilitate implementation, give policy directions and oversee the work of the Mission and would be headed by the Minister for Law and Justice.
• The Secretary, Department of Justice would be the National Mission Leader.
• A Mission Directorate would be constituted to implement and monitor the various initiative / programme of the National Mission. It would be headed by an officer of the rank of the Joint Secretary who would act as the Mission Director.
• A tentative Action Plan has been drawn up which would of course be subjected to change once the Advisory Council meets to set out the agenda. The tentative Action Plan covers:-
i) Policy and Legislative changes such as All India Judicial Service, Litigation Policy, Judicial Impact Assessment, Judicial Accountability Bill, Amendment in N.I. Act and Arbitration & Conciliation Act, Legal Education Reforms and Retirement age of HC Judges.
ii) Re-engineering procedures and alternate methods of Dispute Resolution such as identification of bottlenecks, procedural changes in court processes, statutory amendments to reduce and dis incentivize delays, Fast tracking of procedures, appointment of court managers and Alternate Dispute Resolution.
iii) Focus on Human Resource Development such as filling up of vacancy positions in all courts of judges and court staff, strengthening State Judicial Academies, Training of Public Prosecutors and ICT enablement of public prosecutors offices, strengthening National Judicial Academy and Training of mediators.
iv) Leveraging ICT for better justice delivery such as implementation of E-courts project, integration of ICT in the judiciary and use in criminal justice delivery and creation of National Arrears Grid.
v) Improving Infrastructure such as improving physical infrastructure of the District and subordinate courts and creation of special / additional courts like Morning / Evening Courts, Family Courts and Gram Nyayalayas.
• Infrastructure development for the subordinate judiciary is the major thrust area of the National Mission.
• An Advisory Council and a Governing Council has been constituted as part of the National Mission. The Mission Directorate of the National Mission is being set up. The post of the Joint Secretary has been created.
• The first meeting of the Advisory Council of the National Mission for Justice Delivery and Legal Reforms was held on 18.10.2011 to decide on the Goals, Objectives, Strategies and the Tentative Action Plan of the National Mission.
• The decisions taken in the meeting of the Advisory Council:
• The Action Plan timelines will be redrawn.
• A proposal on data collection of National Arrears Grid within a timeline will be prepared.
• Some high impact areas under the Pendency Reduction Campaign can be identified for focused attention.
• Three specific areas to be looked into (i) Legal Education; (ii) Procedures in court and improving court processes meeting criminal justice system; and (iii) Software assessment under e-courts project for improving citizen centric services.
JUDICIAL REFORMS
In order to make the judiciary more responsive to the needs of people and speed up the process of justice, make it more accessible and reduce costs, the following must be done:
• computerisation of the whole country for quick disposal of cases;
• fill up vacancies. Presently, there are about 20 per cent vacancies in Supreme Court. The sanctioned strength of the Allahabad High court is 77 but it has never ever reached in its history.
• competent and able members of the Bar are to be 'attracted' to the judicial posts at the subordinate level.
• granting of admission orders and stay orders must be curtailed
• the high level of court fees prescribed by many state governments must be reduced as it adds to the cost of justice
• delays add to costs- more the delays, more the adjournments and more the cost of litigation - and so delays must be cut; not more than two adjournments are to be permitted.
• the problem of arrears can be solved by strict enforcement of Art. 141, which says that the rulings of the Supreme Court are binding on all courts.
• the rules regarding adjournments given in Order XVII of the Civil Procedure Code must be strictly followed so that repeated adjournments are not made.
CHAPTER- 19
Elections in India
India is a constitutional democracy with a parliamentary system of government, and at the heart of the system lies a commitment to hold regular, free and fair elections. These elections determine the composition of the government, the membership of the two Houses of Parliament, the State and Union Territory Legislative Assemblies, Local self governing institutions and the Presidency and Vice- Presidency.
ELECTORAL LAWS
• The Constitution of India has vested, in the Election Commission, the superintendence, direction and control of the entire process, for conduct of elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.
• Village and city local elections have been left to the State Governments under local Commissioners.
• Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament.
The major laws are-
1. REPRESENTATION OF THE PEOPLE ACT, 1950 deals with Allocation of seats in the House of the People, Filling of seats in the House of the People and Parliamentary Constituencies, delimitation of constituencies, the preparation and revision of electoral rolls, qualifications of voters at such elections.
• The Representation of the People (Amendment) Act, 2010 confer
voting rights to citizens of India who are absenting from their place or ordinary residence's India owing to their employment, education or otherwise outside India (whether temporarily or not).
• Vide the amending Act; they shall be entitled to have their names registered in the electoral roil in the Assembly/Parliamentary constituency in which their place of residence in India as mentioned in their passport is located.
2. REPRESENTATION OF THE PEOPLE ACT, 1951, which deals with conducting electionsof the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualification-, and disqualifications for membership ofthose Houses, the corrupt practices and other offences at or in connection with such election1, and the decision of doubts and disputes arising out of or in connection with such elections.
The Supreme Court of India has held that where the enacted laws arc silent or make insufficient provision to deal with a given situation in the conduct of elections, the Election Commission has the residual powers under the Constitution to act in an appropriate manner.
• Disqualification on conviction for certain offences - A person convicted of an offence punishable under
o
offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or offence of bribery or offence of undue influence or personation at an election) or offences relating to rape, offence of cruelty towards a woman by husband or relative of a husband or offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies.
· Protection of Civil Rights Act, 1955, which provides for punishment for the preaching and practice of "untouchability", and for the enforcement of any disability arising there from;
o offence of importing or exporting prohibited goods
o
offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967
o
Foreign Exchange (Regulation) Act, 1973
o the Narcotic Drugs and Psychotropic Substances Act, 1985or
o offence of committing terrorist acts or offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 or
o
offence of insulting the Indian National Flag or the Constitution of India etc.
•A person convicted for the contravention of -
· any law providing for the prevention cf hoarding or profiteering; or
· any law relating to the adulteration of food or drugs or
· any provisions of the Dowry Prohibition Act, 1961
· A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release
Disqualification on ground of corrupt practices, (Section 8A)
(1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period.
· Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under section 99takes effect.
· Before giving his decision on any question or on any petition submitted under subsection the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.
· Disqualification for dismissal for corruption or disloyalty-(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal. Disqualification for failure to lodge account of election expenses - If the Election Commission is satisfied that a person (a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act; and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.
· Removal or reduction of period of disqualification- The Election Commission may, for reasons to be recorded, remove any disqualification except under section 8A or reduce the period of any such disqualification.
· Political parties are entitled to accept contribution- Subject to the provisions of the Companies Act, 1956, every political party may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company provided that no political party shall be eligible to accept any contribution from any foreign source defined under clause (e) of section 2 of the Foreign Contribution (Regulation) Act, 1976
· Declaration of donation received by the political parties-(1) The treasurer of a political party or any other person authorised by the political party in this behalf shall, in each financial year, prepare a report in respect of the following-
a) Contribution in excess of twenty thousand rupees received by such political party from any person in that financial year;
b) Contribution in excess of twenty thousand rupees received by such political party from companies other than Government companies in that financial year.
Amendment to the Representation of the People Act, 1951
• In 2009, following amendments were done-
• Amendment of section 8A: In the Representation of the People Act, 1951, in sub-section (1) of section 8A, for the words "as soon as may be after such order takes effect" the words "as soon as maybe within a period of three months from the date such order takes effect shall be substituted.
• Insertion of new sections 126A and 126B: After section 126 of the principal Act, the following sections shall be inserted, namely:
• 126A- Restriction on publication and dissemination of result of exit polls, etc: (1) No. person shall conduct any exit poll and publish or publicize by means of the print or electronic media or disseminate in any other manner, whatsoever, the result of any exit poll during such period, as may be notified by the Election Commission's the regard.
• Election Commission shall, by a general order, notify the date and time having due regard to the following, namely:-
a) in case of a general election, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the poll in all the States and Union territories.
b) in case of a bye-election or a number of bye-elections held together, the period may commence from the beginning of the hours fixed for poll on and from the first day of poll and continue till half an hour after closing of the poll.
126B- Offences by companies: (1) Where an offence under subsection (2) of section 126A has been committed by a company, every person who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The Supreme Court of India, in the case of Chief Election Commissioner vs Jan Chowkidar, on 10 July 2013 upheld the decision of the Patna High Court that any person confined in prison or lawful police custody is not entitled to vote under the Section 62 of Representation of the People Act (RPA), 1951. Also, the Apex Court gave its verdict that the imprisoned person is not entitled to contest the elections to the Parliament of India or the State Legislatures. The Supreme Court concluded that a person in jail or police custody is not entitled to vote, and therefore, is not an elector, and thus, cannot contest elections.
The Supreme Court of India in the case of Lily Thomas vs Union of India, held the decision that Section 8(4) of the RPA that enables the MPs and MLAs who are convicted of any crime or illegal offence while serving the term as the members, to continue in the office until the appeal has been disposed off against the conviction, is absolutely unconstitutional.
The Section 8(4) has been used proactively by Election Commission of India in dealing with electoral malpractices. Umlesh Yadav is the first politician to be disqualified by the Election Commission of India for a period of three years for suppression of her election expenses incurred when she was elected as an MLA to the Bisauli constituency in the Uttar Pradesh state assembly elections, 2007.
•RPA (Amendment and Validation) bill was introduced in the parliament to negate the effect of the Supreme Court judgment of July 2013. The bill was introduced in Rajya Sabha on August 30, 2013 and was passed on the same day. It was later sent to the Lower House i.e. Lok Sabha where the bill got finally passed on September 06, 2013. The key changes brought about by the Bill are:
• A person can file his nomination even though he is shunned from being voting owing to be in jail or in police custody during elections or before.
• The past act has not defined on what grounds, a person can be disqualified. In this act the grounds are clearly stated as disqualification can be on conviction for certain specified offences and can be on no other ground. As a result if one is proved for any conviction of any one of the offences, then he/she name will be wiped off from electoral roll and shall cease to be a voter.
• The amendment allows a legislator to retain membership of the legislature even after conviction if an appeal against the conviction is filed before a court (within 90 days) and the sentence is stayed by the court. The legislator can continue to take part in proceedings of the legislature without being entitled to vote or draw salary or allowances until the appeal or revision is finally decided in court. If a stay is not obtained by the legislator within three months against the conviction, the legislator would stand disqualified.
• But SC says the parliament has exceeded its legislative lenience in making these provisions.
3. Delimitation Act, 1950 which provides for delimitation and reservation of constituencies.
• Delimitation is the redrawing of the boundaries of parliamentary or assembly constituencies to make sure that there are, as near as practicable, the same number of people in each constituency. In India boundaries are meant to be examined after the ten-yearly census to reflect changes in population, for which Parliament by law establishes an independent Delimitation Commission, made up of the Chief Election Commissioner and two judges or ex-judges from the Supreme Court or High Court. However, under a constitutional amendment of 1976, delimitation was suspended until after the census of 2001, ostensibly so that states' family-planning programmes would not affect their political representation in the Lok Sabha and Vidhan Sabhas. This has led to wide discrepancies in the size of constituencies, with the largest having over 25,00,000 electors, and the smallest less than 50,000.
Purpose of delimitation
The delimitation exercise is meant to remove the disparities in the size of various electoral constituencies throughout the country.
Who undertakes it?
In India boundaries are meant to be examined after the ten-yearly census to reflect changes in population, for which Parliament by law establishes an independent Delimitation Commission, made up of the Chief Election Commissioner and two judges or ex-judges from the Supreme Court or High Court.
The Delimitation Act, 2002
• The Delimitation Act, 2002 has been enacted to constitute a Delimitation Commission to give effect to the Constitution (84th Amendment) Act, 2001.
• The main task of the Commission is to readjust the division of territorial constituencies of the seats in the House of the People, allocated to each State, and to readjust the division of territorial constituencies of the total number of seats in the Legislative Assembly of each State, on the basis of 1971 census.
• The seats reserved for Scheduled Castes and Scheduled Tribes to be re fixed on the basis of census of 1991.
A Delimitation Commission, headed by Shri Justice Kuldeep Singh, a retired judge of the Supreme Court, with the Election Commissioner, Shri B.B. Tondon and Election Commissioner of the State concerned, as Members of the Commission has been constituted.
The Delimitation (Amendment) Act, 2003
• The Delimitation Act, 2002, provided for delimitation of electoral constituencies on the basis of 1991 census. Pursuant to enactment of the Constitution (Eighty Seventh Amendment) Act. 2003. to provide for readjustment of electoral constituencies, including those reserved for the Scheduled Castes and the Scheduled Tribes, based on the population census for the year 2001, without affecting the number of seats
allocated to States in the Legislative bodies, the Delimitation Act, 2002, was required to be amended. Accordingly, the Delimitation Act, 2003, was enacted.
• The Act provides for delimitation of Assembly and Parliamentary constituencies on the basis of 2001 census.
• It is within these framework of Acts, that the electoral system can be described as follows:
• The electoral system is based on the principle of universal adult suffrage, whereby every citizen of India who is not less than18 years of age (before 1989 the age limit was 21) and is not otherwise disqualified under the Constitution or any law made by the appropriate Legislature on certain grounds, has the right to be registered as voter. As per Art. 326. the grounds for denial of right to vote are non- residence, unsoundness of mind, record of crime or of corruption.
• It is based on geographical representation. Article 325 declares abandonment of separate electorates on the basis of religion, race, caste or sex and provides for one general electoral roll for every territorial constituency. This has brought to an end the practice of separate or communal electorates during the British rule.
• There are only single-member territorial constituencies and no functional or plural constituencies. There used to be some double-member constituencies up to 1961, but an Act passed in the same year abolished this practice.
• Each territorial constituency elects a single representative by a simple majority vote. The candidate who secures the largest number of votes is declared elected. It is not necessary for a candidate to secure an absolute majority.
"FIRST-PAST-THE-POST ELECTORAL SYSTEM"
Elections to the Lok Sabha are carried out using a "first-past-the-post electoral system". Under this system, election results are determined on the basis of the relative majority of the votes polled, and the candidate who is ahead of all other candidates even by a single vote is elected, even if a majority of voters do not vote in his favour.
Advantages
• This is the simplest form of election in a democratic system.
• This system provides greater opportunity in helping to form a majority government.
• This system helps in curbing parochial tendencies of the political parties based on exploitation of religion, race, caste, etc.
Disadvantages
• The chief defect of this system is that only the relative majority is taken into consideration. Since most of the contests are multi cornered, sometimes a candidate securing 30 to 40 per cent of votes polled in a constituency is declared elected. As a result, bulk of the electorate is not represented at all.
• Another serious criticism of this system is that the party that polls a minority of votes may secure a majority of seats, in this process, the minority parties get eliminated, because their political strength is dispersed. It tends to under-represent minority parties and over-represent the majority.
• Yet another criticism against this system is that the minority votes go unrepresented. But the Constitution adopted this system because it is best suited to the Indian context.
However. election for the members of the Rajya Sabha, State Legislative Councils and the offices of the President and the Vice-President are carried out using the System of Proportional Representation vote system. The single transferable vote system is designed to ensure more diverse representation, by reducing the opportunity for blocks of voters to dominate minorities. The ballot paper lists all candidates standing for election and the voters' list them in order of preference. A threshold number of votes, known
as the 'quota' is set, which candidates have to achieve to be elected. For presidential elections the quota is set at one more than half the number of votes, ensuring that the winner is the candidate who gets a clear majority. For the Rajya Sabha the quota is set at the number of votes that can be attained by just enough MPs to fill all the seats but no more. Votes that are deemed surplus, those given to candidates who have already got a full quota of votes, or votes given to candidates who are deemed to be losing candidates, are transferred according to the voter's listed preferences, until the right number of candidates have been elected. This system is followed in Australia, at the federal level, for elections to the House of Representatives.
SYSTEM OF PROPORTIONAL REPRESENTATION
A candidate seeking election under the Proportional Representation system should get more than 50 per cent of the total votes cast. Under this system, the number of seats in the legislative body will be, as nearly as possible, in proportion to the votes cast for that party. Proportional Representation system is strongly supported by minority parties which suffer from the electoral distortions of the single member constituency system. However, even this system is not free from weakness. Proportional Representation system tends to lead to multiplication of political parties and creation of coalition governments.
However, it may be pointed out that Proportional Representation system is very complicated and cumbersome. Moreover, it would promote, sharpen and consolidate parochial loyalties based on caste, community, religion and so on. It would also encourage further fragmentation ol political parties. It is particularly unsuited to large countries.
The countries following the Proportional Representation system include France, Greece, Israel, Spain, Switzerland and Austria.
There are various types of Proportional Representation system. These are:
LIST SYSTEM
The German model known as list system, followed for elections to the Lower House- Bundestag, is a mixture of direct elections to 50 per cent of the total seats from single member constituencies and Proportional Representation system on the basis of lists for the other half. Under this system, each voter has two votes, one to choose his constituency representative and the other to choose between party lists. In the direct election from single member constituencies, the candidates who poll votes (majority) are the winners. The seats are distributed among the parties in proportion to the total number of second votes polled by them in the entire electoral area. This, however, is subject to a condition that for entitlement to any seat from the party list, a party needs to obtain at least five per cent of the party list votes or should have won at least three seats at the Constitution's level.
Disadvantages
People do not have contacts with the Members of Parliaments (MPs) to be elected. The MPs are attached to the political parties.
People's interests are not properly tackled because the political parties discuss macro-policy only.
TWO-BALLOT SYSTEM
The two-ballot system followed in France and Russia for Presidency stipulates that only a candidate winning more than 50 per cent of the votes could get elected. A second round of voting is held if no candidate wins more than 50 per cent in the first round. In the second round, if necessary, only the
top two candidates are allowed to contest. This system helps to curb parochial tendencies in the political parties.
ELECTION COMMISSION-A CONSTITUTIONAL BODY
• Election Commission of India is a permanent Constitutional Body, established on 25th January 1950.
• Originally, the commission had only a Chief Election Commissioner. From 1S1 October, 1993, Election Commission is a three- member body, consisting of Chief Election Commissioner and two Election Commissioners.
• The President appoints Chief Election Commissioner and Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier.
• They enjoy the same status and service conditions as are enjoyed by the Judges of the Supreme Court of India.
• The Chief Election Commissioner can be removed from office in the same manner as the Judges of the Supreme Court by Parliament.
• All Election Commissioners have equal say in the decision making of the Commission.
• The Commission has a separate Secretariat at New Delhi.
• At the State level, the election work is supervised, subject to overall superintendence, direction and control of the Commission, by the Chief Electoral Officer of the State.
• Commission decides the election schedules for the conduct of elections, whether general elections or bye-elections.
• It also decides on the location of polling stations, assignment of voters to the polling stations, location of counting centres, arrangements to be made in and around polling stations and counting centres and all allied matters.
System of Election
• Elections to the Lok Sabha and also to Vidhan Sabhas are carried out using a first-past-the-post electoral system and take place every five years, unless called earlier.
• The country is split up into separate geographical areas/known as constituencies.
• The members of the Rajya Sabha are elected indirectly, by each State Vidhan Sabha using the single transferable vote system.
• The number of members returned by each State is roughly in proportion to their population.
• The Vidhan Sabhas (Legislative Assemblies) are directly elected bodies.
• Elections to the Vidhan Sabhas are carried out in the same manner as for the Lok Sabha election, with the States and Union Territories divided into single-member Assembly constituencies, and the first-past- the-post electoral system used.
• The Assemblies range in size, according to population.
Bye-elections
• If an elected member of Parliament or a State Legislature dies, or is disqualified, or resigns, or his election is set aside on an election petition, his vacancy in the concerned House is filled by holding a bye- election, in the same manner in which his election had originally been held.
• The bye-election is normally held within six months of the occurrence of the vacancy.
Advisory Jurisdiction & Quasi-Judicial Functions of EC
• Commission has advisory jurisdiction in the matter of post election disqualification of sitting members of Parliament and State Legislatures.
• Cases of persons found guilty of corrupt practices at elections which are decided by the Supreme Court and High Courts are also referred to the Commission for its opinion on the question as to whether such persons shall be disqualified for contesting future elections and, if so, for what period.
• The opinion of the Commission in all such matters is binding onthe President or, as the case may be, the Governor to whom such opinion is tendered.
Judicial Review of Election Commission's decisions
• The decisions of the Commission can be challenged in the High Courts and the Supreme Court of India by appropriate petitions.
• But, once the actual process of elections has started, the judiciary does not intervene in the actual conduct of the polls.
• Once the polls are completed and result declared, the Commission cannot review any result on its own.
• This can only be reviewed through the process of an election petition, which can be filed before the High Court of the State concerned, in respect of elections to Parliament and State Legislatures.
• In respect of elections for the offices of the President and Vice-President of India, such petitions can only be filed before the Supreme Court.
Constituencies & Reservation of Seats
• The country has been divided into 543 Parliamentary Constituencies, each of which returns one MP to the Lok Sabha.
• The size and shape of the parliamentary constituencies are determined by an independent Delimitation Commission.
• Boundaries are meant to be examined after the ten-yearly census to reflect changes in population, for which Parliament by law establishes an independent Delimitation Commission, made up of the Chief Election Commissioner and two judges or ex-judges from the Supreme Court or High Court.
• However, under a constitutional amendment of 1976, delimitation was suspended until after the census of 2001.
Reservation of Seats
• The Constitution puts a limit on the size of the Lok Sabha of 550 elected members, apart from two members who can be nominated by the President to represent the Anglo-Indian community.
• There are also provisions to ensure the representation of scheduled castes and scheduled tribes, with reserved constituencies where only candidates from these communities can stand for election.
• There are currently 79 seats reserved for the scheduled castes and 41 reserved for the scheduled tribes in the Lok Sabha.
Voting rights for citizens
• The democratic system in India is based on the principle of universal adult suffrage.
• Any citizen over the age of 18 can vote in an election to Lok Sabha or Vidhan Sabha (before 1989, the age limit was 21).
• The right to vote is irrespective of caste, creed, religion or gender.
• Those who are deemed unsound of mind, and people convicted of certain criminal offences are not allowed to vote.
• There has been a general increase in the number of people voting (voter's turnout) in Indian elections.
Voter Education
• For effective voters' Participation in the electoral processes, Election Commission in 2009, formally adopted Voter Education and Electoral participation as an integral part of its election management.
• The 25th of January is observed as the "National Voters' Day", since 2011, throughout the country. The punch line for this event is "Proud to be a Voter-Ready to Vote".
The Electoral Roll
• In India, the onus of registering electors is taken up by the State.
• The Election Commission sends officials enumerators, from house to house, to collect data about eligible electors, on the basis of which electoral rolls are prepared for each constituency, polling station wise.
• Only those people with their names on the electoral roll are allowed to vote.
• The electoral roll is normally revised every year to add the names of those who are to turn 18 on the 1st January of that year or have moved into a constituency and to remove the names of those who have died or moved out of a constituency.
Qualification required for contestants .
• Any Indian citizen who is registered as a voter and is over 25 years of age is allowed to contest elections to the Lok Sabha or Vidhan Sabhas.
• For the Flajya Sabha and Vidhan Parishads, the age limit is 30years.
• Candidates for the Rajya Sabha, Vidhan Sabha and Vidhan Parishads should be a resident of the same State from which they wish to contest.
Nominations, Withdrawals and Final Contestants .
• Under the electoral laws, 8 days, including the date on which the election notification is issued, are provided for filing nominations in each constituency.
• Scrutiny of nominations normally takes place on the day following the last date for making nominations.
Campaign
• During campaign, political parties put forward their candidates and arguments with which they hope to persuade people to vote for their candidates and parties.
• Parties issue manifestos detailing the programmes they wish to implement if elected to government.
• The official campaign lasts at least two weeks from the drawing up of the list of nominated candidates, and officially ends 48 hoursbefore polling closes.
Model Code of Conduct .
• During the election campaign the political parties and contesting candidates are expected to abide by a Model Code of Conduct evolved by the Election Commission on the basis of a consensus among political parties.
• The model Code lays down broad guidelines as to how the political parties and candidates should conduct themselves during the election campaign.
• The model code also prescribes guidelines for the ruling parties, either at the Centre or in the States, to ensure that a level playing field in maintained.
• Over the years, the Election Commission has been sternly enforcing the model code of conduct.
International Co-operation
• India is a founding member of the International Institute foi Democracy and Electoral Assistance (IDEA), Stockholm, Sweden.
• In the recent past, the Commission has expanded international contacts by way of sharing of experience and expertise in the areas of Electoral Management and Administration, Electoral Laws and Reforms. Election Officials from the national electoral bodies and other delegates from the other countries like
Russia, Sri Lanka, Nepal, South Africa, Bhutan, Australia, the United States and Afghanistan etc. have visited the Commission for a better understanding of the Indian Electoral Process.
• The Commission has also provided experts and observers for elections to other countries in co-operation with the United Nations and the Commonwealth Secretariat.
ELECTION MACHINERY IN INDIA
The Chief Electoral Officer (CEO)
• The Election Commission of India nominates or designates an Officer of the Government of the State/Union Territory as the Chief Electoral Officer in consultation with that State Government/Union Territory Administration.
• As per section 13A of the Representation of the People Act 1950, read with section 20 of the Representation of the People Act, 1951, the Chief Electoral Officer of a State/ Union Territory is authorised to supervise the election work in the State/Union Territory subject to the overall superintendence, direction and control of the Election Commission.
The District Election Officer (DEO)
• The Election Commission of India nominates or designates an Officer of the State Government as the District Election Officer in consultation with the State Government.
• As per section 13AA of the Representation of the People Act 1950, subject to the superintendence, direction and control of the Chief Electoral Officer, the District Election Officer supervises the election work of a district.
• Under section 26 of the Representation of the People Act 1951, the District Election Officer appoints the Presiding Officers and the Polling Officers. In the case of Union Territories, such appointments are made by the Returning Officers.
Returning Officer (RO)
• The Election Commission of India nominates or designates an officer of the Government or a local authority as the Returning Officer for each of the assembly and parliamentary constituencies in consultation with the State Government/Union Territory Administration. In addition, the Election Commission of India also appoints one or more Assistant Returning Officers for each of the assembly and parliamentary constituencies to assist the Returning Officer in the performance of his functions in connection with the conduct of elections.
• The Returning Officer of a parliamentary or assembly constituency is responsible for the conduct of elections in the parliamentary or assembly constituency concerned as per section 21 of the Representation of the People Act 1951.
Electoral Registration Officer (ERO)
• Under section 13B of the Representation of the People Act, 1950, the Election Commission of India, in consultation with the State / UT Government, appoints an Officer of the Government or the Local Authorities as the Electoral Registration Officer. In addition, the Election Commission of India also appoints one or more Assistant Electoral Registration Officers to assist the Electoral Registration Officer in the performance of his functions in the matter of preparation / revision of electoral rolls.
• The Electoral Registration officer is responsible for the preparation of electoral rolls for a parliamentary
/ assembly constituency
Presiding Officer
• The Presiding Officer with the assistance of polling officers conducts the poll at a polling station.
• Under section 20B of the Representation of the People Act 1951, the Election Commission of India nominates officers of Government as Observers (General Observers and Election Expenditure Observers)
for parliamentary and assembly constituencies. They perform such functions as are entrusted to them by the Commission. Earlier, the appointment of Observers was made under the plenary powers of the Commission. But with the amendments made to the Representation of the People Act, 1951 in 1996, these are now statutory appointments. They report directly to the Commission.
POLITICAL PARTIES
• Political parties are an established part of modern mass democracy.
• Political parties are registered with the Election Commission.
• Parties are required to hold organisational elections and have a written constitution.
Recognition and Reservation of Symbols
• According to certain parameters, set by the Election Commission parties are categorized by the Commission as recognized National or State parties, or registered-unrecognized parties.
Requirements for recognition as a National party
A political party shall be treated as a recognized National party, if-
• it secures at least six percent(6%) of the valid votes polled in any four or more states, at a general election to the House of the People or, to the State Legislative Assembly; and
• in addition, it wins at least four seats in the House of the People from any State or States. OR
• it wins at least two percent (2%) seats in the House of the People (i.e.. 11 seats in the existing House having 543 members), and these members are elected from at least three different States.
Conditions for recognition as a State party
A political party, other than a National party, shall be treated as a recognized state party in a state or states, if-
· It secures at least six percent (6%) of the valid votes polled in the state at a general election,
either to the House of the people or to the legislative Assembly of the state concerned; and
· in addition, it wins at least two seats in the Legislative Assembly of the state concerned.
OR
· it wins at least three percent (3%) of the total number of seats in the Legislative Assembly of the state, or at least three seats in the Assembly, whichever is more.
· How a party is classified determines a party’s right to certain privileged, such as access to electoral rolls and provision of time for political broadcasts on the state-owned television and radio stations and also the allocation of the party symbol.
Choice of symbol by candidates of National and State parties and allotment
· Party symbols enable illiterate voters to identify the candidate of the party they wish to vote for.
· National parties are given a symbol that is for their use only throughout the country.
· State parties have the sole use of a symbol in the State in which they are recognized as such.
· Registered-unrecognized parties can choose a symbol from a selection of ‘free’ symbols.
Recognised national parties
Name
Foundation
Year
Symbol
All India Trinamool Congress (AITC)
1998
Flowers & grass
Bahujan Samaj Party (BSP)
1984
Elephant
Bharatiya Janata Party (BJP)
1980
Lotus
Communist Party of India (CPI)
1925
Ears of corn & sickle
Communist Party of India (Marxist) (CPI-
M)
1964
Hammer sickle and star
Indian National Congress (INC)
1885
Hand
Nationalist Congress Party
1999
Clock
Limit on poll expenses
· There are legal limits on the amount of money a candidate can spend during the election campaign, for both parliamentary and Assembly constituencies and they have been raised in 2014.
· The spending limit for a Parliamentary Constituency in major states, stands at Rs.70 Lakh as against Rs.40 Lakh earlier.
· The limit for Assembly constituency in the major states moves from Rs.16 lakh to Rs.28 Lakh.
· Poll expense limits are not uniform across the country and vary according to the size, demographics and other factors of the smaller states and union territories.
SPLITS AND MERGERS AND ANTI DEFECTION LAW
· Splits, mergers and alliances have frequently disrupted the compositions of political parties.
· This has led to a number of disputes over which section of a divided party gets to keep the party symbol, and how to classify the resulting parties in terms of national and state parties.
· The Election Commission has to resolve these disputes, although its decisions can be challenged in the courts.
Anti-defection law
· Anti-defection Act (1985) as amended by the constitution (Ninety first Amendment) Act, 2003 lays down the condition regarding disqualification on ground of defection.
· The main provisions are-
i. An elected member of parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of parliament or a state Legislature would be disqualified on the ground of defection if
a) He voluntarily gives up his membership of such political party OR
b) Votes or abstains from voting in the house contrary to any direction of such party.
ii. An independent member of Parliament or a state Legislature will also be disqualified if he joins any political party after his election.
iii. A nominated member of Parliament or a State Legislature who is not a member of political party at the time of his nomination and who has not become a member of any political party before the expiry of six month form the date on which he takes his seat shall be disqualified if he joins
any political party after the expiry of the said period of six months.
iv. Provisions have been made with respect to mergers of political parties. No disqualification would be incurred when a legislature party decides to merge with another party and such decision is supported by not less than two-thirds of its members.
v. Special Provision has been made to enable a person who has been elected to the office of the speaker or the Deputy speaker of the House of people or of the Legislative Assembly of a state or to the office of the Deputy Chairman of the council of states or the Deputy chairman of Legislative council of a state, to sever his connections with his political party without
incurring disqualifications.
vi. The question as to whether a member of a House of Parliament or state Legislature has become subject to the disqualification will be determined by the presiding officer of the House where the quest ion is with reference to the presiding office himself it will be decided by a member of the House elected by the House on that behalf.
vii) The Chairman or the Speaker of a House has been empowered to make rules for giving effect to the provisions of the Tenth Schedule. The rules shall be laid before the House and shall be subject to modifications/disapproval by the House,
viii) Chairmen or the Speaker of a House has been empowered to direct that any willful contravention by any person of the rule:; made under Tenth Schedule may be dealt with in the same manner as a breach of privilege of the House.
Supervising Elections, Election Observers
• The Election Commission appoints a large number of Observers to ensure that the campaign is conducted fairly and that people are free to vote as they choose.
Counting of Votes
• After the polling has finished, the votes are counted under the supervision of Returning Officers and Observers appointed by the Election Commission.
• After the counting of votes is over, the Returning Officer declares the name of the candidate to whom the largest number of votes have been given as the winner.
Opinion Polls and Exit Polls
• Opinion poll help voters to think over candidates and issues, discuss and debate and make choices.
• By a set of Guidelines issued, the Election Commission stipulated that the results of opinion polls cannot be published during the period between two days before the start of polling and the close of poll in any of the constituencies.
• Results of exit polls can only be published or made otherwise known only after the end of polling hours on the last day of poll.
• In 2009, Election Commission put a blanket ban on publishing results of exit polls and opinion polls from 48 hours before voting till the end of all phases of the election.
• Recently, the Election Commission has proposed ban on opinion polls, starting from the notification of elections "30-45 days before the actual event" until the ballots are cast.
CONTROVERSY REGARDING ELECTRONIC VOTING MACHINE (EVM)
A controversy regarding the role of EVMs was created when the BJP leader Lai Krishna Advani questioned the efficiency and security of votes in the voting machines. He said that votes have been manipulated in some areas with necessary manipulations in the voting machines which are not fully proof from such manipulations.
Paper Ballot System
The paper ballot system was first adopted in the Australian state of Victoria in 1856 and in the remaining Australian states over the next several years The paper ballot system thereafter became known as the "Australian ballot."
Electronic Voting Machine
• An EVM retains all the characteristics of voting by ballot papers, while making polling a lot more fast. Being fast and absolutely reliable, the EVM saves considerable time, money and manpower. And, of course, helps maintain total voting secrecy without the use of ballot papers.
• An Electronic Voting Machine consists of two Units - a Control Unit and a Balloting Unit - joined by a cable. The Control Unit is with the Polling Officer and the Balloting Unit is placed inside the voting cubicle. Very similar in concept to the conventional voting, Ballot Unit replaces the Ballot Paper; Control Unit replaces the Ballot Box. The Polling Officer in-charge of the Control Unit presses the Ballot Button. This enables the voter to cast his vote by pressing the blue button on the Balloting Unit against the candidate and symbol of his choice.
• As of today, a single ballot unit takes in the names of 16 candidates. And thus, by connecting four ballot units the EVM can accommodate a total of 64 candidates in a single election. In case the number exceeds 64 (rather rare) the authorities have to use the old paper ballot method.
• To commence polling, the polling officer carries out a 'mock poll' to satisfy polling agents or candidates that the EVM is functioning properly
• An EVM can record a maximum of 3840 votes. As normally the total number of electors in a polling station do not exceed 1500, the capacity of EVMs is more than sufficient.
Advantages
• The evil of booth-capturing, if one means, taking away or damaging EVMs, cannot be prevented as they could also be forcibly taken away or damaged by miscreants. But booth capturing as a case of miscreants intimidating the polling personnel and stamping the ballot papers on the symbol and escaping in a matter of minutes, can be prevented by the use of EVMs. The Polling Officers can always press the "close" button as soon as they see some miscreants inside the polling station. It will not be possible to record any vote when once the 'close' button is pressed and this will frustrate the efforts of the booth capturers.
• The most important advantage is that the printing of lakhs of ballot papers can be dispensed with, as only one ballot paper is required for fixing on the Balloting Unit at each polling station instead of one ballot paper for each individual elector. This results in huge savings by way of cost of paper, printing, transportation, storage and distribution.
• Counting is very quick and the result can be declared within 2 to 3 hours as compared to 30-40 hours, on an average, under the conventional system.
• There are no invalid votes under the system of voting under EVMs. The choice of the electorate is more correctly reflected when EVMs are used.
• The use of EVMs quickens the pace of poll.
• The Control Unit can store the result in its memory for 10 years and even more in case any recount is ordered.
• It cannot be opened or modified by anyone without damaging the chip and therefore the whole system.
• It is much easier to transport the EVMs compared to ballot as they are lighter, portable and come with plastic carrying case:.
• Voting by EVMs is simpler compared to the conventional system
• It is not possible to vote more than once by pressing the button again and again. The EVMs ensure the principle of "one man, one vote".
Disadvantages.
However, EVMs can show how each polling station has voted which might result in neglect of the area which has not voted for the elected candidate as far as development programmes are concerned According to Election Commission, the mixing system of counting can avoid this. The result from each EVM can be fed into a Master Counting Machine and only the total result of a Constituency will be known and not the result in each individual polling station.
Demand of EVM from abroad
The Namibian government has placed orders for the voting machines; while Ghana, South Africa and Nigeria have evinced interest as have neighbours Sri Lanka and Bangladesh. Bhutan got them for its elections last year and Nepal has acquired them too.
CHALLENGES PERTAINING TO ELECTORAL SYSTEM
• Competitive nature of elections.
• Poor infrastructure, limited resources and organizational limitations.
• High cost involved organizing the elections. E.g. preparation of electoral rolls, expenditure on electoral booths and personnel involved etc.
• High cost involved in deployment of police and security forces for order maintenance during the elections.
• Difficult terrain and isolated geographical conditions require special arrangements for holding elections.
E.g. various modes of transport, security of staff involved etc.
• Threats by insurgents.
• Protecting the security of voters and candidates.
• Criminal background of contestants.
• Use of muscle and money power to buy votes.
• Booth capturing, bogus voting behavior and election frauds.
• Violence during election process.
• Misuse of police agencies by political leaders to settle personal scores and intimidate their opponents.
• Misuse of media and Paid news menace.
• Political parties and their campaigns are exaggerating differences between religions, castes, regions and languages.
INITIATIVES TAKEN BY ELECTION COMMISSION TO IMPROVE ELECTORAL SYSTEM
The Election Commission has taken several initiatives. Notable among these are
• A scheme tor use of State owned Electronic Media for broadcast/ telecast by Political parties.
• Restrictions on Opinion and Exit Polls.
• Checking criminalization of politics.
• Computerization of electoral rolls.
• Providing electors with Identity Cards.
• Deployment of Electronic Voting Machines.
• Simplifying the procedure for maintenance of accounts and filling of the same by candidates.
• Measures for strict compliance of Model Code of Conduct, for providing a level playing field to contestants during the elections.
With ever increasing voter turnout number, it is evident that Indian voter has shown great faith in his vote for democracy; however, the election system has several evils and distortions. Healthy and effective democracy and serious electoral distortions cannot co-exist and every evil found in the electoral process should be immediately rectified. Diagnosis should lead to treatment otherwise the quality of democracy will deteriorate. Clean elections and open, accountable, transparent and inclusive politics is the need of the hour and it is still a long way to go.
VOTER VERIFIABLE PAPER AUDIT TRIAL SYSTEM (VVPAT)
• Election Commission had decided to use VVPAT in a by-elections in Noksen Assembly constituency in Nagaland on Pilot basis in September, 2013 election rules 1961.
• The VVPAT were used in Mizoram in Assembly polls in November 2013. However, out of 217, 21 VVPAT's were found to be defective.
• It is an attachment to the Electronic Voting Machine (EVM) which is used for voting and Counting.
• Presently counting is done through the electronic signals registered in the machine when each voting takes place.
• When VVPAT is used the voter will get the print out of their ballot which will have the name of elector, election symbol and the serial numbers of the elector. However, this paper can't be taken home.
• Thus in case of election dispute it will make physical verification possible making elections more fair and transparent.
• It is manufactured by Bharat Electronics limited and Electronics corporations of India (ECIL) in India.
Problems with VVPAT
• It is labour intensive and hardware is expensive
• Introduction of malware can cause misrecording of voter's selection.
• 'Ballot stuffing' can happen where by additional ballots can be printed without actual voting can take place. It will be difficult to know which is genuine ballot.
• When the order of ballot is matched with sequence of the paper (reel to reel system) privacy of voter is jeopardized It can lead to voter intimidation and vote selling.
NOTA (None of the Above Option)
• As a part of the ballot paper it was introduced in the 5 poll bound states in November 2013.
• Its purpose was to allow voters to exercise their right to vote without being compelled to select any particular candidate.
• However even if NOTA option wins more votes, the candidate securing maximum votes wins. In this way this option not have much impact except letting citizens exercise their right in vote.
TOTALISER MACHINE FOR COUNTING VOTES
• The Election Commission of India has long been mulling the use totaliser machines during elections to mask booth-wise voting patterns. The Centre had expressed reservations over the use of such machines fearing they may lead to outflow of data from the electronic voting machines (EVMS) with the Supreme Com I directing the EC to address the apprehensions.
• These machines increase the secrecy of voting by counting votes polled at 14 polling booths together, as against the current practice of announcing booth-wise results. According to the Election
Commission, the identification of area-wise voting trends could encourage candidates and political parties to target areas where they got less votes.
• Before the introduction of electronic voting machines, counting of votes was done after mixing all ballot papers, which prevented the disclosure of voting patterns in every booth.
• The EC first approached the Law Ministry in 2008 with the proposal to amend the Conduct of Election rules to introduce totalise! machine on counting day. Last August, a team of Union Ministers — Rajnath Singh, Arun Jaitley, Manohar Parrikar, Nitin Gadkari and Ravi Shankar Prasad — was constituted on the direction of Prime Minister Narendra Modi to deliberate on the idea.
• Law Minister Ravi Shankar Prasad, in a letter dated November 18, 2016, informed Chief Election Commissioner Nasim Zaidi that the Committee of Ministers headed by Home Minister Rajnath Singh did not accept the demand to introduce totaliser machines for counting of votes.
ELECTORAL REFORMS
• The holding of regular and highly competitive free, fair and fearless elections in India has become a very difficult task for Election Commission.
• Several major defects have come in the path of electoral system in India, e.g. money power, muscle power, criminalizafion of politics, poll violence, booth capturing, communalism, castism, non-serious and independent candidates etc.
• The important issues of electoral reforms which need attention are outlined as-
Expensive Elections and misuse of money power
• Role of money power in elections has assumed a very alarming level and electoral competition has been reduced to the level of competition among parties on the basis of their capacity to spend money to inference the voters.
• It also leads to all round corruption and contributes mainly to the generation of black money economy.
Compulsory maintenance of accounts by political parties and audit thereof by agencies specified by Election Commission.
• There is a need for transparency in the matter of collection of funds by the political parties and also the manner in which the funds are expended by them.
Criminalization of politics
• Weeding out of criminals is a major issue as "law breakers" cannot be "law makers".
• As political parties have become unsure about their success in the elections, and they have taken resort to show their raw physical power to the helpless voters especially belonging to the Dalit castes and women.
• By 'booth capturing', the musclemen or mafia leaders or professional criminals put fake and fraudulent ballot papers in the ballot box in favour of one or the other contesting candidate.
• It has been suggested by the Election Commission that any person who is accused of an offence punishable with imprisonment for 5 years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed by the competent court.
• The Supreme Court's Judgments of May 2, 2002 and March 13, 2002 have made it mandatory for the candidates who decide to contest the elections to (a) mention about pending criminal cases against them;
(b) mention past convictions, if any and (c) reveal their financial and educational status.
Misuse of Government Machinery
• The misuse of official machinery takes different forms, such as issue of advertisements at the cost of government and public exchequer highlighting their achievements, disbursements out of the discretionary
funds at the disposal of the ministers, use of government vehicles for canvassing etc. This misuse gives an unfair advantage to the ruling party at the time of elections
Non-Serious Candidates in Political Parties
• In recent years there has been a steady increase in the number of candidates in elections.
• The number of candidates has swelled due to the participation of Independents. They contest elections light heartedly and lose their deposits.
• The multiplicity of candidates causes inconvenience to election authorities in the management of elections. This non-seriousness of candidates has to be checked.
Negative Voting
• The voting public needs the option of the negative vote.
• "Choosing between the lesser of two evils" is a commonly heard complaint among voters. So, voters should be allowed to cast either positive or negative votes.
• A negative vote subtracts from a candidate's positive vote total. For each office, the voter could choose to either vote for a candidate or against a candidate. For each candidate, a net support total would be calculated by subtracting the "Against" votes from the "For" votes.
• The winner would be the candidate with the highest amount of net support.
Legislators' qualifications
• There is a view that educational qualification should be prescribed for membership of the Lok Sabha and the State Legislative Assembling and a contestant should have the minimum qualification of being in graduate.
State Funding of Elections
• Political parties act as channels for participation of citizens in the governance of their country. And for performing such public function of great importance, they need to be financed from public fund:.
• Contributions to such funds of political parties from State would make them less dependent on private contributions, which mostly come from big industrial houses and industrial houses on quid pro quo basis, and this would serve a great public cause and interest of removing corruption.
• In contravention to this, it is argued that the State funds should be utilized for the welfare and common good of the people and not for the benefit of a few following political pursuits.
• It would encourage mushroom growth of parties as such grants would be a great incentive for even non- serious and frivolous organizations to call themselves as political outfits.
COMMITTEES AND PANELS SET UP BY GOVERNMENT FOR ELECTORAL REFORMS
• Electoral reforms have been considered to be a continuous process and the election law was amended from time to time to correct the flaws in the electoral process.
• A Committee under the chairmanship of Dinesh Goswami (1990) was constituted to go into the various aspects of the electoral reforms
• The main recommendations of the Committee were as follows-
• A three-member election commission and appointment of the Chief Election commissioner in consultation with the Chief Justice of India and the leader of the opposition and the appointment of other Election commissioners in consultation with CEC.
• A fresh de-limitation of the constituencies on the basis of 1981 census and rotation of seats reserved for SCs and STs.
• Issuing of multi-purpose photo identity cards to voters.
• Disallowance of contesting by candidates from more than two constituencies.
• The raising of security deposits of independent candidates and forfeiture of security deposits of all candidates failing to secure at least 1/6th of the votes polled.
• Statutory status to the model code of conduct formulated by the Election Commission.
• Introduction of electronic voting machine.
• Legislative measures against booth-capturing, rigging and intimidation of voters.
• Limited state-funding in kind to recognized political parties, to begin with.
Justice V. R. Krishna Iyer Committee (1994) recommended that a law should ensure inner-party democracy in all political parties. It also reiterated a legal sanction for proper audit and accounts.
• Indrajit Gupta Committee (1998) was set up to go into the central I issue of election funding. Its main recommendations were-
• State funding of Elections, i.e for grant of State subvention to political parties, is fully justified in order to establish such conditions where even the parties with modest financial resources may be able to compete with those having higher resources, on a level playing field and with a fair chance of success.
• State funding should be confined to only the parties recognized as National or State parties by the Election Commission of India and to the candidates set up by such parties.
• Given the budgetary constraints and the present financial stringency only part of the financial burden of political parties may be shifted to the State, for the present. Gradually, more and more of their expenses' burden can be progressively shifted to the State so that ultimately all their legitimate expenses become a charge on the State.
• Any State funding should be in kind, and not in cash.
· Justice Kuldeep Singh Panel (2002) recommended that-
• To prevent criminalisation of politics, the candidates with a criminal background or those facing substantial criminal charges framed by a court be debarred from contesting elections.
• Election Commission should bring effective changes in the model code of conduct to exclude candidates from contesting elections who have criminal proceedings pending against them.
• More effective laws be created that will prevent criminals from entering the political process.
• Special courts and benches to try cases against legislators and other high profile people should be set up for speedy trials.
LAW COMMISSION'S RECOMMENDATIONS ON ELECTORAL REFORMS
Stability and genuine representative character of the electoral system have been the concern of the law makers as well as scholars for a long time in India, as the costs of elections are growing and repeated elections can make people apathetic and policy making difficult. For example, since 1967, the cost of conducting Lok Sabha elections went up by 8000%, to about Rs. 1200 crores in 1999. Since 1996 till 1999, the country saw three Lok Sabhas and five Prime Ministers coming and going in succession. The country cannot afford political instability. Therefore, the Law Commission in its 170th report, offered some structural reforms to stabilise the political system.
Firstly, no party with a popular vote of less than 5 per cent should have its representatives in the Lok Sabha. It eliminates small parties and will force them to ally and eventually merge with the big parties, thus paving the way for a broad 'two front' party system, which will be relatively stable. Presently, the 5 per cent criterion will only be satisfied by the Congress (I), BJP and CPI (M) in the Lok Sabha while others will be disqualified. That is, 44 per cent of the national votes (support of the parties, other than the big three) will be disqualified in the 12th Lok Sabha. But once the reform is accepted, the adjustments-electoraland ideological-will see genuine stability come about. The rule is in force in Germany and is said to have prevented proliferation of political parties.
The Commission suggested that if a candidate is elected from a constituency, but his party does not secure the mandatory 5 per cent of the valid popular votes, the candidate coming second is to be preferred to the former provided the latter's party attains the 5 per cent vote.
Secondly, the Commission recommended partial adoption of the List System to minimise the mismatch between the votes polled and the seats secured. It wants the strength of the Lok Sabha and the State Assemblies increased by 25 per cent, the entire increased numbers being filed by List System. In the existing 'first past the post' system based on territorial constituencies, the candidate who gets relative majority is declared elected even though he secures small percentage of the valid vote. Thus, often, the candidate does not represent the constituency genuinely. Caste and other considerations can tilt the balance. In the List System, each party will be asked to nominate certain number of candidates, depending upon the total seats available for the List System. These candidates must conform to the standards laid down and should not contest in the 'first past the post' mode. The list is to be submitted at the time of the elections for the 'first past the post' system. Once results are declared and the popular votes of each recognised party calculated, the parties are given seats accordingly. This is to offset the imbalance in the first past the post1 system. The list system fulfils two important functions.
• helps intelligentsia get elected.
• improves the representative character of the elected bodies.
It must be remembered that the BJP and the Congress (I), more or less, secured the equal number of popular votes in the 12th Lok Sabha, but the number of seats won by each differed vastly. The list system is not meant as a substitute to the 'first past the post' system, but only meant to improve upon it.
Very significantly, the Commission suggested that no candidate can be elected, unless he secures 50 per cent plus one votes. In case no contestant gets such a majority in the first count, a 'run off election is to be held. With the introduction of the Electronic Voting Machines (EVMs), the exercise is neither costly nor administratively difficult. It will eliminate the practice of vote bank politics and force the parties to come together.
Besides, the Tenth Schedule is to be amended to bring in a definition of 'politicalparty' that should include a pre-election coalition or front of parties that should inform the Election Commission (EC) by a prescribed day that, they have made a front.
The Commission suggested changes in Rule 198 of the Rules of Procedure and Conduct of Business in the Lok Sabha to ensure stability of the system, (These rules are made by the Speaker in consultation with the political parties in the House).
To begin with, it is suggested that the no-confidence motion cannot be passed, unless one electing an alternative Prime Minister is also endorsed so that there is continuity and the threat to the survival of the House is removed (Constructive vote of confidence).
Similarly, after the introduction of a no-confidence motion, a 2-year gap should be made mandatory for the next such motion.
Banning of independent candidates is also recommended as they divide the votes and destabilise the system. The proposal, however, attracted criticism as it attacks the fundamental individual freedom to contest.
Insertion as Part 2A in the Representation of Peoples' Act is recommended so that there is internal democracy in the parties that fight for democracy in the external system. The Commission quotes the Supreme Court judgement in the Bommai case (1994) and says that when democratic accountability and secularism form the core of our constitutional system, it is unthinkable that parties without inner democracy can exist. It suggests that the executive committee of the party must be elected. Sub- committees must be elected by the members of the executive committee. The Election Commission must select candidates for the elections on the basis of the recommendations and resolutions of the local units.
Deletion of Paras 3 and 4 in the Anti-Defection Law is suggested to outlaw splits and mergers.
Strict regulation of political parties and their accounts is also suggested.
NOTA (NONE OF THE ABOVE)
The Supreme Court, in September 2013, upheld the right of voters to reject all candidates contesting the elections, saying it would go a long way in cleansing the political system of the country. The apex court directed the Election Commission to have an option of 'None Of The Above' (NOTA) on the electronic voting machines (EVMs) and ballot papers in a major electoral reform.
None of the Above (NOTA), also known as "against all" or a "scratch" vote, is a ballot option in some jurisdictions or organizations, designed to allow the voter to indicate disapproval of all of the candidates in a voting system. It is based on the principle that consent requires the ability to withhold consent in an election, just as they can by voting no on ballot questions.
Entities that include "None of the Above" on ballots as standard procedure include India ("None of the above"), Greece, the U.S. state of Nevada (None of These Candidates), Ukraine, Spain, and Colombia. Russia also had such an option on its ballots until it was abolished in 2006. Bangladesh introduced this option in 2008.Pakistan introduced this option on ballot papers for the 2013 Pakistan elections but later the Election Commission of Pakistan rejected this.
When 'None of the Above' is listed on a ballot, there is the possibility of NOTA receiving a majority or plurality of the vote, and so "winning" the election. In such a case, a variety of formal procedures may be invoked, including having the office remain vacant, having the office filled by appointment, re-opening nominations or holding another election (in a body operating under parliamentary procedure), or it may have no effect whatsoever, as in India and the US state of Nevada, where the next highest total wins regardless.
However, before the NOTA option came in existence, people casting negative votes were required to enter their names in a register and cast their vote on a separate paper ballot.
Under Section 49 (O) of the Conduct of Elections Rule: 1961 a voter could enter his electoral serial number in Form 17A and cast a negative vote. The presiding officer would then put a remark in the form and get it signed by the voter. This was done to prevent fraud or misuse of votes.
This provision was, however, deemed unconstitutional by the SC as it did not protect the identity of the voter.
This raises a question, How are 49(0) and NOTA different?
The Section 49 (O) stood annulled after the SC cleared the NOTA provision. It gave the poll officials a chance to find out the reason behind the rejection of a candidate through the voter's remarks in Form 17A. Through NOTA, the officials cannot find out the reason for the rejection. Moreover, it protects the identity of a voter, thus keeping the concept of secret balloting intact.
Also the issue of its significance raises question since it may not have any electoral value.
The SC said negative voting would even encourage people who are not satisfied with any of the candidates to turn up to express their opinion and reject all contestants.
"Negative voting will lead to a systemic change in polls and political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject a candidate is a fundamental right of speech and expression under the Constitution," said a bench headed by then Chief Justice of India, P Sathasivam.
The bench also pointed out that the system of negative voting existed in several other countries.
Even in Parliament, the MP:. have the option to abstain during a vote.
ELECTIONS AND CRIMINALS
The N N Vohra Committee, in mid-eighties, lamented the growing nexus between the politician and the criminal. The Sohani Committee appointed by the MP Government, whose report was released recently confirms the same. The obsession with the 'winnability' aspect of the election, irrespective of the means employed and the vulnerability of the defenceless electorate are the main causes for the criminalization of the electoral process, and the entry of the criminals into the legislatures. The Election Commission says that there were 180, 520and 350 contestants with criminal background in the 12th Lok Sabha elections in AP, UP and Bihar respectively.
The Law Commission says that mere framing of charges c. enough to disqualify a candidate. Further, it says that the nature of punishment must be enhanced for election-related crimes mentioned in the Representation of Peoples' Act and the Indian Penal Code. The nomination paper must be changed to have the candidate confess to the criminal cases, if any.
The responsibility of weeding out criminals from the legislative chambers is primarily that of the political parties and can be exercised as follows:
• deny tickets to those with a criminal background.
• if a candidate is charge sheeted, that is enough to deny him ticket and he need not be convicted. That is, if charges are framed after a judicial inquiry and the crime can attract electoral disqualification. The candidate should not be given ticket.
The above recommendations require an amendment to the Representation of Peoples' Act, which today sanctions disqualification for six years in case of conviction (not charge sheeting) in the following three cases
• crimes related to social issues like untouchability, fomenting inter religious tensions, rape etc.
• in the use of crimes like dowry, sati etc, it is not enough that the candidate is convinced, but must be convicted at least for 6 months 'MI tii.it he may be disqualified.
• any sentence of imprisonment for two years.
The EC revised the preform a about the details of the contestant regarding whether he has ever been charge sheeted, convicted etc so that these on bail and having appealed against conviction can be barred from contesting.
The Ethics Panel of Rajya Sabha gave a set of recommendations to establish a clean and credible legislature in 1998 and one of the recommendations is that the parties should not field candidates of ‘dubious’ past.
• Some amendments have been made to the electoral laws, much still needs to done so that the Parliament and other Legislative bodies serve as balanced and effective instruments of democracy.
STEPS TAKEN BY THE GOVERNMENT
• The various reports of Election Commission and a number of formal informal group discussions at various forums and by individuals have pointed out the defects in the electoral system.
• The Joint Parliamentary Committee on Amendments to Election law (1971-72), the Tarkunde Committee Report of 1975, the Goswami Committee Report of 1990, The Constitution Bill 1994 and the Representation of the People (Second Amendment) Bill, 1994, the election Commission's Recommendations in 1998 and Indrajit Gupta Committee Report of 1998 etc. produced comprehensive set of recommendations regarding electoral reforms.
• A few reforms have been implemented but a lot has to be done.
REPRESENTATION OF PEOPLE (AMENDMENT) ACT, 2010
• The Representation of the People (Amendment) Act, 2010 which seeks to amend the Representation of the People Act, 1950 was enacted and published in the Gazette of India on the 22nd September, 2010. The amending Act confer voting rights to citizens of India who are absenting from their place or ordinary residence in India owing to their employment, education or otherwise outside India (whether temporarily or not). Vide the amending Act, they shall be entitled to have their names registered in the electoral roll in the Assembly/Parliamentary constituency in which their place of residence in India as mentioned in their passport is located.
• The Central Government, in consultation with the Election Commission prepared and published the Registration of Electors(Amendment) Rules, 2011 on 3rd February, 2011. The Central Government has issued necessary notification bringing the Act into force on the 10 February, 2011. The overseas Indians can now furnish the documents self attested by them.
Suggestions
The following suggestions should be taken into consideration for making electoral system free and fair manner.
i) At Present, the Election Commission does not have independent staff of its own. Now, when the elections have ceased to be a mere periodical affair, it is desirable that the EC should have a permanent electoral administration with adequate disciplinary control over the staff.
ii) Efficient Electoral Commission is a requirement of the day to conduct free and fair elections. Democracy and fearless elections cannot exist without each other. To stop unfair practices in elections like rigging by using official machinery and to ensure existence of democracy, following methods or means should be adopted.
• Political corruption should be stopped by providing funds to genuine candidates through political parties whose account should be auditable.
• Candidate involving in corruption should be disqualified.
• For having a true democracy the registration and recognition of the political parties should be fair and without any kind of influence.
• Mass Media should play a non-partisan role in election and as a safeguard of democracy.
• Every voter must be free to vote without any fear of consequences and without being unduly influenced by anyone by improper means and inducement or pressure of any kind.
• The secrecy of voters and preference to any candidate should be maintained. The election machinery must function honesty and impartially at every stage.
• Preparation of electoral rolls by EC is to be supervised at village level and certificates from officials who prepare electoral rolls to the effect that the electoral rolls have been thoroughly revised.
• Unearth and confiscate black money, which is widely used for buying votes.
• Make politicians as well as voters law abiding.
• Strictly apply the Code of Conduct and punish those who violate it. Keeping in mind the relevance of elections in renewing the legitimacy of the democratic political system. It is expected that the distortions adversely affecting the conduct of free and fair elections will be immediately controlled and eliminated if by nothing else, than, at least, by making suitable changes in the law governing the conduct of elections. Now, time has come to provide some hard rules and laws in our constitution to keep away those anti- social evils from legislative and parliament.
COMPULSORY VOTING
Compulsory voting is a system in which electors are obliged to vote in elections or attend a polling place on voting day. If an eligible voter does not attend a polling place, he or she may be subject to punitive measures such as fines or community service. As of August 2013, 22countries have laws for compulsory voting and 11 of these 22 countries enforce these laws in practice.
With the Gujarat Local Authorities Laws (Amendment) Act, 2009 received the Governor's assent in November 2014, the issue became important in India.
The Act introduces an 'obligation to vote' at the municipal corporation, municipality and Panchayat levels in the state of Gujarat. Following the amendments, it shall now be the duty of a qualified voter to cast his vote at elections to each of these bodies. This includes the right to exercise the NOTA option. The Act empowers an election officer to serve a voter notice on the grounds that he appears to have failed to vote at the election. The voter is then required to provide sufficient reasons within a period of one month, failing which he is declared as a "defaulter voter" by an order. The defaulter voter has the option of challenging this order before a designated appellate officer, whose decision will be final.
The draft rules also mentioned 11 conditional relaxations for the elderly, students, those suffering from illness, mourning a death or attending a wedding on the day.
A number of countries around the world make it mandatory for citizens to vote. For example, Australia mandates compulsory voting at the national level. The penalty for violation includes an explanation for not voting and a fine. It may be noted that the voter turnout in Australia has usually been above 90%, since 1924. Several countries in South America including Brazil, Argentina and Bolivia also have a provision for compulsory voting. Certain other countries like The Netherlands in 1970 and Austria more recently, repealed such legal requirements after they had been in force for decades. Other democracies like the UK, USA, Germany, Italy and France have a system of voluntary voting. Typically, over the last few elections, Italy has had a voter turnout of over 80%, while the USA has a voter turnout of about 50%.
Argument raised against 'Compulsory Voting'
One of the most vocal opponent of Compulsory voting has been the Election Commission itself.
None other than the then election commissioner H. S. Brahma raised a question about possibility of penalising a such a large chunk of the eligible voters for not exercising their right to vote. Among the other arguments raised, is, the right of not to vote as was raised by the previous Governor of Gujarat. This situation made the role of judiciary and judicial interpretation extremely important in such matters.
Finally in a blow to the state government, the Gujarat High Court, in August 2015, stayed the legislation recently passed for making voting compulsory in local body elections. Earlier this month, the government had also announced Rs 100 as fine to those who would skip voting. The division bench led by Acting chief justice Jayant Patel stayed the law.
A petition was moved by a senior advocate of Gujarat High Court KR Koshti, challenging the government's move saying that voting is a right of citizens and not a duty. The petition also cited various sections of Peoples' Representation Act to challenge the government's legislation.
In his interview on compulsory voting, Prime Minister of India, in addition to these familiar arguments, also cites four other reasons why voting should be made compulsory: it will reduce the cost of
elections; it will reduce the role of black money in elections; it will draw in what he calls the "neutral voter"; the provision of Nota (none of the above) anyway gives voters the option of rejecting all the candidates if they find none to their liking, and hence, compulsory voting makes the voter exercise his political choice to the fullest.
We will have to wait a little to find out whether these arguments hold their ground or gets rejected by the 'system'.
CHAPTER- 20
Centre-State Relations
The distribution of power is essential for federalism The object for which a federal State is formed involves a division of authority between the National Government and the separate states. The one is not subordinate to the other in its own field, the authority of one is coordinate with that of the other. In fact, the basic principle of federation is that the legislative, executive and financial authority is divided between the Centre and State not by any law passed by the Centre but by constitution itself.
A. LEGISLATIVE RELATIONS
The Constitution of India makes two-fold distribution of legislative powers;
1. With respect to territory
2. With respect to subject-matter
Concurrent List
Our constitution makers followed the Canadian scheme and opted for a strong centre. However, our constitution makers added one more list i.e. concurrent list. Concurrent list is not found in most of the federal states because these are the items which should be in the state list. We have created the concurrent list to have uniformity of law throughout the country in these subjects. The concurrent list also serve as a device to avoid excessive rigidity to two list distribution.
Union list- 100 items (foreign affairs, finance...) State - 61 items
Concurrent - 52 items
Residuary Power
Art.248 vests the residuary power in parliament, it says that parliament has exclusive power to make any law with respect to any matter not enumerated in state and concurrent list. This is a departure from other constitutions, i.e. the US & Switzerland. This reflects the learning of the constitution-makers for strong Centre.
Principles of interpretation of lists
The powers of centre and states are divided They can't make lawn, out side their allotted subjects. It is true that a scientific division in not possible and questions constantly arise whether a particular subject falls in the sphere of one or the other government. This duly in a federal constitution is vested in the Supreme Court of India. The Supreme Court has evolved the following principles of interpretation in order to determine the respective power of the Union and the state under the three Lists:
1. Predominance of the Union List: If there is overlapping between the Union and the State List it is the Union List which is to prevail over the State List. Also the same case of Union list and concurrent list, if they overlaps.
2. Each Entry to be interpreted broadly: Supreme Court should try, as far as possible, to reconcile entries and to bring harmony between them. When this is not possible only the overriding power of the Union Legislature should be applied.
3. Pith and substance: Within their respective spheres, the Union and the State legislatures are made supreme and they should not encroach into the sphere reserved to the other. If a law passed by one encroaches upon the field assigned to the other Court will apply the doctrine of pith and substance to determine whether the legislature concerned was competent to make it
Meaning: in order to ascertain the true character of legislation, one must have regard to the enactment as a whole to its object and to its scope and effect of its provisions.
4. Colourable Legislation: The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers. It is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the power of that state to legislate, the legislature can't legislate in that manner. So the whole doctrine of colourable legislation is based upon maxim "you can't do indirectly what you cannot do directly".
Parliament's power to Legislate on State Subjects Though in normal times the distribution of powers must be strictly maintained and neither the State nor the Centre can encroach upon the sphere allotted to the other by the Constitution, yet in certain exceptional circumstances the above system of distribution is either suspended or the powers of the Union Parliament are extended over the subjects mentioned in the State List.
Article 249: Centre can legislate in state list or any matter inside the state list, when it is necessary or expedient in the national interest
Article 250: During National Emergency parliament shall have power to make laws on all matters in state list. Such a law, however, shall cease to have effect on the expiration of six months after the proclamation of emergency has ceased to operate.
Article 252: If the legislature of two or more states request the centre to enact a common law for them on any matter in state list, the parliament is empowered to do that. But such a law can be amended or repealed by parliament.
Article 253: Parliament's power to legislate for giving effect to treaties and International agreement.
When article 356 is imposed, state legislature is either suspended or dissolve. During 356 parliament is empowered to makes law in the state list.
It is submitted that, these provision are merits rather than the demerits of the Indian constitution. They enabled the centre to legislate in exceptional circumstances on the state subject without amending the constitution and thus introducing a certain amount of flexibility in the scheme of distribution of powers.
Centre's Control over State Legislation
1. Art. 31-A. State can enact law for taking over private property. But only on the assent of President.
2. Art. 37-6. Land reforms of the state can be placed in the 9th Schedule. But this can be done only when Parliament approves it
3. Art. 200.
4. Art. 288. Exemption from taxation by States in respect of water or electricity in certain cases.
(1) Save in so far as the President may by order otherwise provide, no law of a State in force immediately before the commencement of this Constitution shall impose, or authorize the imposition of, a tax in respect of any water or electricity stored, generated, consumed, distributed or sold by any authority established by any existing law or any law made by Parliament for regulating or developing any inter- State river or river-valley.
5. Art 304. State can impose restriction on the freedom of Inter-state Trade, but on the recommendation of President.
B. ADMINISTRATIVE RELATIONS
The success and strength of a federal polity depends upon the maxim of cooperation and coordination between the governments. In fact, the adjustment of administrative relations between the Union and the States is one of the complicated problems in a federal system of Government. The framers of the Indian Constitution, therefore, decided to include detailed provisions to avoid clashes between the Centre and the States in the administrative domain.
In USA, the Federal and the State administrations run parallel to each other and so no one has direct or indirect power over the other. But in India, the case is different. The Constitution has a strong bias towards the Centre to make it strong. The Central administration prevails over the State administration. . The executive power of the State should be so exercised as to ensure compliance with the laws of the Union Parliament (Art. 256) and not impede or prejudice the executive power of the Union (Art. 257).
• If the State does not comply with the directives of the Centre, the latter may invoke Art. 356 and take- over the administration of the State to itself (President's rule).
• Under Art. 258(2), the Parliament is given power to use the State machinery to enforce the Union laws.
• In case of any untoward happenings, officials of the All-India Services [e.g. IAS, IPS and IFS (Forest)] can only be suspended by the State. The State cannot take more strongest actions.
• The Centre can deploy military and para-military forces in a State even against the wishes of the State Government. In case of disputes related to waters of inter-State river or river valleys, the Parliament has power to adjudicate. Under this power, the Parliament has constituted a 3-member River Water Tribunal whose award, if published by the Union Government in the Gazette, is binding on the concerned States (Art. 262).
• For coordination between States, the President is empowered under Art. 263 to constitute a Council to resolve the disputes and or to discuss subjects of common interest between the States inter se and between the States and the Union. Exercising this power, the President has so far constituted three such Councils -
(i) Central Council of Health; (ii) Central Council of Local Self-government; and (iii) Transport Development Council.
Despite best efforts on the part of the framers of the Indian Constitution to include detailed provisions so as to avoid clashes between the two sets of Government there are certain grey areas which give rise to possibilities of greater conflict. Few such areas are as follows:
1. Appointment of Governors: Governors of States, unlike the President of India, exercise few vital discretionary powers which have bearing on the existence of State governments. Despite this fact, States have not been given any role in the appointment of the Governors. More often than not Governors act as agent of the Union Government. Their decisions and actions are often viewed with suspicion by State governments. Therefore, in order to avoid clashes between the head of the government of a state and the executive head of a state it is necessary that the Union government should appoint governors in states only after due consultation with the Chief Minister of the concerned State. Sarkaria Commission made a number of recommendations/guidelines in this regard. But such recommendations are hardly considered in real politic. Earlier, even the ARC (Administrative Reforms Commission) had expressed the view that Raj Bhavans should not be a place of rehabilitation.
2. All India Services: State governments are of the view that All India Services (AIS) are no more relevant as the AIS officers spend most of their time in States and hence could not develop a national outlook. Secondly, State Governments cannot impose any major penalty on the AIS officers. Any major penalty can be imposed only on the concurrence of the Centre.
3. Deployment of Paramilitary forces in States: As maintenance of law and order is a state subject, deployment of the paramilitary forces should be made in consultation with states. In fact, controversy arises in two situations:
i) When the Union Government does not deploy adequate number of forces (companies) as requested by the State governments; and
ii) When the State does not request for the paramilitary forces and, yet the Union Government deploys the same against the wishes of the State government. It may indicate lack of faith in the State government and thereby prove to be an insult. Moreover, to minimize the possibilities of conflict and to promote greater coordination between the Union and States, the Union Government organises All India Conferences, like Chief Ministers' Conference, Governors' Conference, Chief Secretaries' Conference, Ministers' Conference, etc. These conferences address areas of mutual conflict and deliberate on promotion of the spirit of co-operation.
C. CENTRE STATE FINANCIAL RELATIONS AND GST
The Constitution (One Hundred and First Amendment) Act, 2016, introduced a national Goods and Services Tax in India from 1 July 2017. This changes the centre state financial relations drastically.
246A. (1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.
(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.
269A. (1) Goods and services tax on supplies in the course of inter-State trade or commerce shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council.
279A. (1) The President shall, within sixty days from the date of commencement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council.
After the amendment the provisions are :
• Parliament and state legislatures will have concurrent powers to make laws on GST. Only the centre may levy an integrated GST (IGST) on the interstate supply of goods and services, and imports.
• Alcohol for human consumption has been exempted from the purview of GST. GST will apply to five petroleum products at a later date.
• The GST Council will recommend rates of tax, period of levy of additional tax, principles of supply, special provisions to certain states etc. The GST Council will consist of the Union Finance Minister, Union Minister of State for Revenue, and state Finance Ministers.
• The Bill empowers the centre to impose an additional tax of up to1%, on the inter-state supply of goods for two years or more. This tax will accrue to states from where the supply originates.
• Parliament may, by law, provide compensation to states for any loss of revenue from the introduction of GST, up to a five year period.
Earlier Tax was divided into different categories and were levied and appropriated by different units as per the mandates of the constitution Guided by the finance commission.
268. Duties levied by the Union but collected and appropriated by the States.
269. Taxes levied and collected by the Union but assigned to the States.
270. Taxes levied and collected by the Union and distributed between the Union and the States.
271. Surcharge on certain duties and taxes for purposes of the Union.
272. Taxes which are levied and collected by the Union and may be distributed between the Union and the States.
273. Grants in lieu of export duty on jute and jute products.
274. Prior recommendation of President required to Bills affecting taxation in which States are interested.
276. Taxes on professions, trades, callings and employments.
277. Savings.
Finance Commission (280)
In Centre state financial relations Finance Commission plays an important role. According to the Constitution the President is empowered to set up a Finance Commission after every five years to make recommendations to him about the distribution of net proceeds of taxes to be divided between the centre and the states.
The Commission is also required to suggest the principles on which grant-in-aid of the revenues should to be given to the state governments out of Consolidated Fund of India.
It is also required to give its view on any matter which may be referred to it by the President in the interest of sound finances. So far President of India has been regularly setting up such a commission after every five years and each time its terms of reference has been made wider and wider.
By and large, Union Government has also been accepting its recommendations and as such it has adopted liberal attitude about the recommendations of the Commission.
The Commission has touched even such subjects as debt burdens of the states, returns of public section undertakings, etc. But even then there is demand by some states that distribution of resources should be such that these favour relatively poor states.
The role of Finance Commission has considerably increased after demise of Planning commission and introduction of GST seeks to change it further.
The Finance Commission recommends the sharing of revenue between the centre and states.
GST is meant to subsume Excise, Service Tax, CST and state sales taxes into one unified tax. Therefore the mechanism for sharing will change, but the mechanism still has to be there. The portion of
GST that will belong to the Centre still has to be shared with the states, and the Finance Commission will need to work that out. As there is some over laping of function of FC & GST council actual functioning may have to evolve based on practices.
280. Finance Commission
(1) The President shall, within two years from the commencement of this Constitution and thereafter at the expiration of every fifth year or at such earlier time as the President considers necessary, by order constitute a Finance Commission which shall consist of a Chairman and four other members to be appointed by the President
(2) It shall be the duty of the Commission to make recommendations to the President as to
(a) the distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided between them under this Chapter and the allocation between the States of the respective shares of such proceeds;
(b) the principles which should govern the grants in aid of the revenues of the States out of the Consolidated Fund of India;
(c) any other matter referred to the Commission by the President in the interests of sound finance
(3) The Commission shall determine their procedure and shall have such powers in the performance of their functions as Parliament may by law confer on them
Grand-in-Aid to the States
According to the Constitution states are to receive grant-in-aid from the Centre out of Central revenue. It is to be given with the approval of the parliament to a deserving state out of Consolidated Fund of India. The amount in each case is to be decided by the Parliament.
The Central Government also gives grants both capital and recurring to the states for implementation of certain schemes like uplift of scheduled castes and scheduled tribes. Special Grant-in- aid is also given by the Central Government to the state governments of Assam, Bihar, Orissa and West Bengal out of Consolidated Fund of India. The amount to be paid in each case is to be decided by the President of India.
GST Council
As per Article 279A of the amended Constitution, the GST Council which will be a joint forum of the Centre and the States, shall consist of the following members:
• Union Finance Minister - Chairperson
• The Union Minister of State, in-charge of Revenue of finance - Member
• The Minister In-charge of finance or taxation or any other Minister nominated by each State Government - Members
As per Article 279A (4), the Council will make recommendations to the Union and the States on important issues related to GST, like the goods and services that may be subjected or exempted from GST, model GST Laws, principles that govern Place of Supply, threshold limits, GST rates including the floor rates with bands, special rates for raising additional resources during natural calamities/disasters, special provisions for certain States, etc.
The Union Cabinet under the Chairmanship of Prime Minister Shil Narendra Modi approved setting up of GST Council on 12th September, 2016 and also setting up its Secretariat as per the following details:
• Creation of the GST Council as per Article 279A of the amended Constitution;
• Creation of the GST Council Secretariat, with its office at New Delhi;
• Appointment of the Secretary (Revenue) as the Ex-officio Secretary to the GST Council;
• Inclusion of the Chairperson, Central Board of Excise and Customs (CBEC), as a permanent invitee (non-voting) to all proceedings of the GST Council;
275. Grants from the Union to certain States
(1) Such sums as Parliament may by law provide shall be charged on the Consolidated Fund of India in each year as grants in aid of the revenues of such States as Parliament may determine to be in need of assistance, and different sums may be fixed for different States: Provided that there shall be paid out of the Consolidated Fund of India as grants in aid of the revenues of a State such capital and recurring sums as may be necessary to enable that State to meet the costs of such schemes of development as may be undertaken by the State with the approval of the Scheduled Tribes in that State or raising the level of administration of the Scheduled Areas therein to that of the administration of the rest ' of the areas of that State: Provided further that there shall be paid out of the Consolidated Fund of India as grants in aid of the revenues of the State of Assam sums, capital and recurring, equivalent to ' (a) the average excess of expenditure over the revenues during the two ' years immediately proceeding the commencement of this Constitution in respect of the administration of the tribal areas specified in Part I of the table appended to paragraph 20 of the Sixth Schedule; and (b) the costs of such schemes of development as maw be undertaken by that State with the approval of the Government of India for the I purpose of raising the level of administration of the said areas to that of ' the administration of the rest of the areas of that State
(1A) On and from the formation of the autonomous State under Article 244 A,
(i) any sums payable under clause (a) of the second proviso to clause (1) shall, if the autonomous State therein, be paid to the autonomous State, and, if the autonomous State comprises only some of those tribal areas, be apportioned between the State of Assam and the autonomous I State as the President may, by order, specify;
(ii) there shall be paid out of the Consolidated Fund of India as grants in aid of the revenues of the autonomous State sums, capital and recurring, equivalent to the costs of such schemes of development as may be undertaken by the autonomous State with the approval of the Government of India for the purpose of raising the level of administration of that State to that of the administration of the rest of the State of Assam (2) Until provision is made by Parliament under clause (1), the powers conferred on Parliament under that clause shall be exercisable by the President by order and any order made by the President under this clause shall have effect subject to any provision so made by Parliament: Provided that after a Finance Commission has been constituted no I order shall be made under this clause by the President except after considering the recommendations of the Finance Commission
• Create one post of Additional Secretary to the GST Council in the GST Council Secretariat (at the level of Additional Secretary to the Government of India), and four posts of Commissioner in the GS Council Secretariat (at the level of Joint Secretary to the Government of India). The Cabinet also decided to provide for adequate fund for meeting the recurring and non-recurring expenses of the GS Council Secretariat, the entire cost for which shall be borne by the Central Government. The GST Council Secretariat shall be manned by officers taken on deputation from both the Central and Stat Governments.
CO-OPERATIVE FEDERALISM
A federal constitution involves the sovereignty of units within the, respected territorial limits, it is not possible to remain in complete isolation from each other. Federal constitution therefore generally provide certain rules for co-operation, which the units are expect t take into consideration while dealing with each other. This co-ordination between states and centre is called co-operative federalism.
• Higher form of Federalism is called organic federalism Federalism is a functional arrangement and not mere a division, of powers. Establishment of federation is for the well-being of thi people. So the federation must be flexible. The concept of co operative federalism is in Australian constitution and is adapted from| there.
There should be harmony and no conflict and there should be co operation and not confrontation.
1. IMPORTANT PROVISIONS OF THE CONSTITUTION
a) Consultative Machinery: Under Art. 263, the President is empowered to constitute 'Inter-State Council' for resolving the dispute arising between the Centre and States and between the states inter se, so! as to avoid the need to go through the judicial proceedings for the same.
In June 1990, the Inter-State Council was formally constituted b\ the President. The Council is headed by the Prime Minister and] includes six Union Cabinet Ministers, and Chief Ministers of State and two Union Territories (Delhi and Puducherry). In 1996, a Sub-Committee was appointed to go into the Sarkari. Commission Report and to suggest which of its recommendation could be adopted.
b) Adjudicative mechanism: Under Art. 262, the Parliament has passed the Inter-State Water Disputes Act, 1956 to adjudicate on any dispute or complaint with respect to use, distribution or control of the waters of inter-State river or river valleys.
c) Full faith and credit clause: Art. 261 lays down that the final judgment or orders delivered or passed by civil courts and not criminal court, of one State shall be equally enforceable in other States, if they wish so. This is known as full faith and credit clause.
d) Delegation of executive functions: Under Art. 258, the President is empowered to delegate some of the executive functions of the Union to the State with its (State's) consent. Under Art. 258 A similarly, the Governor of a State may entrust, with the consent of the Government of India, any of the executive functions which exclusively fall under the State's jurisdiction.
e) Immunity from mutual taxation: Art. 285 says that the properly of the Union owned by a Government company or statutory corporation do not come under this, and is exempted from state taxation, except if the Parliament by law provides otherwise.
Similarly under Art. 289, the State property and income is exempted from Union taxation, except in case of trade or business earned out by the State Government or on its behalf. This is basically not only to avoid unnecessary conflicts but also in create space for mutual cooperation between the Centre and II m State.
2. EXTRA-CONSTITUTIONAL AGENCIES
a) Zonal Councils: The Zonal councils are extra-constitutional bodies created under the States Re- organisation Act, 1956. The 1956 Act set up five Zonal Councils, viz.. Northern, Southern, Eastern, Western and Central and the sixth, North-Eastern Council, was sot up in 1971 by an Act of the Parliament. Each Council consists of the Chief Minister and two other Ministers of each State in the Zone and the Administrator in the case of a Union Territory. The Union Home Minister is the common Chairman of all the Zonal Councils.
Objectives
i) To take collective approach and sort out common problems of member states.
ii) For promoting economic and administrative co-operation for the implementation of developmental plans and projects.
iii) To solve inter-State disputes and promote inter-Zonal cooperation.
Functions
Its function is to advise the Union and State governments represented in that council on matters of common concern, particularly relating to economic and administrative matters, social planning, border disputes, problems of linguistic minorities, inter-State transport, and matters arising out of reorganization of States.
However, in reality, the Zonal Council has become moribund. The meetings of the Zonal Councils have not been convened for decades. b) University Grants Commission: Established by an Act of Parliament
in 1956, its main tasks are -
i) to promote and maintain high quality of education:
ii) to promote and coordinate the University education.
iii) to determine and maintain standards of teaching, examination and research in the Universities.
iv) to maintain, as far as possible, uniformity in the curriculum of the Universities.
v) to extend financial assistance for research and allied activities.
c) Councils appointed by the President: Exercising power under Art. 263 regarding the establishment of Councils for resolving disputes and better co-ordination between the States, the President has appointed several councils - Central Council of Health, Central Council of Local Self - Government, Central Council of Indian Medicine, Central Council of Homeopathy, etc. Also, four Regional Councils have been set up for coordination of policy and action relating to sales tax.
Devolution of Power from Centre to State
The devolution of power from the centre to state need not translate to a lesser role for the centre.
The centre could use this devolution to their advantage in a number of ways.
The current NDA government created the States Division in 2014 under the Ministry of External Affairs (MEA) for efficient management of centre-state relations. However, this division only provides economic freedom to states by allowing them to engage in global economic opportunities.
The structure proposed by NDA only allows for economic development, investment promotion but not aspects of security. The central government needs to realise the role a state can play in security and improving ties with other nation-states. The best example would be India's relation with Israel.
India has historically supported the Palestinian stance, and any major diplomatic move with Israel could upset India's energy ties with Iran and the Gulf states. But, a number of chief ministers of states have gone to Israel, mostly for learning new agricultural practices, as agriculture in Israel is a highly developed industry. Visits from the then CM of Rajasthan Ashok Gehlot in 2013 and Maharashtra CM Devendra Fadnavis in 2015 show that states can help improve ties with other nation-states.
These low-key measures, which go under the radar are extremely important for India to build stronger ties with a nation-state as it allows greater maneuver ability in formulating foreign policy.
The centre will also become effective in conducting neighborhood diplomacy if it can coordinate witn peripheral states, which share borders with other countries, for example, India's relation with Bangladesh. The relation between the two countries was weakened over disputes over the Teesta River. The Manmohan Singh-led government in 2011 failed to reach an agreement with Bangladesh, which allowed an equal share of the river. This failure can be attributed to the CM of West Bengal, Mamata Banerjee, who pressured the centre to break the agreement.
The current central government has suggested the Centre-State Investment Agreement (CSIA), which could potentially help the central government implement a bilateral investment treaty with any foreign country. CSIA creates a platform for states to engage in the management of foreign direct investment flowing into the country.
In addition, with states focusing on improving their economic performance, it allows the centre to focus on other issues like acting in accordance to international law and set environmental goals while the states can help bring globalisation to India through its trade deals and by attracting FDI.
IMPORTANT MATTERS ENUMERATED IN THE THREE LISTS
Sl No
Union list
State list
Concurrent list
1
Defence and defence forces; Cantonments; arms and ammunition; defence-related industries
Public order (but not including use of any defence force or union’s force); police; prisons
Criminal law and procedure; civil procedure; many other legal matters
2
Atomic energy
Local government
Forest, wildlife
3
Central bureau of investigation
Public health
Planning
4
Foreign affairs; UNO; treaties, etc.
Intoxicating liquors
Family planning
5
Citizenship; Passports and visas
Agriculture; animal husbandry, water supply and irrigation; land; fisheries; relief for agricultural indebtedness
Education
6
Railways
Taxes/fees. Etc. specifically reserved for the states
Electricity, newspapers, books, printing
7
National highways and waterways
8
Marl time shopping; major ports
9
Airways
10
Posts and telegraphs; telephones and wireless; broadcasting etc.
11
Currency; foreign exchange
12
Reserve bank of India
13
Foreign and interstate trade
14
Banking; insurance; stock exchanges
15
Oil fields; petroleum and petro- products; (some) mines
16
Taxes / duties, etc. specifically reserved for the union
17
Residuary subjects
ISSUES IN CENTRAL – STATE RELATIONS
There have been several issues which have caused heart-burning between the Centre and the States in recent years. They are:
1. Partisan role of the Governor in:
a) Appointing and dismissing the State Ministries
b) Summoning proroguing and dissolving assemblies
c) Reserving large number of bills for the consideration of the President under Article 200 and 201 and
d) Issuing ordinances.
2. Mis-use of Constitutional emergency powers under Article 356 by
a) Dismissing the State Ministries having majority in the Assembly on untenable grounds and
b) Suspending and dissolving the assemblies keeping in view the interest of the ruling party at the Centre.
3. Discriminatory attitude of the Centre towards States in:
a) Appointment and transfer of governors;
b) Appointment of inquiry commissions against Chief Ministers, and
c) Financial devolution in general and loans and grants-in-aid in particular.
4. The role in Planning Commission.
5. The creation of posts and posting of personnel from All India Services.
6. The use of Central Reserve Police by the Centre in States without consulting then.
7. Refusal or resentment by certain State Governments to carry out Centre’s directions issued under Article 257 to 365 of the Constitution not being in the interest of the ruling party in the State.
8. Socio cultural and regional pressures of State policies. These issues generated Centre-State tensions on the one hand and sense of insecurity in some of the regional ruling parties on the other. Hence, the DMK in Tamil Nadu, Akall Dal in Punjab and CPM in West Bengal started advocating constitutional amendments to ensure more autonomy to the States.
Demands of States: An analysis of the demands of the States reveals the following three trends about State Autonomy.
1. India is not a Nation-State and, therefore, it should be split up in to various Semi-Independent States. Though at the moment this trend is very insignificant, it has its advocates among certain intellectuals. However it is felt that the case of regionalism is not something which should unnecessarily worry the Centre because it is an inevitable result of the ‘rising consciousness’ of the developed and developing nationalists. One should not therefore, impute motives to the adherents of this school of thought.
2. The States should get greater autonomy in almost every sphere. The extreme view in this trend advocates that excepting three subjects including defence, foreign affairs and currency all other subjects should be transferred to States. There also exist other shades of opinion in this trend.
3. The dominant position of the Centre in our federal system should continue to prevail and adjustments should be made within the existing frame-work of the Constitution.
SARKARIA COMMISSION ON THE OFFICE OF THE GOVERNOR
Sarkaria Commission which was constituted in 1983 and submitted its Report in 1988 explored the grey areas of Centre-State Relations and took a comprehensive look at the various aspects of the role of Governor and has made several recommendations.
Sarkaria Commission observed that given the multifaceted role of the Governor it would be neither feasible nor desirable to formulate a comprehensive set of guidelines for the exercise of his
discretionary powers as no two situations are likely to be identical. The governor, therefore, should be left free to decide in such matters.
However, the Commission felt that much of the criticism could bo avoided if selection of Governors had been made on correct principles to ensure the appointment of right type of persons. For this the Commission suggested the following criteria:
• State must be consulted before the appointment of a person to the office of Governor.
• Governor should not belong to the same state.
• He should be an eminent figure in any walk of life.
• He should have detached himself from the local politics of that state.
• He should not have been actively involved in polities in recent past.
• He should not be a politician of the ruling party at the centre, if the state to which he is being appointed in ruled by some other party (parties)
• Persons of minority groups should continue to be given a chance.
• System of sending fortnightly report to the President by the Governor must continue.
• The power of the Governor to refer any Bill to the centre for the President's assent must continue.
• Tenure of 5 year should not be disturbed except for some very compelling circumstances.
In the area of the exercise of discretionary powers to the commission forwarded certain recommendations:
1 In selecting a Chief Minister: In the case of a fractured mandate when no party gets absolute majority following guidelines should be followed in order of preference while inviting to form a government:
• An alliance of parties that was formed prior to the elections, (pre-electoral alliance)
• The largest single party staking claim to form the government with the support of others including independents.
• A post-electoral coalition with all the parties in the coalition joining the government.
• A post-electoral alliance of parties with some of the partners forming the government while others supporting it from outside.
• In such situations the Chief Minister elect should seek a vote of confidence within 30 days of taking over.
2. Testing of Majority: The Governor should not take action on allegation of loss of majority without allowing the government concerned to seek a vote of confidence in the Assembly.
3. Dismissal of CM: if the Assembly is out of session and the Governor feels that the government has lost its majority then firstly he should advice the CM to convene the meeting of the Assembly for the specific purpose of testing the majority. If the CM, however, does not summon the Assembly, the Governor should himself summon the Assembly for the purpose.
Summoning, proroguing and dissolution of the Assembly: So long as a ministry enjoyed majority it should be binding on the Governor to act in accordance with the advice tendered by the CM and his Council of Ministers provided the advice tendered is not unconstitutional.
5. Recommending President's Rule (Article 356): Article 356 should be used very sparingly, as a measure of last resort, when all available alternatives fail to prevent or rectify the breakdown of constitutional machinery in the State.
6. Reserving Bills for President's Consideration: Normally in the discharge of his functions under Article 200 the Governor should be bound by the advice of the ministry. However, he may exercise his discretion where, in his opinion, provisions of a Bill are patently unconstitutional, such as where the legislature exceeds its jurisdiction.
Conclusion
Notwithstanding all these novel recommendations the recent trend in the appointment of Governors and their dismissal or transfers is very alarming when the considerations have crossed all ethical norms. Again, the role of the Governors who have acted merely as puppets of the Centre are not in keeping with democratic norms and values. Therefore, only public opinion and sustained public pressure resulting in political will can help.
INTER STATE COUNCIL
In a dual polity within the federal framework, coordination of the national and state policies and their implementation becomes crucial, especially in view of the large areas of common interest and shared action. A federal forum that assists in the cooperation and coordination is provided in Art. 263 to bring together the federal units. Art. 263 says-"lf at any time it appears to the President that public interest would be served by the establishment of a Council charged with the duty of
• inquiring into and advising upon disputes which may have arisen between the States:
• investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or
• making recommendations on any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject, he may establish such a Council.
The duty of any such Council is to inquire into and advise upon relevant matters and not one of adjudicating. The President set up the Inter State Council in 1990 with the following composition:
• Prime Minister as the Chairman
• Chief Ministers of the States and those UTs with a Legislative Assembly and
• Six Union Cabinet Ministers as members.
The Ministers of State in the Union Council may be invited to the meetings if the agenda has any relevance for them.
The proceedings of the Council are to be held in camera and decisions are to be taken by consensus.
Previously, the President set up Central Council of Local Self Government, Transport Development Council etc.
The Sarakaria Commission recommended that in order to differentiate the Inter State Council from other bodies set up under the
Article, it must be called Inter Governmental Council.
In July 1997, the Inter State Council meeting resolved to implement the Alternative Devolution Scheme of the Tenth Finance Commission and.il:* > recommended significant steps for making the use of Art. 356 difficult.
INTER STATE RIVER WATER DISPUTES
In India, there are many inter-state rivers. The regulation and development of the waters of these rivers and river valleys continues to be a source of inter-state friction, for example, the waters of Krishna, Godavari, Narmada, Yamuna, Cauvery and others.
Art. 262 (1) of the Constitution lays down that, "Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use. distribution or control of the waters of, or
in, any inter state river or river valley". Art. 262 (2) further states that the Supreme Court or any other Court has no power in this regard.
Parliament enacted the Inter State River Waters Disputes Act. 1956. It provides for the reference of any such dispute to the Tribunal by the Centre, on receipt of complaint and representation from a state when the Union Government is satisfied that the dispute cannot be settled by negotiations.
In the Indian Constitution, water-related matters within a state are included in the State List while the matters related to inter-state river waters are in the Union List.
For the development of inter-state river water disputes in an optimum way, the Parliament enacted River Boards Act, 1956. It provides for the establishment of River Boards by the Centre in consultation with the states for advising on integrated development of waters of rivers and river valleys. The provisions of the Act have not been implemented since 1956
So far, the Union Government has set up four Inter State Tribunals for Narmada, Krishna, Godavari and Cauvery.
The Narmada Water Tribunal was constituted in 1969 after a complaint by Gujarat in 1968. The riparian states involved are Gujarat, Maharashtra. Madhya Pradesh and Rajasthan. The Tribunal gave the award in 1978 and the publication in the official gazette took place in 1979 (without the publication, the implementation cannot take place). The disputes for the use of Narmada waters were very old and the attempts to solve them can be traced back to 1963 and after the inter state negotiations failed to yield.
The Krishna Water Tribunal was set up in 1969and the award was given in 1973 with the publication of the award in 1976. The states involved are Karnataka. Maharashtra, Andhra Pradesh, Madhya Pradesh and Orissa.
The background related to the setting up of Godavari Tribunal is almost the same as that of the Krishna Tribunal, with the states involved being the same.
The history of the disputes concerning the Cauvery river waters is very old The cause of the dispute is that the breach of the agreement reached in 1920s between Karnataka and Tamil Nadu by the former, the upper riparian state, by exploiting more water resources than the due amount and in the process, starving the farm fields of Tamil Nadu. The Centre set up the tribunal in 1991 and in the interim award given by the Tribunal in mid-1991, it ordered that 205 tmcft of water be annually given to Tamil Nadu. When the Karnataka government legislated against honoring the award, calling the powers of the Tribunal to give interim award into question, the President sought the advice of the Supreme Court (Art. 143). The Court opined that the award was legal and it should be published in the Official Gazette, which was done soon after. The final award of the Tribunal is awaited.
Sarkaria Commission on Centre State Relations, in its report in 1988, gave the following recommendations in this regard:
• once an application under the Inter State River Disputes Act is received from a riparian State, the Union Government should set up the Tribunal within a period of one year so as to avoid the delays that cause the waters to lie wasted for long periods of time.
• The Union Government should also be given the powers to act suo moto without receiving complaint from any state.
• The award of the Tribunal should become effective within five years from the date of a setting up of the Tribunal. The terms of the Tribunal may however be extended.
• The award of the Tribunal should be made binding by giving it the force of a Supreme Court ruling.
SARKARIA COMMISSION
In the wake of the increasing strain in the Centre-State relations, the Parliament, in June 1983, appointed a Commission under the Chairmanship of Justice R S Sarkaria to go into the details of the
Centre-State relations and to recommend measures to make the relations, more efficient and cooperative. The Commission submitted its report in January 1988.
The Commission did not call for any structural change, but preferred to continue the existing arrangement because the disintegrative forces are active in the country. However, the Commission expressed the need for streamlining the provisions of the Centre-State relations. It suggested the Centre, to begin with, to relax its financial hold over the States and to give them more autonomy in this regard. This would make the regional powers more responsible.
Major Recommendations of the Sarkaria Commission:
1. On the Governor of a State- See Governor Section.
2. On Article 356. The commission noted that this Article has been misused in 90% of the cases for political purposes. So it recommended that -
a) The President's Proclamation should include the reasons' as to why the State cannot be run as per the normal provisions of the Constitution.
b) As far as possible, the Centre should issue a warning to the State government before resorting to the use of Article 356.
c) It should not be used to serve political purposes.
d) Article 356 should be amended so that the President be empowered to dissolve the State Legislature only after approval by the Parliament.
3. On Art. 258. The Commission recommended that the President should delegate some of the Union executive function in concurrence with the States. This will help in furthering the spirit of ‘cooperative federalism'.
4. On Concurrent List. The Centre should have a loose control over the subjects of the Concurrent List and consult the State Government before enacting any laws on such subjects.
5. On Art. 252. In case the Parliament makes a law under Art. 252 (by mutual consent of two or more states), such law should be in force for not more than three years. Currently, such law can only be repealed by the Parliament whenever it wants, although the power to legislate has been given by the States.
6. The award of the Inter-State River Water Tribunal should be made binding, automatically, and not after the notification by the Centre.
7. Under Art. 263, the Centre should appoint 'Inter-State Council' and its name should be changed to 'Inter-Governmental Council', so as to exclude political issues.
8. Sharing of the Corporate Tax between the State and the Centre should be made mandatory.
9. The surcharge must be levied for a limited period.
10. The judges of a High Court should not be transferred against their will.
Of the above ten recommendations, 2a and 2b, (7) and (8) have been accepted. However, the name of the Inter-State Council has not been changed to 'Inter-Governmental Council', as recommended by the Commission.
PUNCHHI COMMISSION ON CENTRE-STATES RELATION
• A new commission to redefine Centre-State ties was set up on 27 April 2007 to examine the possibility of giving sweeping powers to the Union Government, including suo motu deployment of Central forces in States and investigation of crimes affecting national security.
• The commission, chaired by the former Chief Justice of India, M.M. Punchhi, will also examine what could be the Centre's "role, responsibility and jurisdiction" vis-a-vis States during major and prolonged outbreaks of communal violence, caste violence or any other social conflict.
Terms of reference
• Under the terms of reference, which could have far-reaching political implications, the four-member commission would also review other aspects of Centre-State relations, including taxes and linking of rivers. The panel, set up two decades after the Sarkaria Commission was formed, has Dhirendra Singh and V.K. Duggal, both former Union Home Secretaries, N.R. Madhava Menon, former Director of National Judicial Academy and Prof (Dr) Amaresh Bagchi, Professor Emiritus and former Director of the National Institute of Public Finance and Policy (NIPFP), as members. The commission will submit its recommendations in two years.
• The commission will explore whether there is a need to set up a Central law enforcement agency to take up suo motu investigation of crimes having inter-State or international ramifications with serious implications on national security. The feasibility of a supporting legislation under Article 355 for the purpose of suo motu deployment of Central forces in the States if and when the situation demanded, also figures in the terms of reference of the commission, which replaces the Sarkaria panel.
Important Recommendations of the Punchi Commission Appointment and Removal of Governors
• The panel also feels that governors should have the right to sanction prosecution of a minister against the advice of the council of ministers. However, it wants the convention of making them chancellors of universities done away with.
• As for qualifications for a governor, the Punchhi commission suggests that the nominee not have participated in active politics at even local level for at least a couple of years before his appointment. It also agrees with the Sarkaria recommendation that a governor be an eminent person and not belongs to the state where he is to be posted.
• The commission also criticises arbitrary dismissal of governors, saying, "the practice of treating governors as political football must stop". There should be critical changes in the role of the governor - including fixed five year tenure as well as their removal only through impeachment by the state Assembly. It has also recommended that the state chief minister have a say in the appointment of governor.
• Underlining that removal of a governor be for a reason related to his discharge of functions, it has proposed provisions for impeachment by the state legislature along the same lines as that of President by Parliament.
• This, significantly, goes against the doctrine of pleasure upheld by the recent Supreme Court judgment.
• Endorsing an NCRWC recommendation, it says appointment of governor should be entrusted to a committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha and chief minister of the concerned stat~. The Vice- President can also be involved in the process.
• Unlike the Sarkaria report, the Punchhi report is categorical that a governor be given fixed five-year tenure. The Punchhi Commission report also recommends that a constitutional amendment be brought about to limit the scope of discretionary powers of the governor under Article 163 (2). Governors should not sit on decisions and must decide matters within a four-month period.
Appointment of Chief Ministers
• Among the significant suggestions made by the Commission is, laying down of clear guidelines for the appointment of chief ministers.
• Upholding the view that a pre-poll alliance should be treated as one political party, it lays down the order of precedence that ought to be followed by the governor in case of a hung house:
• Call the group with the largest prepoll alliance commanding the largest number;
• Single largest party with support of others;
• Post-electoral coalition with all parties joining the government, and last the post-electoral alliance with some parties joining the government and remaining including Independents supporting from outside.
National Integration Council
• The creation of an overriding structure to maintain internal security along the lines of the US Homeland Security department, giving more teeth to the National Integration Council.
• For the National Integration Council (NIC), the commission has proposed that should meet at least once a year.
• The commission, however, rejects a suggestion from some stakeholders as well as the Liberhan Commission that the NIC be accorded constitutional status.
Internal Security
• The commission has also studied new set-ups like the National Investigation Agency and recommended procedures to ensure smooth co-operation of the states in terror investigations entrusted to NIA.
• The recent ruling of the Supreme Court has indicated that the sanctity of this constitutional post should be preserved. In democracy, no body can have absolute power in the name of smooth administration and good governance.
• The administrative apparatus has to be in the line of the constitution, which was prepared by the people of the country and amended by the elected representative of the people of India. The' doctrine of pleasure1 has to be understood in this light.
Over Articles 355 and Articles 356
• There should be an amendment in Articles 355 and 356 to enable the Centre to bring specific trouble- torn areas under its rule for a limited period.
• The commission has proposed "localising emergency provisions" under Articles 355 and 356, contending that localised areas -either a district or parts of a district be brought under Governor's rule instead of the whole state.
• Such an emergency provision should however not be of duration of more than three months.
• The commission however supports their right to give sanction for the prosecution of ministers against the advice of the state government.
Deployment of Central Forces
• To make an amendment in the communal violence Bill to allow deployment of Central forces without the state's consent for a short period.
• It has proposed that state consent should not become a hurdle in deployment of central forces in a communal conflagration.
• However, such deployment should only be for a week and post-facto consent should be taken from the state.
Finally
• Touching upon several significant areas in the working of Centre-state relations, the Justice Madan Mohan Punchhi report submitted to the government has made over 200 recommendations. These include radical ones like amending Articles 355 and 356 to enable the Centre to bring specific trouble-torn areas under its rule for a limited period, creation of an overriding structure to maintain internal security along the lines of the US Homeland Security department, giving more teeth to the National Integration Council, and amending the communal violence Bill to allow deployment of Central forces without the state's consent for a short period.
Chapter-21 PANCHAYATI RAJ
· Article 40: The state shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
· The Panchayati Raj is the Rural Local Self Government.
· ‘Local Government’ is mentioned in the State list of 7th schedule of the Indian Constitution.
· The Panchayati Raj was not a part of the original Constitution.
· The Panchayati Raj was made a constitutional body through the 73rd amendment Act of 1992.
BEFORE PANCHAYATI RAJ:
· The government has launched Community Development Programme (CDP) in the year 1952.
· The government has launched National Extension Service (NES) in the year 1953.
BACKGROUND:
· In the year 1957 the Government of India appointed Balwant Rai Mehta Committee (B R Mehta Committee).
· The B R Mehta Committee was appointed to look into the functioning of CDP and NES
· The B R Mehta Committee submitted the report in November 1957.
· The Committee recommended the establishment of the scheme of ‘Democratic Decentralization” which is also known as Panchayati Raj.
· The recommendations were accepted by the National Development Council in January 1958.
· Rajasthan was the first state to establish the Panchayati Raj in India on October 2, 1959.
B R MEHTA COMMITTEE RECOMMENDATION:
· B R Mehta Committee recommended for the establishment of 3-tier structure Panchayati Raj system.
· Gram (village) Panchayat - Village Level
· Panchayati Samiti - Block Level
· Zilla Parishad - District Level
· The Village Panchayat should be constituted with directly elected representatives.
· The Panchayat Samiti should be constituted with indirectly elected members.
· The Zilla Paridhad also to be constituted with indirectly elected members.
· All the planning and development activities should be entrusted to the panchayati raj bodies.
· The Panchayati Samiti should be the executive body.
· The Zilla parishad should be the advisory, coordinating and supervisory body.
· The District Collector should be the Chairman of the Zilla Parishad.
· There should be a genuine transfer of powers and responsibility to these democratic bodies.
· These bodies should be transferred with adequate resources.
· A system should be evolved for the further devolution of authority in future.
· The National Development Council (NDC) accepted the recommendations in January, 1958.
· The NDC said that the basic principles should be identical throughout the country.
WHICH IS THE FIRST STATE TO ESTABLISH PANCHAYATI RAJ?
· The scheme of Panchayat Raj was first established in Rajasthan and inaugurated on October 2, 1959 by then Prime Minister Jawaharlal Nehru.
· Rajasthan was followed Andhra Pradesh and other states.
· There were many differences among the states in the structure and function of the panchayati Raj.
· The states like Rajasthan and Andhra Pradesh adopted 3 tier systems.
· West Bengal adopted 4 tier system.
· Tamil Nadu adopted the 2 tier system.
ASHOKMEHTA COMMITTEE:
· In December 1977 (Janata Party Government) the Prime Minister Morarji Desai appointed a committee on Panchayati Raj institutions.
· Ashok Mehta was the chairman of the committee.
· The Ashok Mehta Committee submitted the report in August 1978.
· To strengthen the Panchayati Raj system the Ashok Mehta Committee made 132 recommendations.
· The Committee recommended for the adoption of 2 tier structure.
· Zilla Parishad - District Level
· Mandal Panchayat - Mandal Level
· Mandal Panchayat is a group of villages with a population of 15,000 to 20,000.
· The Zilla Parishad at the district level should be the executive body.
· The Zilla Parishad must be made responsible for planning at the district level.
· There should be an official level participation of political parties at all levels of Panchayat elections.
· The Panchayati Raj must have compulsory powers of taxation to mobilize their own financial resources.
· There should be a regular social audit by a district level agency and by a committee of legislatures to check whether the funds allotted for the vulnerable social and economic groups are actually spent on them or not.
· The State governments should not supersede the Panchayati Raj Institutions.
· In case of super session elections should be held within 6 months.
· The Nyaya Panchayats should be presided over by a qualified judge.
· The Nyaya Panchayat should be kept as a separate body.
· The chief electoral officer in consultation with the chief election commissioner should conduct elections of the Panchayat Raj.
· A Minister for panchayat Raj should be appointed.
· Seats for Scheduled caste and scheduled tribes should be reserved on the basis of their population.
· No action was taken on the recommendations of the Ashok Mehta Committee report as the Janata Party government stepped down before the term due political turmoil.
GVK RAO COMMITTEE:
· In the year 1985 the Planning Commission appointed a committee on Administrative Arrangement for Rural Development and Poverty Alleviation Programme.
· According to the G V K Rao committee the phenomenon of bureaucratization weakened the Panchayati Raj institutions.
· The committee recommended for the revitalization of the entire Panchayati Raj system.
L M SINGHVI COMMITTEE:
· In the year 1986 then Prime Minister Rajiv Gandhi appointed a committee on “Revitalization of Panchayati Raj Institutions for Democracy and Development”.
· The L M Singhvi committee recommended that the Panchayati Raj institutions should be constitutionally recognized, protected and preserved.
· The committee recommended that a new chapter should be added to the Constitution for the same purpose.
· The L M Singhvi Committee also suggested for the constitutional provisions to ensure regular, free and fair elections to the Panchayati Raj bodies.
· After the recommendations of the above committees, then Prime Minister Rajiv Gandhi made an attempt to provide the constitutional status to the PRIs (Panchayati Raj bodies).
· In July 1989, the Rajiv Gandhi Government introduced 64th Constitutional amendment bill.
· The 64th amendment bill was introduced in the Lok sabha:
· A constitutional amendment bill can be introduced either in the Lok Sabha or in the Rajya Sabha.
· This amendment is meant for providing the constitutional status to the Panchayati Raj institutions.
· The Lok sabha passed the bill in August 1989.
· An amendment bill must be passes with the special majority.
· The bill was opposed in the Rajya Sabha on the grounds that it sought to strengthen centralization in the federal system.
· The bill was not passed in the Rajya Sabha.
· The 64th amendment bill was lapsed.
· A constitutional amendment bill must be passed in both the houses of the Parliament separately with a special majority.
· There is no provision of Joint sitting in case of disagreement on a Constitutional amendment bill.
· In the year 1989 National Front government was formed at the Central level.
· V. P. Singh was appointed as the Prime Minister of India.
· In the month of November 1989, the then Prime Minister V P Singh announced that the steps to strengthen the Panchayati Raj would be taken.
· In September 1990 a constitutional amendment bill was introduced in the Lok Sabha.
· But the government collapsed and there was an inevitable midterm election for the Lok Sabha in the year 1991.
· If the Lok Sabha is dissolved all the bills that are pending in the Lok Sabha are lapsed.
· This led to lapse of the bill.
· After the elections of 1991 P V Narasimha Rao became the Prime Minister of India.
· During the election campaign on May 21, 1991 Rajiv Gandhi was assassinated.
· The Congress government (P V Narasimha Rao) considered the matter of constitutionality for the panchayati Raj institutions.
· The controversial aspects were removed from the bill.
· The bill was introduced in the form of 73rd constitutional amendment bill.
· The 73rd constitutional amendment bill was introduced in the Lok Sabha in 1991.
· The bill was passed by the Lok Sabha on December 22, 1992.
· The bill was passed by the Rajya Sabha on December 23, 1992.
· The bill was approved by the 17 state assemblies.
· A constitutional amendment bill related to the federal powers must get the consent of at least half the state with simple majority.
· The President gave his assent (President (Shankar Dayal Sharma) on April 20, 1993.
· This became the 73rd Constitution amendment Act, 1992.
SALIENT FEATURES OF THE 73RD AMENDMENT ACT 1992
· This act added Part-IX to the Constitution.
· This act also added new article from 243A to 243O (English alphabet ‘O”).
· This means 243A, 243B, 243C …243O.
· The 73rd amendment act also added 11th schedule to the Constitution of India.
NOTE: THE ORIGINAL CONSTITUTION CONTAINS ONLY 8 SCHEDULES.
· 9th schedule was added through the 1st amendment in the year 1951.
· 9th schedule is related to the land reforms.
· 10th schedule is added in the year 1985 through the 52nd amendment.
· 10th schedule is related to the Anti-Defection law.
· The 11th schedule contains 29 subjects.
· 7th schedule is different from 11th schedule. 7th schedule consists of 3 lists Union, State and concurrent lists.
· The state governments are under the constitutional obligation to adopt the new Panchayati Raj system.
· The compulsory provisions of the act have to be included in the state laws creating the new Panchayati Raj system.
· The voluntary provisions may be included at the discretion of the states.
GRAM SABHA:
· All the adult members are in the village is the Gram Sabha.
· This means that all the persons registered in the electoral rolls of a village is the Gram Sabha.
· This is a village assembly consisting of all the registered voters in a Village Panchayat.
· The Gram Sabha functions are determined by the state legislature.
ESTABLISHMENT OF 3-TIER STRUCTURE:
· The act provides for the establishment of a 3-tier panchayati Raj structure at the state level to bring the uniformity throughout the country.
· Village Level - Village Panchayat
· Mandal Level (intermediate) - Mandal Panchayat
· Zilla Parishad - District Level
· But, a state with a population not exceeding 20 Lakh may not constitute Mandal Panchayat.
· It means the states with a population less than 20 lakh may constitute only Village Panchayat and Zill Parishad.
ELECTIONS:
· All the members of the Panchayats at all levels
· Village
· Mandal
· District
· Shall be elected directly by the people.
· The manner and procedure of election Chair person at the village level (Sarpanch or President) is determined by the state legislature.
· The chair persons of Mandal Panchyat (Madal President) and Zill Parishad (Chairman) shall be elected indirectly from amongst the elected members.
· A District (Zilla) is divided into number of ZPTCs (Zilla Parishad Territorial Constituencies).
· A ZPTC member is directly elected by the people.
· The directly elected ZPTC members from amongst them elect the chairman of Zilla Parishad.
· Similarly each Mandal is divided into MPTCs (Mandal Parishad Territorial Constituencies).
· An MPTC is elected directly by the people.
· The President of Mandal is elected by the MPTCs from amongst themselves.
· Hence, except the ZP chairman and the Mandal President all the members in the Panchayats are elected directly.
Reservation of seats
· Article 243 D provides the reservation of seats for SCs and STs.
· The Scheduled Caste and Scheduled Tribes are provided with the reservation of seats at all the three levels in proportion to their population.
· The state legislature shall provide for the reservation of offices of the Chairpersons in the Village panchayat or any other level for SCs and STs.
· The women are provided with the reservation at all the three levels.
· Not less than the 1/3rd of the total number of seats shall be reserved for women.
· 110th amendment bill that is meant for increasing the reservation for women from 1/3rd to ½ at all levels is still pending in the Parliament (As on January 15, 2104)
· This includes seats reserved for women belonging to SCs and STs).
· Not less than 1/3rd of the total number of offices of chairpersons in the panchayats at each level shall be reserved for women.
· The state legislatures may make any provision for reservation of seats in any panchayat or offices of chairpersons in the Panchayat at any level in favour of backward classes.
TERM OF PANCHAYATS:
· The term of office is 5 years.
· The office can be dissolved earlier before the completion of the term in accordance with the procedure prescribed by state law.
· In case of dissolution election should be conducted before the expiry of the 6 months from the date of dissolution.
· A Panchayat that is reconstituted after premature dissolution shall continue only for the remainder of the period.
· Fresh election to the panchayats can be conducted before the expiry of the term of 5 years.
QUALIFICATIONS:
· Article 243 F provides that all persons who are qualified to be chosen to the state legislature shall be qualified to be chosen as a member of a panchayat.
· A person who attained the age of 21 years is eligible to contest in the Panchayat elections.
· In case of state assembly it is 25 years.
DISQUALIFICATIONS:
· If a person is disqualified under any law for the time being in force for the purpose of elections to the legislature of the state concerned.
· If a person is disqualified under any law made by the state legislature.
· No person can be disqualified on the grounds that he is less than 25 years of age if he has attained the age of 21 years.
· All questions of disqualifications shall be referred to such authority as the state legislature determines.
POWERS, AUTHORITY AND RESPONSIBILITIES OF PANCHAYATS:
ARTCILE 243G-243H: The State legislatures confer on the panchayats such powers and authority as may be necessary to enable them to function as institutions of self government.
· The panchayats may be entrusted with the responsibilities of
· Preparing plans for economic development and social justice
· Implementation of schemes for economic development and social justice.
· With regard to the subjects that are mentioned in the 11th schedule of the Indian Constitution. (29 items).
· Thus the 11th schedule distributes powers between the state legislature and panchayats.
· The 7th schedule distributes the powers between the Union and the State legislatures.
POWERS OF PANCHAYATS TO IMPOSE TAXES AND FINANCIAL RESOURCES:
· State legislature may authorize the panchayats to levy, collect and appropriate taxes, duties, tolls etc.
· The state legislature can also assign to a panchayat various taxes, duties etc collected by the state government.
· From the Consolidated Fund of the State Grants-in-aid may be given to the Panchayats.
STATE FINANCE COMMISSION:
· This is just like the Central Finance Commission.
· The State Finance Commission is constituted by the Governor every 5 years.
· The state finance commission recommends about the division of net proceeds of taxes, duties, tolls and fees leviable by the state may be divided between the state government and the Panchayats and how allocation would be made among various levels of Panchayats.
· The State Finance Commission also recommends about the grants-in-aid to be given to the panchayats.
· The State finance Commission submits the report along with the memorandum of action taken on it to the Governor.
· The report of the Finance Commission along with a memorandum of action taken on it is laid before the state legislature by the Governor.
AUDITING OF PANCHAYAT ACCOUNTS:
The provisions are made by the state legislature with respect to the maintenance of accounts by the panchayats and the auditing of such accounts.
STATE ELECTION COMMISSION:
· Article 243K provides for the constitution of a state Election Commission.
· The State Election Commissioner is appointed by the Governor.
· The State Election Commission is vested with the responsibilities of
· Superintendence
· Direction
· Control of elections to the panchayats
· Preparation of electoral rolls
· The State Election Commissioner can be removed in the same manner and on the same grounds as a judge of a High Court.
· The State Legislature has the power to legislate on all matters relating to elections to panchayats.
· An election to a panchayat can be called in question only by an election petition which should be presented to such authority and in such manner as may be prescribed by or under any law made by the state legislature.
MISCELLANEOUS:
· The President may direct the provisions of this act shall apply to any Union Territory subject to such exceptions and modifications as he specifies.
· The 73rd amendment act is not applicable to the states of Jammu and Kashmir, Meghalaya, Mizoram, Nagaland etc.
· The act is also not applicable to Scheduled areas and tribal areas.
· Tribal areas are the autonomous districts.
SUBJECTS IN THE 11TH SCHEDULE OF THE INDIAN CONSTITUTION:
· The 11th schedule contains 29 subjects.
· Agriculture, including agricultural extension.
· Land improvement, implementation of land reforms, land consolidation and soil conservation.
· Minor irrigation, water management and watershed development.
· Animal husbandry, dairying and poultry.
· Fisheries
· Social forestry and farm forestry
· Minor forest produce
· Small Scale industries, including food processing industries
· Rural housing
· Drinking water
· Fuel and fodder
· Roads, culverts, bridges, ferries, water ways, and other means of communication
· Rural electrification, including distribution of electricity
· Non conventional energy sources
· Poverty alleviation programme
· Education, including primary and secondary schools
· Technical training and vocational education
· Adult and non-formal education
· Libraries
· Cultural activities
· Markets and fairs
· Health and sanitation including hospitals, primary health centers and dispensaries
· Family welfare
· Women and child development
· Social welfare, including the welfare of the handicapped and mentally retarded
· Welfare of the weaker sections and in particular of the scheduled castes and the scheduled tribes
· Public distribution system
· Maintenance of community assets
MISCELLANEOUS:
· Maharashtra is the 1st state in the country to provide 33 percent reservation to women in the local bodies in the early 1990’s. (during the Chief Ministership of Sharad Pawar).
· Bihar is the first state to provide 50 percent reservation for women in the local bodies.
CHAPTER - 22 MUNICIPALITIES
· The Municipalities are the Local self government units in the urban areas.
· Some of the provisions are similar to those present in the part IX (Panchayati Raj) of the Constitution like reservation of seats, State Finance Commission and the State Election Commission.
· The Municipalities are added in the Constitution through the 74th amendment act.
· The Municipalities are mentioned in the 12th Schedule of the Constitution.
· They are mentioned under Part IX A of the Indian Constitution.
· The Articles from 243 P to 243 ZG are related to Municipalities.
BACKGROUND:
· The 1st Municipal Corporation in India was set up in the year 1687, in Madras.
· In the year 1726 municipal corporations were set up in Bombay and Calcutta.
· In the year 1882, the viceroy of India Lord Rippon issued a resolution of Local Self government.
· Lord Rippon is called the ‘Father of Local Self Government” in India.
CONSTITUTIONAL STATUS TO MUNICIPALITIES:
· Rajiv Gandhi was the first Prime Minister who made an attempt to provide the constitutional status to the Municipalities.
· In the year 1989, 65th Constitutional amendment bill (Nagar Palika bill) was introduced in the Parliament.
· The Nagar Palika was passed in the Lok Sabha.
· But the Nagar Palika bill was rejected by the Rajya sabha in October 1989.
· These are the similar incidents like that of 64th amendment bill.
· A Constitutional amendment bill must be passed separately by both the houses of the Parliament with a special majority.
· Hence the Nagar Palika bill was lapsed.
· In the year 1991 P V Narasimha Rao became the Prime Minister of India.
· In September 1991 the 74th Constitutional amendment bill was introduced in Lok Sabha.
· The amendment bill was passed by both the houses of the Parliament in December 1992.
· Later the bill was approved by the half number of the states with a simple majority.
· The bill was given the consent by the President in April 1993.
· Similar to that of 73rd amendment.
74TH AMENDMENT ACT:
· A new part IX-A has been added.
· This came into force on June 6, 1993.
· This consists of provisions from articles 243 P to 243 ZG.
· The act also added 12th schedule to the constitution.
· The 12th schedule consists of 18 items.
· It is an obligation to the states to adopt the new system of municipalities in accordance with the provisions of the 74th amendment act.
· KINDLY NOTE: Most of the points related to the 73rd and 74th amendment acts are similar. Please pay attention while reading.
SALIENT FEATURES OF THE 74TH AMENDMENT ACT:
· The act created 3 types of municipalities.
· Nagar Panchayat
· reservation of seats for the Schedules Castes and Scheduled Tribes in every Municipality in proportion of their population.
· Out of the total number of seats to be filled by direct election at least 1/3rd seats would be reserved for women, including the number of seats reserved for the women belonging to SC and ST.
· 112th amendment bill with a proposal of increasing the reservation for women in Municipalities from 1/3rd to ½ at all levels is pending in the Parliament.
· The reservation of backward classes may be provided by the state legislature.
· The state legislature may also provide reservation of offices of the chairpersons’ in municipalities for the backward classes.
TERM:
· The term of every municipality is 5 years.
· A Municipality may be dissolved earlier according to law.
· Elections to constitute a Municipality shall be completed before the expiry of the period of 5 years.
· If a Municipality is dissolved earlier the elections must be conducted within 6 months of the dissolution.
· A Municipality constituted after its dissolution shall continue only for the remainder of the term.
· If the remainder period is less than 6 months it shall not be necessary to hold elections.
QUALIFICATIONS:
· Article 243V provides that all the persons who are qualified to be chosen to the state legislature shall be qualified for being a member of a Municipality.
· The persons who have attained the age of 21 years will be eligible to be a member.
· All the questions of disqualification shall be referred to such authority as the state legislature determines.
THE STATE ELECTION COMMISSION:
· Under Article 243 K the State Election Commission is appointed.
· All matters relating to the elections to the Municipalities are regulated by the state legislature by law.
· The State Election Commission conducts the elections to both Municipalities and Panchayats.
· The State Election Commissioner is appointed by the Governor.
· The State Election Commissioner is removed in the same manner like that of a High Court Judge.
POWERS, AUTHORITY AND RESPONSIBILITIES:
According to the Article 243W of the Constitution state legislatures are provided with the power to confer on Municipalities all such powers and authority as may be necessary to enable them to function as institutions of self government.
· To prepare plans for economic development and social justice
· Implementation of schemes as may be entrusted to them
· Other matters related to the items listed in the 12th schedule of the Indian Constitution.
· Financial Functions:
· A state legislature may by law authorize a Municipality to levy, collect, and appropriate taxes, duties, tolls etc.
· The state legislature can also assign to a Municipality various taxes, duties etc collected by the state government.
· On the recommendation of the State Finance Commission state government gives the Grants-in-aid to the Municipalities from the Consolidated Fund of a State.
STATE FINANCE COMMISSION:
· The State Finance Commission is appointed under article 243 – I of the Indian Constitution.
· The State Finance Commission reviews the financial position of both Municipalities and Municipalities.
· The State Finance Commission recommends about the distribution of taxes, duties, tolls and fees leviable by the state government may be divided between the state and the Municipalities.
· Grants-in-aid to be given to the Municipalities.
· The measures needed to improve the financial position of the Municipalities.
· The same State Finance Commission serves the purpose of both Municipalities and Panchayati Raj.
SUBJECTS IN THE 12TH SCHEDULE:
· Urban planning including town planning
· Regulation of land use and construction of buildings
· Planning for economic and social development
· Roads and bridges
· Water supply for domestic, industrial and commercial purposes
· Public health, sanitation, conservancy and solid waste management
· Fire services
· Urban forestry, protection of environment and promotion of ecological aspects
· Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded
· Slum improvement and up gradation
· Urban poverty alleviation
· Provision of urban amenities and facilities such as parks, gardens, playgrounds
· Promotion of cultural, educational and aesthetic aspects
· Burials and burial grounds, cremations and cremation grounds, and electric crematoriums
· Cattle ponds, prevention of cruelty to animals
· Vital statistics including registration of births and deaths
· Public amenities including street lighting, parking lots, bus stops and public conviences
· Regulation of slaughter houses and tanneries.
THERE ARE VARIOUS TYPES OF URBAN GOVERNMENTS:
· Municipal corporations
· Municipalities
· Notified area committees
· Town area committees
· Cantonment board
· Township
· Port trust
· Special purpose agency
MUNICIPAL CORPORATION:
The Municipal Corporations are established in the states by the acts of the state legislatures.
· The Municipal Corporations are established in the Union Territories through the acts of the Parliament.
· The Municipal Corporations are created for the administration of big cities.
· The State Election Commission conducts the elections for a Municipal Corporation.
· For that purpose the total area is divided into the wards.
· The people in each ward elect a representative called Corporator / Councilor.
· A Municipal Corporation consists of three different authorities.
· Council
· Standing committees
· Municipal Commissioner
MUNICIPAL COUNCIL:
· The council consists of the members directly elected by the people.
· The council is the deliberative and legislative wing of the Corporation.
· The council is headed by a Mayor.
· The election of the Mayor is decided by the state legislature.
· If it is indirect election the Mayor is elected from among the members of the council.
· The meetings of the council are presided over by the Mayor.
· The Mayor is assisted by the Deputy Mayor.
STANDING COMMITTEES:
· The standing committees are large in size.
· They are created to facilitate the working of the council.
· The standing committees take decisions in their respective fields like education, health, taxation, Public works, finance etc.
MUNICIPAL COMMISSIONER:
· The Municipal Commissioner is appointed by the State Government.
· The Municipal Commissioner belongs to the IAS.
· The Municipal Commissioner is the chief executive authority of the Municipal Corporation.
· The Municipal Commissioner is responsible for implementation of the decisions taken by the council and the standing committees.
MUNICIPALITIES:
· The Municipalities are established up by the acts of state legislatures.
· The Municipalities set for the administration of small cities and towns.
· For the Union Territories the municipalities are set up by the acts of the Parliament.
· The State Election Commission conducts the elections for a Municipality.
· For that purpose the total area is divided into the wards.
· The people in each ward elect a representative called Councilor.
· A Municipality consists of three different authorities.
· Council
· Standing committees
· Chief Executive Officer / Municipal Commissioner
COUNCIL:
· The council consists of the members directly elected by the people.
· The council is the deliberative and legislative wing of the Municipality.
· The council is headed by a Chairman or President.
· The election of the Chairman is decided by the state legislature.
· If it is indirect election the Chairman is elected from among the members of the council.
· The meetings of the council are presided over by the Chairman.
· The Mayor is assisted by the Vice-Chairman.
STANDING COMMITTEES:
· The standing committees are large in size.
· They are created to facilitate the working of the council.
· The standing committees take decisions in their respective fields like education, health, taxation, Public works, finance etc.
THE MUNICIPAL COMMISSIONER OR CHIEF EXECUTIVE OFFICER:
· The Municipal Commissioner is appointed by the state government.
· The Municipal Commissioner is responsible for day to administration.
MISCELLANEOUS:
· The election of Mayor is conducted first, followed by that of Deputy Mayor.
· District Collector is appointed the election officer or returning officer by the State Election Commission.
· All the Corporators and the ex-offico members including MPs, MLAs and MLCs can vote in the election of the Mayor and the Deputy Mayor.
· The nominated corporators are not permitted to vote.
· But, the co-opted members cannot vote in the election of the Mayor or Deputy Mayor.
· For GHMC (Greater Hyderabad Municipal Corporation), Andhra Pradesh the election for Mayor and Deputy Mayor was held on January 3, 2012. In all 216 members (150 corporators and 66 ex-officio members) took part in the election. The 5 nominated members are not allowed to participate in voting.
· The election of Mayor is followed by the election of Deputy Mayor.
· Election of Mayor and Deputy Mayor: Once the presiding officer calls for proposals, a member can propose followed by another member seconding it. If there is a single nomination the election is over. If there is more than one person contesting then there would be counting.
· The parties can also issue whip to its members.
· Read this case:November 2012: A Municipal Corporator G Vanaja (INC) of Borabanda division in GHMC of Andhra Pradesh State has been disqualified for having more than 2 children. The GHMC issued a notification declaring her election invalid after the AP High Court disqualified her as per section 21 B of the GHMC Act, 2009. As per this a person with more than 2 children after 1995 would be disqualified from election from contesting as a member.
· NOVEMBER 2012: another case related to Ravi Yadav (MIM) a corporator from langurhouze in GHMC is also pending before the High Court for the same reason. Initially his election was declared as void by an election tribunal in November 2011 by the chief judge cum election tribunal of city civil courts M Seetarama Murthy for suppressing the facts. The court stated that Uday Kumar (BJP) who secured second highest votes be declared as elected from ward number 69 (Lungar Houz). The GHMC Commissioner referred the case to SEC and Ravi Yadav moved High Court and is pending with the court. The HC granted interim suspension of the operation and effect of the order passed by the election tribunal.
· 2011 Bombay: the Bombay High Court thrown out a Pune man’s plea seeking exception to the 2 child norm for civic poll contestants on the ground that one of his 3 children is disabled (Visually challenged). Justice Sharad Bobde opinioned that this would result discrimination. The person who approached the court was suresh shirude an independent aspirant for the February 2012 civic polls. The 2 child norm was decided by the SC in 2003. The council of suresh shirude. Birendra Saraf argued that the law treats unlikes as same and thus is discriminatory.
· On July 30, 2003: A 3 judge bench of the SC (Justice RC Lahoti, Justice Ashok Bhan and justice Arun Kumar) observed that disqualification on the right to contest for having more than 2 living children does not contravene any fundamental right nor does it cross limits of reasonability. The SC endorsed that this law as a ‘Disqualification conceptually devised in the national interest’.
· 2 CHILD NORM A REPORT OF 2012: a study was conducted by surat based Center for Social Studies (CSS). The CSS is is an autonomous social science research institute supported by the Indian Council of Social Science Research (ICSSR) and Government of Gujarat. According to the study only
6.09 % of elected representatives of PRIs have 2 or less than 2 children. Remaining 93.91 % have more than 2 children.
ZONAL COUNCILS
· The first Prime Minister of India Jawaharlal Nehru proposed that country can be divided into 4 or 5 zonal councils.
· Five Zonal Councils were set up in the year 1956.
· The Zonal Councils have been created by the States Reorganization Act of 1956.
· This acts like platform to discuss certain common issues.
· The purpose is to advice on matters of common interest to each zone.
· Economic Planning
· Social planning
· Border disputes
· Inter-state transport
· Matters arising out of the reorganization of states and the like
· To give advises to the states concerned
· The Home Minister (Central) is the Chairman for all the Zonal Councils.
· The Chief Minister of the concerned state is the Vice Chairman of the Zonal council on rotation.
· The meetings also held on rotation basis.
· Each Zonal Council consists of the Chief Minister and two other ministers of each of the states in the zone and the administrator in the case of a Union Territory.
· The holding joint meeting of 2 or more Zonal councils can also take place.
FIVE ZONAL COUNCILS:
· Northern Zonal Council: Haryana, HP, J&K, Punjab, Rajasthan, Delhi and Chandigarh.
· The central Zonal Council: Chhattisgarh, Uttaranchal, UP and MP.
· The Eastern Zonal Council: Bihar, Jharkhand, Orissa, Sikkim and West Bengal.
· Sikkim was excluded from the eastern council in the year 2002.
· The Western Zonal Council: Goa, Gujarat, Maharashtra, Daman and Diu, Dadra and Nagar Haveli.
· The Southern Zonal Council: AP, Karnataka, Kerala and Tamil Nadu and Pondicherry.
· The North –eastern states Assam, Arunachal Pradesh, Manipur, Mizoram, Meghalaya, Tripura and Nagaland are not included in the Zonal Councils.
· North east Council was set up in the year 1972.
· Sikkim was included in the North East council in the year 2002.
· Sikkim was excluded from the eastern council since 2002.
· The Union Home Minister is the Chairman for all the zonal Councils.
· The Chief Minister of the concerned state where the meeting is led acts as the Vice Chairman on rotation.
· The Chief Secretary of the concerned state is the secretary for the Zonal Council on rotation.
CHAPTER- 23
Services Under the Constitution
· Article 315: There shall be a Public Service commission for the Union and Public service Commission for each state.
· UPSC is a Constitutional body.
· The UPSC conduct examinations for All India Services and other central services. WHAT ARE ALL INDIA SERVICES?
· These are the services recruited by the central government but, posted in the states and salary is also paid by the states.
HOW MANY ALL INDIA SERVICES ARE PRESENT IN INDIA?
· There are 3 All India Services in India.
· IAS – Indian Administrative Service
· IPS – Indian Police Service
· IFS – Indian Forest Service
COMPOSITION:
· The UPSC consists of a chairman and some other members.
APPOINTMENT:
· The Chairman and other members are appointed by the President.
STRENGTH (NUMBER OF MEMBERS):
· The strength is decided by the President of India.
· In general the UPSC consists of 9 to 11 members including the Chairman.
· As on January 5th 2014 the strength is 11 including the chairman.
QUALIFICATIONS:
· The qualifications are not prescribed by the Constitution.
· But, at least half of the members in UPSC should have held office for at least 10 years either under the Government of India OR Government of a state.
CONDITIONS OF SERVICE:
· Decided by the President from time to time.
· The conditions of service should not be varied to their disadvantage.
TERM:
· The Chairman or other members hold office for a term of 6 years
or
· Until they attain the age of 65 years, whichever is earlier.
· After completion of the term the Chairman or other membera, are not eligible for reappointment in the same position.
RESIGNATION:
· The Chairman or members submit the resignation to the President of India.
REPORT OF UPSC:
· The UPSC submits the annual report to the President of India
AND
· The President places the report before the Parliament.
· The report of UPSC is discussed in the Parliament.
REMOVAL:
· The President can remove the chairman or any other member of UPSC if
· The Chairman or member is adjusted as an insolvent.
OR
· Engages during the term of office in any paid employment outside the duties of office.
OR
· In the opinion of the President is not fit to continue in office by reason of infirmity of mind or body.
REMOVAL ON THE GROUNDS OF MISBEHAVIOR:
What is misbehaviour?
· If the Chairman or member is concerned or interested in any contract or agreement made by the government of India or government of a state
OR
· If the Chairman or member participates in any way in the profit of such contract or agreement or in any benefit there from otherwise than as a member and in common with other members of an incorporated company.
· The President can also remove the Chairman or a member of UPSC for misbehavior.
· In the case of misbehavior the President has to refer the matter to the Supreme Court for an enquiry.
· The President can remove the Chairman or member on the advice that is tendered by the Supreme Court.
· The advice tendered (given) by the Supreme Court is binding on the President.
· During the course of enquiry the President can suspend the Chairman or the member.
AFTER RETIREMENT:
· The Chairman of UPSC after retirement is not eligible for further employment under the government of India or government of a state.
· A member of UPSC after retirement is eligible for appointment as the Chairman of UPSC.
· A member of UPSC after retirement is eligible for appointment as the Chairman of a Joint Public Service Commission or State Public Service Commission (provided the he has not attained the age of 62 years)
FUNCTIONS OF UPSC:
· The UPSC conducts the examinations for appointments to the all-India services, central services and Public services of the centrally administered territories.
· The UPSC assists the states if requested by two or more states in framing and operating schemes of joint recruitment for ant services for which candidates possessing special qualification are required.
· The UPSC serves all the needs of a state on the request of the state governor and with the approval of the President.
· The UPSC is consulted on various matters related to
· Matters relating to the methods of recruitment to civil services and for civil posts.
· The principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to the other. ( RDO (Group I) to IAS etc)
RECOMMENDATIONS:
· The recommendations of UPSC are not binding but advisory in nature.
STATE PUBLIC SERVICE COMMISSION
COMPOSITION:
· There is a chairman for SPSC.
· There are other members for SPSC.
· The qualifications of Chairman and members are not specified in the Constitution.
· As nearly as one half of the members should have at least 10 years of experience either under the Government of India or Government of a state.
APPOINTMENT:
· The Chairman and the members are appointed by the Governor.
STRENGTH:
· The strength is decided by the Governor from time to time.
TERM:
· The Chairman and other members of the SPSC hold office for a term of 6 years
OR
· Until they attain the age of 62 years whichever is earlier.
· Initially the retirement age was fixed at 60 years. Through the 41st amendment of 1976 the retirement age is increased to 62 years).
RESIGNATION:
· The Chairman and members submit the resignation.
REPORT OF SPSC:
· The SPSC submits the annual report to the Governor.
· The Governor places the report of SPSC before the State Legislature.
· The report of SPSC is discussed in the State Legislature.
REMOVAL:
· The Chairman and members of SPSC are removed by the President. (Not by the Governor).
· Remember the Chairman and members of SPSC are appointed by the Governor.
· The President can remove the chairman or any other member of SPSC if
· The Chairman or member is adjusted as an insolvent.
· R
· The chairman or member engages during the term of office in any paid employment outside the duties of office.
Or
· The chairman or member, in the opinion of the President is unfit to continue in office by reason of infirmity of mind or body.
REMOVAL ON THE GROUNDS OF MISBEHAVIOR:
What is misbehavior?
· If the Chairman or member of SPSC is concerned or interested in any contract or agreement made by the government of India or government of a state.
OR
· If the Chairman or member of SPSC participates in any way in the profit of such contract or agreement or in any benefit there from otherwise than as a member and in common with other members of an incorporated company.
· The President can also remove the Chairman or a member of SPSC for misbehavior.
· In the case of misbehavior the President has to refer the matter to the Supreme Court for an enquiry.
· If the Supreme Court upholds the cause of removal and advises so then the President can remove the Chairman or member of SPSC.
· The advice tendered (given) by the Supreme Court is binding on the President.
· During the course of enquiry the Governor can suspend the Chairman or member pending the final removal order of the President on receipt of the report of the Supreme Court.
THE CAHIRMAN OF SPSC AFTER RETIREMENT:
· The Chairman of SPSC after retirement cannot be reappointed as the Chairman of the same SPSC.
· The Chairman of SPSC after retirement can be appointed as
· The Chairman of UPSC
· A member of UPSC
· The Chairman of other SPSC
· The Chairman of Joint Public Service Commission (JPSC).
A MEMBER OF SPSC AFTER RETIREMENT:
· A member of SPSC after retirement cannot be reappointed as a member in the same SPSC.
· A member of SPSC can be appointed as
· The Chairman of same SPSC.
· The Chairman of other SPSC.
· The Chairman of other Joint Public Service Commission
· The Chairman of other UPSC.
· A member of other SPSC.
· A member of other Joint Public Service Commission.
· A member of UPSC.
FUNCTIONS OF SPSC:
· The SPSC conducts the examinations for appointments to the services of the state.
· The SPSC is consulted on various matters related to
· All matters relating to the methods of recruitment to civil services and for civil posts.
· The principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to the other.
RECOMMENDATIONS:
· The recommendations of SPSC are advisory in nature and not binding in nature.
JOINT PUBLIC SERVICE COMMISSION
· The Joint Public Service Commission is created by the parliament through a legislation (law).
· The JPSC is a statutory body.
WHAT IS A STATUTORY BODY?
· The body that is created by an act of Parliament.
COMPOSITION
· There is a chairman for JPSC.
· There are other members for JPSC.
QUALIFICATIONS:
· The qualifications of Chairman and members are not specified in the Constitution.
· But, at least half the members of the commission must have had 10 years of service under the Government of India or under Government of a State.
APPOINTMENT:
· The Chairman and the members of JPSC are appointed by the President of India.
STRENGTH:
· The strength of JPSC is decided by the President.
TERM:
·
6
The Chairman and members of the JPSC hold office for a term of
OR
· Until they attain the age of 62 years whichever is earlier.
years
RESIGNATION:
· The Chairman and members of JPSC submit the resignation to the President.
REPORT OF JPSC:
· The JPSC submits the annual report to the Governor of the concerned state.
· Please note: The report of JPSC is not submitted to the President).
· The Governor places the report of JPSC before the concerned State Legislature and is discussed.
REMOVAL:
· The Chairman and members of JPSC are removed by the President. (Not by the Governor).
· The President can remove the chairman or any other member of JPSC if
· The Chairman or member is adjusted as an insolvent.
OR
· The chairman or member engages during the term of office in any paid employment outside the duties of office.
OR
· The chairman or member, in the opinion of the President is unfit to continue in office by reason of infirmity of mind or body.
REMOVAL ON THE GROUNDS OF MISBEHAVIOR:
What is misbehavior?
· If the Chairman or member of JPSC is concerned or interested in any contract or agreement made by the government of India or government of a state
OR
· If the Chairman or member of SPSC participates in any way in the profit of such contract or agreement or in any benefit there from otherwise than as a member and in common with other members of an incorporated company.
· The President can also remove the Chairman or a member of SPSC for misbehavior.
· In the case of misbehavior the President has to refer the matter to the Supreme Court for an enquiry.
· If the Supreme Court upholds the cause of removal and advises so then the President can remove the Chairman or member of SPSC.
· The advice tendered (given) by the Supreme Court is binding on the President.
· During the course of enquiry the President can suspend the Chairman or member pending the receipt of the report of the Supreme Court.
THE CAHIRMAN OF SPSC AFTER RETIREMENT:
· The Chairman of SPSC after retirement cannot be reappointed as the Chairman of the same SPSC.
· The Chairman of SPSC after retirement can be appointed as
· The Chairman of UPSC
· A member of UPSC
· The Chairman of other SPSC
· The Chairman of Joint Public Service Commission (JPSC).
A MEMBER OF SPSC AFTER RETIREMENT:
· A member of SPSC after retirement cannot be reappointed as a member in the same SPSC.
· A member of SPSC can be appointed as
· The Chairman of same SPSC.
· The Chairman of other SPSC.
· The Chairman of other Joint Public Service Commission
· The Chairman of other UPSC.
· A member of other SPSC.
· A member of other Joint Public Service Commission.
· A member of UPSC.
FUNCTIONS OF SPSC:
· The SPSC conducts the examinations for appointments to the services of the state.
· The SPSC is consulted on various matters related to
· All matters relating to the methods of recruitment to civil services and for civil posts.
· The principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to the other.
RECOMMENDATIONS:
· The recommendations of SPSC are not binding, they are advisory.
Chapter-24
TRIBUNALS
The doctrine of separation of powers has been deeply enshrined in our Constitution. However, more than four decades ago, when the Constitution was framed, the activities of the state were relatively few and limited. Since then, the state’s activities have increased considerably and the central and state governments have also entered into commercial and other fields.
The framers of the Constitution could not have anticipated all these, which is way they limited themselves only to certain judicial for a to give relief to the citizens of the country. Perhaps, at that time, they felt that the existing courts of law were sufficient to meet the judicial aspirations of the people and deal with all types of disputes. It was, however subsequently released that ordinary courts of law. With their traditional and procedural limitations, were not adequate to meet the changed situation and solve the various problems that arose in the new socio-economic context. As a result of this, various tribunals are / were established which are not strictly courts in the traditional sense. But they entertain and decide a large number of disputes, following the proper legal procedure. The most important tribunals are.
1. THE SERVICE TRIBUNALS
2. THE CUSTOMS AND EXCISE REVENUE APPELLATE TRIBUNALS
3. THE ELECTION COMMISSION
4. THE FOREIGN EXCHANGE APPELLATE BOARD
5. TE INCOME TAX APPELLATE TRIBUNAL
SERVICE TRIBUNALS
The government is the single largest employer in the country. The number of employees has been increasing year by year consequently the disputes between government and employees regarding services conditions, transfers, promotions, appointments etc. have also increased. These disputes has to be resolved quickly so that the morale of the employees on which they efficiency of the government depends could be sustained. The ordinary courts of law were already over burdened and were not in a position to dispose the cases expeditiously. Hence the government has by the 42nd amendment, inserted Article 323(A) where in a provision was made for the creation of services tribunals.
Article 323(A) provides for the establishment of tribunals at the central and the state level. Consequently, the government enacted the Administrative Tribunals Act in 1985 wherein service tribunals were established at the central and the state level. The tribunal at the Central level is called as the Central Administrative and the tribunal at the state level is called as the State Administrative Tribunal.
THE CENTRAL ADMINISTRATIVE TRIBUNAL
The Central administrative Tribunal was setup on 1/11/1985 to adjudicate on disputes and complaints with respect to condition of services of persons appointed to the public services and posts in connection with the affairs of the Union.
· The jurisdiction the tribunal extends to all the employees of the Central government.
· Disputes relating to the members of defence forces, officers and servants of the supreme courts members of the secretarial staffs of Parliament do not fall with in the jurisdiction of the tribunal.
· By a notification, the service matters related to employees of the Public Sector Undertakings (PSUs) can be brought under the CAT or SATs, as the case may be.
· The Central Administrative Tribunal is located at New Delhi and it operates through 17 regular benches, 15 of which operate at the principles seats of High Courts and the remaining 2 at Jaipur and Lucknow.
· The CAT is multi-member body consisting of a chairman, Vice-Chairman and members. At present, it has a chairman, Vice-Chairmen and 46 members.
· The Chairman and Vice Chairman of the tribunal enjoys the status of a High Court judge.
· The members are drawn from both judicial and administrative streams and are appointed by the President after consulting the CJI.
· The Chairman must be a judge of the High Court or one who served for at least two years as the High Court judge or Vice Chairman of Tribunal.
· They hold office for a term of five years or until they attain the age of 65 years, in case of chairman and Vice-chairman and 62 years in case of members, which is earlier.
· The CAT is not bound by the procedure laid down in the Civil procedure Code of 1908.
· It is guided by the principle of natural justice. These principles keep the CAT flexible in approach. Only a nominal fee of Rs.50 is to be paid by the applicant. The applicant may appear either in person or through a lawyer.
· Originally, appeals against the orders of the CAT could be made only in the Supreme Court and not in the High Courts. However in the Chandra Kumar case (1997), the Supreme Court declared this restriction of the jurisdiction of the High Courts as unconstitutional, holding that judicial review is a part of the basic structure of the constitution.
· It laid down that appeals against the orders of the CAT shall lie before the division bench of the concerned High Court. Consequently now it is not possible for an aggrieved public servant to approach the supreme court directly against an order of the CAT, without first going to the concerned High Court.
Supreme Court Judgement on Administrative Tribunals
In March, 1997, a seven judge Supreme Court bench gave a landmark judgement on the administrative and other tribunals dealing with FERA, tax violations and other cases. The Court declared unconstitutional:
•Section 2D of Art. 332A and Section 3D of Art. 323 B, which excluded the jurisdiction of High Courts and Supreme Court, as judicial review is a part of the 'basic structure' of the Constitution and
•Section 28 of the Administrative Tribunals Act for the same reason. The important features of the verdict are:
• appeals can be made to the division bench of the High Courts on the validity of the rulings of the tribunals before approaching the Supreme Court.
• tribunals including the administrative tribunals are competent to hear cases questioning the validity of relevant legislation.
• when the validity of a law questioning the setting up of a tribunal is to be heard, it can be taken up only in a High Court and not in another tribunal.
• the tribunals are 'specialist bodies' in that they are constituted of trained administrators and also those with judicial experience.
• Supervision of the tribunals is to be done by a body belonging to the law ministry at both the federal and state levels.
STATE ADMINISTRATIVE TRIBUNALS
Article 323(A) of the constitutions provides for the creation of the state Administrative Tribunals in every state. As the name suggests these tribunals operate at the state level and adjudicate on disputes with respect to recruitment and matters concerning recruitment to any civil service of the state of to any civil post under the state. The members of the tribunal are appointed by the President of India after consultation with the Chief Justice.
CUSTOMS AND EXCISE REVENUE TRIBUNAL
The 42nd Amendment along with Article 323(A) has also provided for Article 323(B) wherein a provision has been made for setting up of tribunals other than Administrative (Service) Tribunals to deal with matters relating to : levy-assessment and collection of any tax, industrial and labor disputes. Foreign exchange import and export, ceiling on urban property etc. Under this provision the Parliament has created the customs and Excise Revenue Tribunal in 1986.
The Customs and Excise Revenue Appellate tribunal adjudicates on disputes with regard to the levy, assessment, collection and enforcement of any tax and incidental matters. The President and the members of the tribunal are appointed by the President of India on the recommendation of ta selection committee. Provision has been made to ensure the representation of technical members and judicial members.
ELECTION COMMISSION
Article 324 of the constitution provides for a creation of an independent body name the Election Commission and invests it with certain exclusive powers. Under section 169 of the representation of the People’s Act 1951 the Election Commission is competent to decide on disputes relating to allotment of symbols to political parties and to recognize or de-recognise parties for such purpose. It is these powers which are adjudicatory which endow the Election Commission with the status of a tribunal. An order of the commission can be challenged before the Supreme Court.
FOREIGN EXCHANGE APPELLATE BOARD
The Foreign Exchange appellate Board has been established under the provisions of the Foreign Exchange Regulation Act. Any Person aggrieved by an order of adjudication for committing breech or offence under the foreign exchange regulation act 1973 can file an appeal
to the board. The order of the foreign exchange appellate board is final. However, there is no bar to approaching the Supreme Court.
THE INCOME TAX APPELLATE TRIBUNAL
The Income tax Appellate Tribunal has been constituted under the income Tax Act 1961. The tribunal adjudicates on appeals against the orders passed by the senior officials of the Income Tax Department.
The tribunal comprises judicial and accounted members and sits in benches in various cities. The tribunal functions under the control of the Ministry of Law.
OTHER FORA
Apart from various quasi judicial authorities the government has provided for various other fora for speedy settlement of disputes. Some of the important fora are
1. Arbitration
2. Lok Adalats
3. Public Interest Litigation.
ARBITRATION
Settling disputes by the disputant by referring them to persons in whom disputants have confidence is known as arbitration. In an organized society, people cannot take law into their own hands particularly as a judicial machinery is provided by the state for getting matters settled by competent courts, where judges are appointed by the State and the litigants are meant to bring disputes before them. Arbitration is an extra-judicial forum and an alternative method of settlement of such disputes. It is a process in which parties agree in writing to abide by the judgement of particular persons in specific matters instead of going to the courts for justice.
CHAPTER- 25
Union Territories
A union territory is a type of administrative division in the Republic of India. Unlike the states of India, which have their own governments, union territories are federal territories governed directly by the union government (central government), hence the name Union Territory.
A Union Territory is a like a small state; but it is operated by the Indian government and lacks its own elected government. They are Chandigarh, Dadra and Nagar Haveli, Daman & Diu, Lakshadweep, Delhi, Andaman and Nicobar Islands, and Puducherry.
Why UTs are needed?
• UTs are directly under Centre. States enjoy autonomy and are indirectly under Centre.
Art 239. Administration of Union territories
1. Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such an extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
• Parliament by law may provide for a separate council of minister or a Legislative Assembly.
• Special provisions with respect to Delhi
As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi'(hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. .
Strength of Council of Ministers - restricted to 7 or 1/10th of Legislative Assembly
Art. 240. Power of President to make regulations for certain Union territories 1. The President may make regulations for the peace, progress and good government of the Union territory of;
a) The Andman and Nicobar Islands;
b) Lakshdweep;
c) Dadra and Nagar Haveli;
d) Daman and Diu;
e) Puducherry;
Art. 241. High Courts for Union territories.- (1) Parliament may by law constitute a High Court for a Union territory or declare any court in any such territory to be a High Court for all or any of the purposes of the Constitution.
Recent Developments
Article 370
On 5th of August 2019, the President of India promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019.
§ The order effectively abrogates the special status accorded to Jammu and Kashmir under the provision of Article 370 - whereby provisions of the Constitution which were applicable to other states were not applicable to Jammu and Kashmir (J&K).
§ According to the Order, provisions of the Indian Constitution are now applicable in the State.
§ This Order comes into force “at once”, and shall “supersede the Constitution (Application to Jammu and Kashmir) Order, 1954.”
§ A separate Bill - the Jammu and Kashmir Reorganisation Bill 2019 - was introduced to bifurcate the State into two separate union territories of Jammu and Kashmir (with legislature), and Ladakh (without legislature).
§ Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 was also introduced to extend the reservation for Economically Weaker Sections (EWS) in educational institutions and government jobs in Jammu and Kashmir.
History
§ J&K acceded to the Dominion of India after the Instrument of Accession was signed by Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir, on 26 October 1947.
§ Article 370 of the Indian Constitution provided that only Articles 1 and 370 itself would apply to J&K. The application of other Articles was to be determined by the President in consultation with the government of the state.
§ The Constitution Order of 1950 specified the matters on which the Union Parliament would be competent to make laws for J&K, in concurrence with the Instrument of Accession - 38 Subjects from the Union List were added.
§ The Constitution (Application to Jammu and Kashmir) Order, 1954 settled the constitutional relationship of J&K and the Union of India. It made the following provisions -
§ Indian citizenship and all related benefits (fundamental rights) were extended to the 'permanent residents' of Jammu and Kashmir.
§ Article 35A was added to the Constitution (empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment)
§ The jurisdiction of the Supreme Court of India was extended to the State.
§ Central Government was given the power to declare a national emergency in the event of external aggression. The power in case of internal disturbances could be exercised only with the concurrence of the State Government.
§ Normalized the financial relations between the Centre and J&K
Article 370 - Features and Provisions
§ Present in part XXI of the Indian Constitution which comprises of Temporary, Transitional and Special Provisions with rest to various states of India.
§ Forms the basis of the “Special Status” of J&K.
§ Provides for a separate Constitution of J&K.
§ Limits the Union Parliament’s power to make laws for J&K to those subjects mentioned in the Instrument of Accession (defense, foreign affairs, and communications) and others as and when declared by the Presidential Orders with the concurrence of the Government of the State.
§ Specified the mechanism by which the Article shall cease to be operative. That is, on the recommendation of the Constituent Assembly of the State before the President issues such a notification. However, this provision has been amended by the Constitution (Application to Jammu and Kashmir) Order, 2019.
Was it Temporary
§ The Article was introduced to accommodate the apprehensions of Maharaja Hari Singh who would not have acceded to India without certain concessions.
§ Territorial integrity was of paramount importance to India post-independence, thus, such a special provision was inducted in the constitution.
§ The provision, however, is part of the “Temporary, Transitional and Special Provisions” of our constitution.
§ Moreover, Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it.
§ Another interpretation was that accession was temporary until a plebiscite.
Issues in Revoking
§ Article 370 is the bedrock of the constitutional relationship between Jammu and Kashmir and the rest of India.
§ It has been described as a tunnel through which the Constitution is applied to J&K.
§ India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status.
§ By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional amendments.
§ However, abrogating the article altogether may threaten the peace in the state which is already a hotspot of conflicts and militancy.
§ It will completely change the relationship between the state and the rest of India.
§ It will also clear the path for abrogating Article 35A which would allow Indian citizens to purchase land and settle permanently in J&K.
§ Thus, the move is bound to have a significant impact on the demography, culture, and politics of J&K.
NO ARTICLE 370
WHAT CHANGES IN J&K?
SL
No
BEFORE
NOW
1
Special powers exercised by J&K
No special power now
2
Dual Citizenship
Single citizenship
3
Separate flag for J&K
Tricolour will be the only flag
4
State in-change of policing
Centre supervises policing
5
Article 360 (Financial Emergency) not applicable
Article 360 (Financial Emergency) applicable
6
No reservation for minorities
Minorities will be eligible for reservation
7
Indian citizens from other states cannot buy land or property in
People from other states will now be able to purchase land or
J&K
property in J&K
8
RTI not applicable
RTI will be applicable
9
Duration of Legislative Assembly for 6 years
Assembly duration in union territory of J&K will be 5 years
UT WITH & WITHOUT LEGISLATURE WHAT IS THE DEFFERENCE?
WITH LEGISLATURE
NATIONAL CAPITAL PUDUCHERRY JAMMU AND TERRITIORY OF DELHI KASHMIR
· According to the provisions under section 3 of the Government of Union Territories Act, each UT has the option of forming a Legislative Assembly, which means, they elect their own representatives and the local government.
· UTs have the option of forming their own governments and having a legislature with elected members and chief minister (like New Delhi and Puducherry), yet the powers of such governments are lesser than the state governments.
· They are ruled directly by the central government through lieutenant governor as the administrator.
· He is representative of the President of India. They have a limited administerial role.
· UTs with Legislature send representatives to the Rajya Sabha & the Lok Sabha.
WITHOUT LEGISLATURE
ANDAMAN &
CHANDIGARH
DADRA AND
NICOBAR ISLANDS
DAMAN AND DIU
LAKSHADWEEP
NAGAR HAVELI
LADAKH
· They are run by an administration led by a Lieutenant Governor.
· The Lieutenant Governors are appointed by the President.
· They send representatives only to the Lok Sabha.
Chapter-26
THE COMPTROLLER & AUDITOR-GENERAL (CAG)
• The Constitution under Article 148 provides form independent office of CAG.
• CAG is the head of Indian Audit and Account Department of Government of India.
• He is appointed by the President for a full term of 6 years or till 65 years of age, whichever is earlier.
• He is the custodian of the public purse, controlling the entire financial system of the country- the Union and the States.
• Dr. B.R. Ambedkar said it to be the most important office under the Constitution.
Duties of CAG
1. To audit the accounts of the Union and the States and submit the Report to the President or the Governor, as the case may be.
2. To ensure that all expenditures from the Consolidated Fund of India (CFI) or States are in accordance with the law.
3. To oversee that the money sanctioned by the Parliament or State Legislature is being spent for the particular purpose for which it has been issued.
4. Also, to audit and report on the receipts and expenditure of the
a) Government companies;
b) all bodies and authorities 'substantially financed' from the Union or State revenues; and
c) other corporations or bodies when so required by the laws relating to such corporations or bodies.
Safeguards in the Constitution for CAG
Since the office of the CAG is very important, to make this office independent from any control of the Executive, certain safeguards have been provided in the Constitution and also by an Act of Parliament -Comptroller and Auditor General (Conditions of Service) Act., 1971.
The CAG can be removed only on an address from both Houses of Parliament on the grounds of proved misbehaviour and incapacity in a manner a judge of the Supreme Court is removed.
He is not eligible for any further appointment either under the Union or the State after his retirement.
His salary and other allowances are charged upon the Consolidated Fund of India and are non- votable in the Parliament.
His salary and other allowances cannot be reduced to his disadvantages after his appointment, the only exception being in the case of financial emergency.
How the CAG Functions?
The CAG audits the accounts of the Union and the States and submits the Report to the President who causes it to lay down before the Parliament. This report is immediately referred to the Public Accounts Committee (PAC) of the Parliament which, after a detailed study prepares another report which is placed in the Parliament. Thus, in fact, discussion in the Parliament takes place on the secondary report of the Public Accounts Committee. Public Accounts Committee, in this process, functions in close associations with the CAG. Thus, CAG is also referred to as the friend, philosopher and guide of the PAC,
Is CAG just an Auditor?
Though the designation is that of Comptroller and Auditor General, the authority acts functionally as an auditor only. The authority has no control over the issue of money from the Consolidated Fund of India or that from a State. The CAG is concerned only at the stage of audit after the expenditure has already taken place. Unlike the same authority in Britain, the CAG in India is not empowered to ensure
that "the grants voted and appropriation made by Parliament are not exceeded". This is because, the authority argue, such an empowering would entail serious overhauling of the entire accounts and financial control mechanism.
Another question is whether the CAG can comment on the extra vagance of the expenditure by the executive and suggest economic measures. There prevails two views about this. One view says that the CAG has no right to comment on this because the executive is responsible to the Parliament and not to the CAG. Another view holds that since the financial control is ultimately under the Legislature, there is a need for comprehensive auditing to provide economy, efficiency and effectiveness to the whole process. So, the CAG has been given the right to comment and even suggest measures for this.
The CAG Report has in recent times brought to the public notice a number of financial mishandlings at various levels, the most prominent being the Animal Husbandry scam in Bihar.
CHAPTER- 27
The Attorney General of India
• Is the first Law Officer of the Country.
• He is assisted by 2 Solicitors General and 4 Additional Solicitors General.
Art. 76. Attorney-General for India
1. The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be attorney General for India.
Duties
· The Attorney General of India has the right to speak and take part in the proceedings of both the houses of Parliament or in the joint session of the parliament without a right to vote.
· Only the members of the Parliament have the right to vote in their respective house.
· Gives advice to the Government of India upon such legal matters which are referred by the President.
· Performs functions of legal character that are assigned by the President.
· Discharges the functions conferred by the Constitution or any other law.
· He appears on behalf of the Government of India in all cases in the Supreme Court in which the Government of India is concerned.
· Represents the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
· Appears in any High Court in any case in which the Government of India is concerned.
· He has the right to audience in any court in the territory of India.
Privileges
• First law officer of Govt. of India
• In the Performance of his duties he has right of audience in all courts in the territory of India
• He has right to speak and can take part in the proceedings of the Parliament.
• But he has no right to vote
•He is entitled to all the privileges and immunities as a member of parliament.
• He is not a member of cabinet as in the case of AG. In US & UK.
• He holds office during the pleasure of President - a political appointment.
Salary
• He receives such remuneration as the President may decide-He receives the same as that of a Supreme Court Judge
Chapter-28
ADVOCATE GENERAL OF THE STATE
· This office is just similar to the office of the Attorney-General.
· Article 165 of the Indian Constitution provides for the office of the Advocate General at the states.
· The Advocate General is the first law officer at the state level.
APPOINTMENT:
· The Advocate General is appointed by the Governor.
QUALIFICATIONS:
· The Advocate General must be qualified to be appointed as a Judge of a High Court.
TERM:
· The Advocate General holds the office during the pleasure of the Governor.
REMOVAL:
· The Advocate general is removed by the Governor.
RESIGNATION:
· The Advocate General submits the resignation to the Governor.
SALARY:
· Decided by the Governor.
FUNCTIONS:
· The Advocate General is the first law officer of the state.
· The Advocate General gives advice to the Government of the state upon such legal matters which are referred by the Governor.
· The Advocate General appears on behalf of the Government of the state in all cases in any Court in which the Government of the state is concerned.
· The Advocate General has the right to speak and take part in the proceedings of both the houses of state Legislature without a right to vote.
· Only the members of the State Legislature have the right to vote in their respective house.
· The Advocate General enjoys all the privileges and immunities that are available to a Member of State legislature.
CHAPTER- 29
Emergency Provisions
Introduction
The Institution envisages a federal set-up of India but recognizes the need for unified action during emergencies. When an Emergency is proclaimed the freedom of the States is drastically curtailed and the federal government acquires extensive powers.
NATIONAL EMERGENCY
Art 352
• When country is threatened by war, external aggression or internal armed rebellion or a likelihood of it. For the whole of the country or a part of it.
• National Emergency can be imposed by President on advice by Council of Ministers cabinet in writing.
• Both the Houses should approve within 1 month
• National Emergency will be in force for 6 months from the day Parliament approves.
• If Lok Sabha is dissolved, Rajya Sabha should approve.
• It should be approved by Lok Sabha within 30 days of first sitting.
• Should be approved by a majority as under Art 368
• Parliament can extend for any number of times but each time for 6 months.
Consequences of National Emergency
1. Nation looses its federal character.
• President can direct state governments on all subjects.
• State Executive still functions but under the guidance of Centre.
2. Effects on Legislature
• Life of Lok Sabha can be extended not more than One year at a time during National Emergency
• State List behaves like Concurrent List.
3. Effects on Financial Relations
• President can modify distribution of finance subject to the approval of Parliament
• modification should not exceed the end of financial years, in which National Emergency ended.
4. Effects on Fundamental Rights
• Art 358-Along with National Emergency declaration, Art 19 automatically suspended.
• Art 359- Though separate proclamation, President can suspend rest of Fundamental Rights except Art 20 and 21.
• Art 32- Partially suspended.
TERMINATION OF EMERGENCY
A Proclamation of Emergency may terminate in three ways:
i) Such a proclamation shall cease to operate at the expiration of 30 days after the proclamation is made unless a resolution approving such a proclamation is passed by each House of Parliament in the meantime.
ii) Further, such a proclamation shall cease to operate at the end of six months from the date on which it was approved by the Parliament, unless another resolution approving such proclamation is again passed by each House in a similar manner before the last proclamation expires.
iii) However, a Proclamation of Emergency can be terminated even earlier if the President issues a proclamation of revocation any time that the House of the People passes a resolution disapproving of the issue or continuance of the proclamation, in simple majority. Rajya Sabha have no role in disapproving national emergency.
For the purpose of convening a special sitting of the House of the People for passing such a resolution of disapproval it has been provided that not less than 1/1 Oth of the members of the Lok Sabha give a notice in writing to the Speaker or to the President (when the House is not in session) to convene a special sitting of the House for this purpose, within 14 days from the date of service of such notice.
The provisions of Article 352 were made more stringent by the Constitution (44th Amendment) Act, 1978 which came into effect from 20th June, 1979. This was prompted by the sad experience of the Emergency declared on 25th June, 1975 on grounds of 'internal disturbance'. During this period Congress Party led by late Indira Gandhi was in power. Emergency on grounds of 'internal disturbance' was proclaimed even as the earlier Proclamation of Emergency on grounds of war with Pakistan in December 1971 was in operation. The proclamation of December 1971 was in operation even much after the war was over.
Dissatisfaction was growing among the opposition parties who were demanding the revocation of the Proclamation of Emergency made in 1971 and had given a call to launch a movement with a view to compelling the Prime Minister to resign from her post as her election to the Lok Sabha was declared void by the Allahabad High Court. The opposition parties led by Jay Prakash Narayan, Ram Manohar Lohia and others had put up a siege around Mrs. Gandhi's residence. Disturbed by all this Mrs. Gandhi advised the President to proclaim Emergency without consulting her cabinet colleagues. Her Cabinet colleagues were found dumb-struck when they listened her speech proclaiming a fresh Emergency on grounds of internal disturbance on All India Radio. The cabinet was simply Informed' about the Proclamation of Emergency which was a fait accompli.
Emergency provisions vest tremendous power in the Executive. In the Constituent Assembly certain members had expressed the view that this power might be misused by the Executive. And, this is what happened in 1975 when Emergency provisions were used to perpetuate the rule of one party which was in power. The administration had no respect for individual liberty. Lakhs of people were put behind bars without making specific charges against them. The democratic process had virtually come to a standstill. It led to massive unrest in the society. Therefore, as promised to the electorate, the Janata Government enacted the 44th Amendment and incorporated certain safeguards in the Constitution with a view to checking the abuse of Emergency powers of Government in future.
Following are the safeguards incorporated in Article 352 by the Constitution (44th Amendment) Act, 1978 which came into effect from 20th June 1979:
1. The expression "internal disturbances" being a vague one was substituted by a concrete expression - "armed rebellion".
2. Now the Proclamation of Emergency by the President can be made only when the decision of the cabinet is communicated to him in writing. Oral advice tendered by the Prime Minister will not be sufficient for the issuance of such proclamation as happened earlier.
3. Prior to the 44th Amendment a Proclamation of Emergency could remain in force in the first instance for "two" months. But once approved by Parliament Emergency could remain in force indefinitely, i.e. as long as the Executive wanted it to continue. After the 44th Amendment, a Proclamation of Emergency may remain in force in the first instance for "one" month. Such a proclamation if approved by Parliament, shall remain in force for the period of "six months" a time
unless revoked earlier. However, it may continue indefinitely if such resolutions are passed every six months.
4. Earlier approval of such proclamation by Parliament was to be on the basis of a simple majority, but at present it needs a special majority.
5. There was no Parliamentary control once a Proclamation of Emergency was approved by it. But now a special sitting of the Lok Sabha can be held for the purpose of considering its disapproval.
6. Earlier, under Article 358 the Fundamental Rights enumerated in Article 19 were automatically suspended whether the Proclamation of Emergency was based on the basis of war, external aggression or internal disturbances. But now, after 44th Amendment Act Article 19 is automatically suspended only when an Emergency is declared on the basis of war or external aggression and not on the basis of armed rebellion, i.e. Article 19 cannot be suspended during an Emergency if it is proclaimed on the basis of armed rebellion.
7. After the 44th Amendment Act, during an Emergency, Article 20 and 21 cannot be suspended. Prior to the Act, any or all of the Fundamental Rights could be suspended when an Emergency was in force.
EFFECTS OF PROCLAMATION OF EMERGENCY
During an Emergency the federal government acquires the character of a unitary system. The Executive and the Legislature of the Union shall have extraordinary powers during an Emergency.
The effects of a Proclamation of Emergency may be discussed under four heads:
i) Executive; ii) Legislative; iii) Financial; and iv) with regard to the status of Fundamental Rights.
1. Executive: During the operation of an Emergency the President is empowered to issue directions to the States as to the manner in which their executive power is to be exercised. Unlike in normal times when the President has the power (Under Article 256-57) to give directions to states only on certain matters, during Emergency he can issue directions to States on all matters. The administration of the country, therefore will function as under a unitary system with local subdivisions.
2. Legislative: With the Proclamation of Emergency, the legislative power of the Union Parliament automatically widens and it can enact laws even on subjects enumerated in State List. During Emergency although legislatures of the states are not suspended, the distribution of legislative powers between the two sets of government is suspended.
During the operation of Emergency the Parliament may, by law, extend the normal life of the house of the people for a period not exceeding one year at a time, but in any case not exceeding six months after the Proclamation of Emergency has ceased to be in operation. The life of the State Legislative Assemblies can also be extended by law, by the Parliament in a like manner.
3. Financial: During the operation of a National Emergency the President shall have the Constitutional power to modify the provisions of the constitution relating to the allocation of financial relations between the Union and States, by his own order. However no such order shall have effect beyond the financial year in which the proclamation on Emergency ceases to be operative. Such order of the President in subject to the approval of the Parliament.
4. On Fundamental Rights: Articles 358-359 lay down the effects of a Proclamation of Emergency upon Fundamental Rights. Article 358 frees the State from the limitations imposed by Article 19 during the Proclamation of Emergency operative on grounds of war or external aggression (but
not armed rebellion). It is to say that the rights conferred by Article 19 automatically gets suspended when the Emergency is proclaimed on such grounds.
Further, Article 359 empowers the President to suspend, by an order, all or any of the fundamental Rights enumerated in Part III of the Constitution except Article 20 and 21.
PROCLAMATION OF PRESIDENT’S RULE IN A STATE
Art 356
· If president feels that a state government cannot function in accordance to the provisions of the Constitution.
· Both the houses of Parliament should approve within two months with simple majority.
· Approval for not more than 6 months from the date of proclamation.
· Again for another 6 months, Art 356 can be extended
· Beyond 1 year on two counts
1. if national Emergency is in force
2. If Chief Election Commissioner declares that elections cannot be held in prevailing circumstances. Another 2 years, Art 356 can be extended like this, but 6 months at a time.
· Beyond 3 years, Constitution amendment is required
42nd AA: Art 356 can be imposed for 1 year at a time after Parliament’s approval 44th AA: Restored to 6 months.
This new 1+2 year system introduced EFFECTS.
· Administrative – president takes over Council of Ministers dismissed.
· Legislative: Assembly dissolved or kept in suspended animation.
· parliament assumes exclusive legislative jurisdiction.
Art. 352 Vs Art. 356
1. Distribution of Power between Centre and States-Fundamental changes in Art 352 but n Art 356, only the state in which Art 356 is imposed.
2. Art 352 – State Legislative continues, Art 356-Legislative Assembly suspended / dissolved.
3. Art 352 – Financial distribution modified Art 356 no modification.
4. Art 352 – Fundamental Rights are suspended. Art 356 no such changes.
5. Art 352 - President and Council of Ministers stay, Art 356 Council of Ministers are dismissed and Governor continues to stay and rule
Proclamation of National Emergency till date
There have been three proclamations of National Emergency in India – in October 1962 at the time of the Chinese aggression, in December 1971 in the wake of the war with Pakistan and in June 1975 on grounds of internal disturbance.
1. (October 26, 1962 – January 10, 1968) : During the time of the first Proclamation of Emergency under Article 352 proclaimed on October 26, 1962, it was provided by a Presidential order, issued under Article 359; that a person arrested or imprisoned under the Defence of India Act would not be entitled to move any court for the enforcement of his Fundamental Rights under Article 14, 19 or 21.
This Proclamation was revoked on January 10, 1968.
2. (December 3, 1971 – March 1977) : On the eve of Pakistan’s undeclared war against India this Emergency was proclaimed. Although there was a ceasefire soon followed by the Shimla Agreement between India and Pakistan, the proclamation of 1971 was continued, owing to the persistence of hostile attitude of Pakistan. It was thus in operation when the third proclamation of June 25, 1975 was made.
3. June 25, 1975 to March 1977): While the two preceding proclamations under Article 352 were made on the ground of “external aggression”, the third Proclamation of Emergency was made on the ground of “internal disturbances”, Both the second and third proclamations were revoked in March, 1977.
Article 356
The Constitution of India provides for carrying on the administration of a state by the Union Government in case of a failure of the constitutional machinery of the state. The administration of the State in such situations can be taken over by the Centre through a presidential proclamation made under Article 356. The Constitution empowers the President to make a proclamation under Article 356 on two grounds:
a) Article 355 States - "It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution". So the President is empowered to make a proclamation under 356, when he is satisfied that the Government of a State cannot be carried on in accordance with the provisions of the Constitution, either on the report of the Governor of the State or otherwise. Here the expression "otherwise" means that the President can act even on the basis of press-reports or information obtained from any reliable source.
b) In pursuance of its duty (as Stated in Article 355) to ensure that the government of every state is carried on in accordance with the provisions of the Constitution the centre can, time to time, issue "directions" under Article 256 to States. Then, Article 365 empowers the President to make a proclamation under Article 356 (President Rule) where any State has failed to comply with, or to give effect to, any directions given by the Union, in the exercise of its executive power to the State.
The duration of such proclamation shall ordinarily be for two months. If, however, such proclamation is laid down before each House of the Parliament and is approved by the Parliament it will be in operation for six months from the date of the issue of the proclamation. It can be approved by the Parliament for a further period of six months.
If, however, the proclamation was issued at a time when the Lok Sabha was dissolved or dissolution took place before it was approved by the Parliament, the proclamation would cease to operate on the expiry of 30 days from the date on which the Lok Sabha first met after its reconstitution, unless the proclamation is approved by the Parliament.
Further, such a proclamation may remain in force for a maximum period of three years if the proclamation is regularly approved by the Parliament every six months. However, if the duration is
sought to be extended beyond one year, two other conditions, as inserted by the 44th Amendment Act, 1978 have to be
i) Such proclamation can be extended beyond a period of one year if a Proclamation of Emergency is in operation, in the whole of India or as the case may be in the whole or any part of the State in which President Rule is sought to be imposed.
ii) If the Election Commission certifies that the continuance of the proclamation is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned.
Another noteworthy point is that by the 42nd Amendment, 1976, the President's satisfaction for the making of a proclamation under Article 356 had been made immune from judicial review; but the 44th Amendment, 1978 has removed that constraint, so that the Courts may now interfere if the proclamation is mala fide or the reasons disclosed for making such proclamation are not bona fide.
So far Article 356 has been used recklessly by the Government ul the day at the Centre. Many a time it has been used to punish the State government in case the government of the day in the State belongs to a different political party or a coalition nl parties from that of the Centre. This has been a tremendous cause of conflict in the Centre-State relations. Therefore Sarkaria Commission, constituted in 1983 to give Report on strengthening the Centre-State relations, recommended that the provision of Article 356 should be used 'as a last resort' and, therefore, should be 'sparingly used' - when all other alternatives have been exhausted by the Centre.
In a landmark judgment, in March 1994, dealing with Article 356 the Supreme Court laid down the following propositions:
• Presidential proclamation dissolving a State Legislative Assembly is subject to judicial review. It is of the view that the power of dissolving a Legislative Assembly can be exercised by the President only after the proclamation is approved by the Parliament. Till the time the proclamation is approved by the Parliament the Legislative Assembly should be kept in suspended animation.
• Burden lies on the Union Government to prove that relevant and substantial material existed (to justify the issue of such proclamation).
• Court would not go into the correctness of the material.
• If the Court strikes down the proclamation saying that it was a mala fide act it has the power to restore the dismissed State Government to office.
• A State Government pursuing anti-secular policies is liable to action under Article 356.
Effects of a Proclamation under Article 356
By issuing a proclamation, the President may:
• Assume to himself all or any of the Executive functions of the State or of any other authority except powers vested in a High Court.
• Declare that the Legislative powers of the State shall be exercisable by or under the authority of Parliament. In a nutshell, by such proclamation, the Union would assume control over all functions in the State administration except judicial.
When the State legislature is thus suspended or dissolved as a result of the proclamation the Constitution empowers:
• the Parliament to delegate the legislative power of the State to the President or any other authority specified by him;
. the President to authorise, when the Lok Sabha is not in session, expenditure from the Consolidated Fund of the State pending the sanction of such expenditure from Parliament.
• the President to promulgate ordinances for the State administration when Parliament is not in session.
Practically it is the Governor of the concerned State who exercises, on behalf of the President, all the executive powers of the State taken over by the President on account of a Proclamation made under Article 356. Governor, therefore, acts as the agent of the Centre. Therefore, administration during such proclamation is better known as President's Rule.
RELATION BETWEEN ART. 355, 356 AND ART. 365
Article 355
Duty of the Union to protect States against external aggression and internal disturbance. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and lo ensure that the government of every State is carried on in accordance) with the provisions of this Constitution.
Article 356
Provisions in case of failure of constitutional machinery in States. (1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation— a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor.
Article 365
Effect of failure to comply with, or to give effect to, directions given by the Union. Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution.
FINANCIAL EMERGENCY UNDER ART. 360
• Art. 360 states that if the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part thereof is threatened, he may declare a state of financial emergency.
• During the period when such Proclamation is in operation, the executive authority of the Union extends to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions
• Any such directions may also include:
i) a provision requiring the reduction of salaries and allowances of all or any class of person serving a State or the Union.
ii) a provision requiring all Money Bills or other financial Bills to be reserved for the consideration of the President after they are passed by the Legislature of the State.
• A proclamation issued under Art. 360 will remain in force for two months, unless before the expiry of the period it is approved by both the Houses of the Parliament.
• Once approved it remains in force till revoked by the President.
• No emergency under Art. 360 has been issued so far.
A COMPARISON OF THE TYPES OF EMERGENCIES
NATIONAL EMERGENCY
PRESIDENT RULE
FINANCIAL EMERCENGY
1. Main article
352
356
360
2. Scope
Whole / part of the country
A State
Whole / part of the Country
3. Conditions
War / external aggression / armed rebellion: actual or apprehended
Breakdown of Constitutional machinery in a State
Threat to financial stability or credit of the country / part of it
4. State Executive status
The Union executive can give direction to the State
The Union gains full authority over the State.
The Union Executive can given direction to the State on financial matters.
5. State Legislature’s Status
The Union legislature’s scope extends to the state list also and co-exists with the State’s legislative powers a as regards this list.
The Union Legislature takes over the State’s Legislature business as the State Legislature is suspended dissolved.
The State’s financial Bills can be reserved for the President’s consideration.
6. State Judiciary’s status
Not affected
Not affected
Not affected.
7. Major effects
a) Fundamental Rights can be frozen
b) Union executive and legislature get extra authority over their state counterparts.
c) Lok Sabha’s Assembles term
The State administration is run under the control of the Union.
The State legislature ceases to exist / operate
Financial procedures re tightened.
Salaries, including those of the Supreme Court / High Curt Judges, can be reduced.
can be extended
8. Procedure for invocation
Cabinet decision to this effect is communicated in writing to the president who then promulgates Emergency
The President issues order on normal executive advice with or without the Governor’s report
The President issues order on normal executive advice.
9. Operation time
Six months; can be extended indefinitely
Six months: can be extended upto three years. After one year, national Emergency and Election Commission’s recommendations
are required.
Six months can be extended indefinitely.
10. Continuation and extension procedure
a) should be ratified by Parliament within one month of promulgation
b) In case the Lok Sabha is dissolved during this period and the proclamation has been passed by the Rajya Sabha, it must be ratified within thirty days of the first sitting of the New Lok Sabha.
c) Extension requires special
Should be ratified by Parliament within two months.
In case the Lok Sabha is dissolved during this period and the proclamation has been passed by the Rajya Sabha, it must be ratified within thirty days of the first sitting of the New Lok Sabha Extension requires simple
majority.
Should be ratified by parliament with in two months.
In case the Lok Sabha is dissolved during this period ad the proclamation has been passed by the Rajya Sabha it must be ratified within thirty days of the first sitting the New Lok Sabha.
Extension requires simple
majority
majority.
CHAPTER- 30
Amendment of Indian Constitution
Amendment: amendment means minor alteration or addition to a document etc. It means, therefore, that amendment does not entail substantial changes in the existing provisions. But, amendment as mentioned in Article 368 of the Indian Constitution does involve substantial changes, though not transformation of the existing structure. As per this Article amendment involves 'addition, variation or repeal' of any provision of the Constitution. The Parliament, by 42nd Constitution (Amendment) Act, has amended the provisions of the Constitution to such an extent that it has now come to be known as a mini Constitution'.
Procedures for Amendment: Constitution of India vests constituent power upon the ordinary legislature of the Union, i.e. Parliament, and there is no separate body for amending the Constitution, as exists in some other Constitutions of the world.
Certain provisions of the Constitution can be altered by the Union Parliament in the ordinary process of Legislation, i.e. by a simple majority. Those provisions are as follows:
a) Admission or creation of new States and alteration of areas, boundaries, or names of existing ones (Article 2,3 and 4),
b) Creation or abolition of Legislative Councils in a State (Article 169),
c) Administration and control of Scheduled areas and Scheduled Tribes (para 7 of the 5th Schedule), and
d) Administration of tribal areas in the States of Assam, Meghalaya and Mizoram (para 21 of the 6th Schedule).
However, alteration of these provisions of the Constitution does not deem to be amendment of the Constitution'.
Other provisions of the Constitution can be changed only by the process of 'amendment' which is prescribed in Article 368 of the Constitution. But again, a differentiation has been made in the procedure for amendment, according to the nature of provisions sought to be amended: while in all cases of amendment a Bill has to be passed by both Houses of the Parliament by a special majority', in the case of certain provisions which affect the federal structure of the political system a further step is required, i.e. a ratification by the Legislature of at least half of the States, before the Bill is sent for President's assent. Thus there are two ways by which amendment can be effected in the Constitution. Those are as follows:
1. A Constitution (Amendment) Bill can be introduced by a minister or private member in either House of the Parliament. After it is passed in each House by a special majority', it is presented to the President for his assent. Upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.
A special majority means a majority not less than 2/3rd ol tin-members present and voting and it should not be less than tin' absolute majority of the House, i.e. not less than 50% of the toi.il membership of the House.
2. A Constitution (Amendment) Bill seeking change in the provision', which affect the federal structure requires, apart from being passed in each House separately by a special majority, a ratification by the legislatures of at least half of the States, before the Bill is presented to the President for his assent. Such provisions relating to the federal structure are as follows:
• The manner of election of the President;
• Extent of the executive power of the Union and the States;
• The Supreme Court and the High Courts;
• Distribution of the Legislative power between the Union and the States;
• Any of the lists in the 7th Schedule;
• Representation of the States in Parliament [Article 80-81, 4th Schedule];
• Provisions of Article 368 itself.
Distinctive Features of the Amending Procedure
Following are the distinctive features of the amending procedure as prescribed in Article 368 of the Indian Constitution:
1. In India there is no separate body for amending the Constitution. The Constitution of India vests the constituent power upon the ordinary legislature of the Union, i.e. the Union Parliament.
2. The State Legislature cannot initiate any proposal for amendment of the Constitution. An amendment Bill or proposal can originate only in either House of the Union Parliament.
3. Provision for Joint Session of the two Houses is not available in the case of Constitution (Amendment) Bills. Such Bills have to be passed separately in each House of the Parliament.
4. The prior recommendation of the President is not required for introducing in Parliament any Constitution (Amendment) Bill.
5. After the Constitution (24th Amendment) Act, 1971, it has been made obligatory for the President to give his assent to a Bill for amendment of the Constitution, when it is presented to him after its passage through the legislature.
AMENDMENT BY SIMPLE MAJORITY
A bill seeking to amend the following provisions of the Constitution requires only simple majority and such a Bill is not deemed to be a Constitution (Amendment) Bill under Art. 368 of the Constitution:
• Admission or establishment of new State, formation of new States and alteration of areas, boundaries or names of existing ones (Arts. 2, 3&4);
• Creation or abolition of Legislative Councils in a State (Art. 169);
• Administration and control of Scheduled areas and Scheduled Tribes (para 7 of the Fifth Schedule), and
• Administration of Tribal areas in the states of Assam, Meghalaya and Mizoram (para 21 of the Sixth Schedule).
AMENDMENT BY SPECIAL MAJORITY AND RATIFICATION BY STATES
A Bill seeking to amend the following provisions of the Constitution has to be passed by a special majority of both the Houses of Parliament and has also to be ratified by the legislatures of nor less than one-half of the States, by resolutions to that effect passed by those Legislatures before such a Bill is presented to the President for assent.
• the election of the President (Arts. 54 & 55);
• the extent of the executive power of the Union and the States (Arts. 73 & 162);
• the Supreme Court and the High Courts (Art. 241, Chapter IV of Part V, and Chapter V of Part VI of the Constitution);
• distribution of legislative powers between the Union and the States (Chapter I of Part XI and the Seventh Schedule of the Constitution);
• representation of States in Parliament; or
• the procedure for amendment of the Constitution itself (Art. 368). The Constitution does not provide for any time limit within which the states must signify their ratification of a Constitution (Amendment) Bill, referred to them for this purpose.
IMPORTANT AMENDMENTS
• The first Constitutional Amendment was carried out in 1951 to overcome difficulties created by Supreme Court due to its decisions regarding fundamental rights, specially the right to equality before law, right to freedom of speech and right to private property. It also added a new Schedule to the Constitution (the IX Schedule) and included certain Acts in the list, which could not be challenged by the courts, i.e. IX Schedule is beyond judicial review.
• The Seventh Amendment was carried out in 1956 to implement the States Reorganisation Plan. It abolished the existing classification of states into three categories -Part A, Part B and Part C. It redesignated the Part C states as Union Territories and made special provision for Andhra, Punjab, and Bombay state, etc. It also reallocated seats in the Rajya Sabha and in the Union and State legislatures. The other changes effected by this amendment related to appointment of additional and acting judges, High Court and their jurisdiction, etc.
• The Fourteenth Amendment was carried out in 1962 and incorporated the territory of Pondicherry in First Schedule as a union territory. It also provided for the creation of legislatures and Councils of Ministers in some of the union territories.
• The Twenty-fourth Amendment was carried out in 1971 to overcome the restrictions imposed by the Supreme Court on Parliament regarding amendment of Fundamental Rights (as a result of Golak Natha case). It authorised Parliament to amend by way of addition, variation or appeal, any provision of the Constitution notwithstanding anything in the Constitution.
• The Twenty-fifth Amendment was carried out in 7972. It further restricted the right to private property and provided that a law passed by the state to give effect to Directive Principles, under Article 39 (b) or (c) could not be declared void on the ground that it was inconsistent with rights conferred by Articles 14, 19 and 31.
• The Thirty-fifth Amendment: accorded status of associated state to Sikkimand ended its status of a protectorate kingdom.
• The Thirty-sixth Amendment camed out in 1975 integrated Sikkim with India and it became a full-fledged state.
• The Forty-second Amendment was carried out in 1976. It was the most comprehensive amendment carried out so far and made fundamental changes in the constitutional structure. It incorporated the words 'Socialist', 'Secular' and 'integrity' in the Preamble, asserted the primacy of Directive Principles over Fundamental Rights; incorporated fundamental duties of the citizens in the Constitution; asserted Parliament's supremacy regarding amendment of the Constitution; it authorised the Supreme Court to transfer certain cases from one High Court to another High Court and redefined the writ-jurisdiction of the High Court; it provided administrative tribunals for speedy justice, empowered the central government to send armed or police force to the states to deal with grave law and order situations; authorised the President to made proclamation of emergency either in respect of any part of the country or to the whole of India; made it obligatory for the President to act on the advice of the Council of Ministers.
• The Forty-fourth Amendment (1978) sought to remove some of the irritants of the 42nd Amendment. It made changes in the emergency provisions to ensure that these powers were not misused by the executive in future. It restored to the courts the power to decide whether an office was an office of profit1 or not (a power of which they were deprived by the 42nd Amendment); it provided
constitutional protection to publication of proceedings of parliament and state legislatures; authorised the President to refer back a matter to the Council of ministers for reconsideration, but made it binding on him to act on the advice tendered after such reconsideration; it removed the right to property from the list of fundamental rights and made it an ordinary right; it restored to the courts the power to decide disputes regarding election of Prime Minister and speaker, etc.
• The Fifty-second Amendment was carried out in 1985 to curb political defections. It specified the disqualifications in the Tenth Schedule which could lead to loss of membership by members of Parliament or state legislature.
• The Sixty-first Amendment, carried out in 1989, reduced the voting age from 21 years to 18 years for the Lok Sabha as well as for Assembly elections.
• The Sixty-fifth Amendment (1990) accorded statutory status to the Commission for Scheduled Castes and Scheduled Tribes and designated it as the National Commission for the Scheduled Castes and Scheduled Tribes.
• The Sixty-ninth Amendment (1991) inserted in the Constitution Articles 239-AA and 239-AB comprising special provisions with respect to Delhi, to be called National Capital Territory of Delhi, providing for a Legislative Assembly and Council of Ministers.
• The Seventy-third Amendment Act'(1992), which got Presidential assent on April 25, 1993 after ratification of the required number of states, provided constitutional guarantee for formation of Panchayats, inserted Part IX and the Eleventh Schedule in the Constitution.
• Seventy-fourth Amendment Act (1992) which got the President', assent of June 6, 1993 after ratification of the required number of states inserts Part IX A containing Articles 243P to 243ZG, and the Twelth Schedule. It provided for three types of Municipalities with devolution of powers and responsibilities by the state legislatures regarding levy of taxes and duties to be performed by them.
• Seventy-fifth (1994) Art 323: Provisions for the establishment of special Administrative Tribunals for the speedy disposal of disputes between House holders and tenants.
• Seventy-sixth (1994) Schedule IX: The laws relating in reservation enacted by Tamil Nadu Assembly included in the Ninth schedule.
• Seventy-seventh (1995) Art 16(4A): Provisions made for the reservation of SC/ST in the promotions in public services.
• Seventy-eighth (1995) Schedule IX: Some land reform acts of different State included in the Ninth Schedule.
• Seventy-ninth (1999) Article 334: The reservation of seats for the Scheduled Castes and the Scheduled Tribes as well as for the Anglo Indians in the House of the People and in the Legislature Assemblies of the State extended for another ten years.
• Eightieth (2000) Article 268, 269, 270, 272: Based on the recommendations of the Tenth Finance Commission, alternative scheme for sharing taxes between the Union and the States.
• Eighty-first (2000) Article 16: The Unfilled vacancies of a year which are reserved for the Scheduled Castes and the Scheduled Tribes for being filled up in that year in accordance with any provision for reservation made under Article 16 of the constitution shall be considered a special class of vacancies to be filled up in any succeeding year or years.
• Eighty-second (2000) Article 335: The amendment provides that nothing in Article 335 shall prevent the State from making any provision in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standard of evaluation for reservation in matters of promotion to any class or classes of services or posts in connection with affairs of the Union or of a State.
• Eighty-third (2000) Article 243M: It provides that no reservation in Panchayats need be made in favour of the Scheduled Castes in Arunachal Pradesh wholly inhabited by tribal population.
• Eighty-fourth (2000) Article 1, 2 and First and Fourth Schedule: Creation of the new States of Chhatishgarh, Uttaranchal and Jharkhand.
• Eighty-fifth (2002)Article 16(4A): Restoration of reservation in promotions in services to the members of the Scheduled Castes and Scheduled Tribes.
• Eighty-sixth (2002) Article 21(A), 45 &51 A: Right to Education has been made the fundamental right and a fundamental duty has been fixed to the parent and guardian to province opportunities for education to his child on ward between the age of 6 and 14.
• Eighty-seventh (2003) Article 81, 82, 170, 332: Provisions were made so that each state shall be divided into territorial Constitutions in such a manner that the ratio between the population as per 2001. Census, of each constitutions and number of seats allotted to it is, so far as practicable, the same throughout the state.
• Eighty-eighth (2003) Article 268A, 270, Seventh Schedule Taxes on services was included in the Union List.
• Eighty-ninth (2003) Article 338: Provisions for creation to separate commission for schedule castes.
• Ninty (2003) Article 332: Provisions under which the Scheduled Tribes and non-Scheduled Tribes in the Bodoland Territorial Area:. District, so notified, and existing prior to the Constitution of the; Bodoland Territorial Areas District shall be maintained
• Ninty-first (2003) Article 75, 164, 361B, Tenth Schedule: Provisions were made regarding the strength of Council of Ministers in Union as well state to 15% of the total member of Lok Sabha or concerned Vidhan Sabha respectively.
• Ninty-second (2003) Eighth Schedule: Bodo, Dogri, Maithili and Santhali were added in the Eigth Schedule of Constitution
• Ninty-third (2005): The Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act.
*****
CHAPTER- 31
Anti-Defection Law
The anti defection law is applicable only to the current (present) members of
Ø Lok Sabha
Ø Rajya Sabha
Ø State Legislative Assemblies
Ø State Legislative Councils
· Before the year 1985 there is no provision for disqualifying a member if he joins other political party.
· This is considered to be an insult to the democracy where the people have a voted for a person by looking at the party.
· This was seriously discussed hence the 10th schedule of the Indian Constitution.
· Defections mean jumping from one political party to the other after getting elected.
· The anti-defection law is meant for disqualification of members of Parliament or State Legislatures on the grounds of defections from one political party to the other.
· These provisions are added to the Constitution of India through the 52nd amendment.
· A new schedule in the form of 10th schedule has been added to the Constitution.
· The 10th schedule was added to the constitution in the year 1985 through 52nd amendment.
· In Parliament and State Legislatures there are three categories of members present.
· Political Party members
· Independent members (Most of the times these members are present)
· Nominated members
· All categories of members can be disqualified under the grounds of defections.
DISQUALIFICATION OF MEMBERS OF POLITICAL PARTIES:
· A political party member is a person who contests in the election on the name of a political party and gets elected.
· A member of a political party can be disqualified
· If that member after getting elected voluntarily resigns to the political party on whose ticket he/she got elected to the house
OR
· if the member votes against to the whip (Direction) issued by the concerned political party OR
· If the member abstains against the direction issued by the concerned political party without permission from the party.
EXCEPTIONS:
· A member going out of a party through Split is not disqualified on the grounds of defections.
WHAT IS SPLIT?
· If minimum 1/3rd members of a political party gets separated from the parent party and forms a new party it is called Split.
· The speaker or the chairman if satisfied recognizes the split group as a new party.
· The Split group cannot join any political party. If so, the group is disqualified.
· The Split by 1/3rd members of a party have been deleted through the 91st amendment Act of 2003. This means the members can no more take shelter under the split.
WHAT IS MERGER?
· If a 2/3rd of a political party forms a separate group and joining another political party is called merger.
· If a member goes out as a result of merger, the member is not disqualified.
· If a member after being elected as the Presiding officer of the house, voluntarily gives up the membership of the party and rejoins it after he ceases to hold that office.
· A member may be suspended by the political party for violating the discipline of the party. A suspended member from a political party is not disqualified from the membership of the house.
INDEPENDENT MEMBERS:
WHO IS AN INDEPENDENT MEMBER?
· An independent member is an elected member of the house who does not belong to any political party. She/he got elected because of their personal image among the people of the respective constituency.
· If an independent member joins any political party then the member is disqualified from the membership of the house.
· An independent member can continue as an associated member of a political party.
NOMINATED MEMBERS:
· These are the members who are nominated by the President for Parliament and by the Governors for the State Legislatures.
DO YOU REMEMBER?
· The President nominates 2 members who belong to the Anglo-Indian community to the Lok Sabha.
· The President nominates 12 members with special knowledge or practicle experience to the Rajya Sabha.
· The Governor nominates 1 member of who belongs to Anglo-Indian to the state Assembly.
· The Governor nominates 1/6th of the total members to the State Legislative Council.
· A nominated member is disqualified for being a member of a house if the member joins any political party after the expiry of 6 months from the date on which he takes his seat in the house.
EXCEPTION FOR A NOMINATED MEMBER:
· If a nominated member joins a political party within 6 months of his nomination to the house is not disqualified.
WHO IS THE DECIDING AUTHORITY REGARDING THE DISQUALIFICATION OF A MEMBER:
· The deciding authority is the Presiding officer (Speaker/chairman).
· Initially the decision of the chair was not subjected to the judicial review.
· In the year 1993, in Kihoto Hollohan V. Zachilhu case the Supreme Court declared that this provision is unconstitutional on the ground that it seeks to take away the jurisdiction of Supreme Court and High Courts.
· Hence since 1993, the decision chair is subject to the judicial review.
· It means the disqualification of a member can be challenged in a court of law on the grounds of malafides.
Miscellaneous:
· The Presiding officer can take up a defection case only when he/she receives a complaint from a member of the house.
· The speaker need not take the decision immediately.
· Before taking the final decision the presiding officer must give a chance to the member against whom the complaint has been made.
· In the year 2007 in Uttar Pradesh 13 MLA’s (BSP) were disqualified under Anti-defection law.
· In the year 2010 then Karnataka Assembly Speaker K G Bopaiah 11 BJP and 5 independent MLAs. Then the MLAs moved the Karnataka High Court and the court upheld the decision of the Speaker. Later the disqualified MLAs moved the Supreme Court and the Apex Court ordered for the reinstating of the MLAs and thus avoided the possible by elections in Karnataka.
· In the year 2013 in Andhra Pradesh Assembly 15 MLAs have been disqualified for defying their respective party whips.
Chapter-32 NITI Aayog
§ Planning has been in Indian psyche as our leaders came under influence of the socialist clime of erstwhile USSR. Planning commission served as the planning vehicle for close to six decades with a focus on control and command approach.
§ Planning Commission was replaced by a new institution – NITI AAYYOG on January 1, 2015 with emphasis on ‘Bottom –Up’ approach to envisage the vision of Maximum Governance, Minimum Government, echoing the spirit of ‘Cooperative Federalism’.
Administrative Skeletal
§ Chairperson: Prime Minister
§ Vice-Chairperson: To be appointed by Prime-Minister
§ Governing Council: Chief Ministers of all states and Lt. Governors of Union Territories.
§ Regional Council: To address specific regional issues, Comprising Chief Ministers and Lt. Governors Chaired by Prime Minister or his nominee.
§ Adhoc Membership: 2 member in ex-officio capacity from leading Research institutions on rotational basis.
§ Ex-Officio membership: Maximum four from Union council of ministers to be nominated by Prime minister.
§ Chief Executive Officer: Appointed by Prime-minister for a fixed tenure, in rank of Secretary to Government of India.
§ Special Invitees: Experts, Specialists with domain knowledge nominated by Prime-minister.
NITI Aayog Hubs
1. Team India Hub acts as interface between States and Centre.
2. Knowledge and Innovation Hub builds the think-tank acumen of NITI Aayog.
§ The Aayog planned to come out with three documents — 3-year action agenda, 7-year medium- term strategy paper and 15-year vision document.
Importance
§ The 65 year-old Planning Commission had become a redundant organization. It was relevant in a command economy structure, but not any longer.
§ India is a diversified country and its states are in various phases of economic development along with their own strengths and weaknesses.
§ In this context, a ‘one size fits all’ approach to economic planning is obsolete. It cannot make India competitive in today’s global economy.
Objectives
§ To foster cooperative federalism through structured support initiatives and mechanisms with the States on a continuous basis, recognizing that strong States make a strong nation.
§ To develop mechanisms to formulate credible plans at the village level and aggregate these progressively at higher levels of government.
§ To ensure, on areas that are specifically referred to it, that the interests of national security are incorporated in economic strategy and policy.
§ To pay special attention to the sections of our society that may be at risk of not benefitting adequately from economic progress.
§ To provide advice and encourage partnerships between key stakeholders and national and international like-minded Think Tanks, as well as educational and policy research institutions.
§ To create a knowledge, innovation and entrepreneurial support system through a collaborative community of national and international experts, practitioners and other partners.
§ To offer a platform for resolution of inter-sectoral and inter-departmental issues in order to accelerate the implementation of the development agenda.
§ To maintain a state-of-the-art Resource Centre, be a repository of research on good governance and best practices in sustainable and equitable development as well as help their dissemination to stake- holders.
Challenges
§ To prove its mettle in policy formulation, the NITI Aayog needs to prioritize from the long list of 13 objectives with clear understanding of the difference in policy, planning and strategy.
§ To build the trust, faith and confidence more than the planning commission, NITI Aayog needs freedom of various kinds with budgetary provisions not in terms of plan and non-plan expenditures but revenue and capital expenditure as the higher rate of increase in capital expenditure can remove infrastructural deficits at all levels of operation in the economy.
NITI Aayog
Planning Commission
It serves as an advisory Think Tank.
It served as extra-constitutional body.
It draws membership from a wider expertise.
It had limited expertise.
It serves in spirit of Cooperative Federalism as states are equal partners.
States participated as spectators in annual plan meetings.
Secretaries to be known as CEO appointed by Prime- Minister.
Secretaries were appointed through usual process.
It focuses upon ‘Bottom-Up’ approach of Planning.
It followed a ‘Top-Down’ approach.
It does not possess mandate to impose policies.
Imposed policies on states and tied allocation of funds with projects it approved.
It does not have powers to allocate funds, which are vested in Finance Minister.
It had powers to allocate funds to ministries and state governments.
Way Forward
§ Decentralization of planning but within a five-year plan framework.
§ Bureaucratic inertia need to be shaken, specializing it and fixing the accountability on basis of performance.
§ NITI Aayog could emerge as an agent of change over time and contribute to the government’s agenda of improving governance and implementing innovative measures for better delivery of public services.
§ NITI Aayog continues to be representative of efficient, transparent, innovative and accountable governance system in country with distinguished work ethics.
Chapter-33
National Human Rights Commission
Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.
Protection of human rights have been a core concern of United Nations since its establishment. The fear of further violation of human rights worldover made United Nations General Assembly to adopt the Paris Principles on Human Rights. Adoption of Paris Principles led to the constitution of national human rights institutions in almost every country.
The Paris Principles is a set of international standards which frame and guide the work of National Human Rights Institutions (NHRIs) .
In India, National Human Rights Commission which is called as the “watchdog of human rights” takes the responsibility of protecting the rights relating to life, liberty, equality and dignity of the individual. NHRC has marked its 25th year anniversary this year. It is a statutory body constituted under Protection of Human Rights (PHR) Act 1993.It has been stuck in controversies since its formation.
To strengthen National Human Rights Commission, the government seeks to introduce amendments to the Act in Parliament’s 2018 Winter Session.
Union Cabinet has already approved the Protection of Human Rights (Amendments) Bill, 2018.
§ The Bill provides that only a person who has been Chief Justice of India, or a Judge of the Supreme Court will be the chairperson of the NHRC.
§ Bill proposes to include one member of the National Commission for Protection of Child Rights within its fold as a deemed member as well as a woman member.
§ It proposes to enlarge the scope of eligibility and selection of the Chairperson of the NHRC as well as of State Human Rights Commissions.
§ It also proposes to incorporate proper mechanism in the functioning of NHRC.
National Human Rights Commission (NHRC)
§ It was established in 1993 under a legislation enacted by the Parliament, namely, the Protection of Human Rights Act,1993.
§ It is a statutory body.
§ In 1993, the UN General Assembly adopted the Paris Principles on Human Rights. This led to the constitution of national human rights institutions in almost every country.
§ The commission is a multi-member body consisting of a chairman and four members.
§ The commission’s headquarters is at Delhi and it can also establish offices at other places in India.
Role of NHRC
§ NHRC holds a record of disposal of more than 17 lakh cases, payment of more than one billion rupees to the victims of human rights violations by various state agencies and more than 750 on- spot inquiries .
§ It takes suo moto action or on a petition presented to it or on an order of a court.
§ NHRC takes responsibility to monitor human rights safeguards.
§ It makes recommendations to the Government in making policies.
§ It also extends cooperation to NGOs working for the protection of human rights.
§ It reviews the safeguards provided by the Constitution or any law for the time being in force for the protection of human rights and recommends measures for their effective implementation.
§ NHRC studies treaties and other international instruments on human rights and make recommendations for their effective implementation.
§ It spreads human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means.
§ It undertakes research in the field of human rights.
Criticism
§ The selection committee tasked with appointing the Chairperson and the members to the Commission is dominated by the ruling party. Political interference in its working is a major drawback.
§ Supreme Court called the NHRC a “toothless tiger”, as it does not have powers to penalise the offenders. There is a conflict of interest, as the Police officials on deputation, investigating for the NHRC remain attached to their home cadre. The NHRC urgently requires officers of its own to carry out independent investigations, and the government should provide it resources for the same.
§ Functions of the commission are mainly recommendatory in nature. And the recommendations are not binding on the concerned authorities.
§ The working of NHRC officials is not supervised. Officials do not owe financial accountability to the Comptroller and Auditor General, and have often been accused of human rights violations themselves.
§ Recruitment procedure is obscure and there is lack of transparent recruitment mechanism. The criteria to assess candidates is also not specified.
§ The investment mechanism by the Commission is not clearly defined.
§ Commission has a limited role with respect to the violation of human rights by the members of armed forces.
Way Forward
§ There is thus a need to diversify the selection committee. Efficiency of working of NHRC can be improved if the recruitment procedure becomes transparent.
§ Specific time-frames should be fixed for the thorough and expeditious completion of investigations.
§ Human Rights education should be promoted in India to make the population aware about rights.
§ The dominance of judiciary’s presence in the Commission needs to be balanced out by the inclusion of civil society members and academicians with proven track record in the field of human rights. The diversification can bring with it the grass roots level experience, widespread community outreach and the expertise of these organisations or individuals.
§ Special Cells should be constituted under the concerned District Magistrates to follow the progress of the investigation of cases not entrusted to the CBI, these should be monitored by the Additional Director-General.
Chapter-34
Central Vigilance Commission
Central Vigilance Commission is the apex vigilance institution, free of control from any executive authority, monitoring all vigilance activity under the Central Government and advising various authorities in Central Government organizations in planning, executing, reviewing and reforming their vigilance work.
Vigilance means to ensure clean and prompt administrative action towards achieving efficiency and effectiveness of the employees in particular and the organization in general, as lack of Vigilance leans to waste, losses and economic decline.
The CVC was set up by the Government in February, 1964 on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam. In 2003, the Parliament enacted CVC Act conferring statutory status on the CVC.
The CVC is not controlled by any Ministry/Department. It is an independent body which is only responsible to the Parliament.
BACK GROUND:
· The purpose is to advise advice and guide the central government agencies in the field of vigilance.
· The CVC enjoys the statutory status with effect from August 25, 1998.
STRENGTH:
· The Commission shall consist of a Central Vigilance Commissioner and not more than two vigilance commissioners.
FUNCTIONS:
§ The CVC receives complaints on corruption or misuse of office and to recommend appropriate action. Following institutions, bodies, or a person can approach to CVC:
o Central government
o Lokpal
o Whistle blowers
§ A whistleblower is a person, who could be an employee of a company, or a government agency, or an outsider (like media, higher government officials, or police) disclosing information to the public or some higher authority about any wrongdoing, which could be in the form of fraud, corruption, etc.
§ It is not an investigating agency. The CVC either gets the investigation done through the CBI or through chief vigilance officers (CVO) in government offices.
§ It is empowered to inquire into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants.
§ Its annual report gives the details of the work done by the commission and points to systemic failures which lead to corruption in government departments.
o Improvements and preventive measures are also suggested in report.
History
§ The Special Police Establishment (SPE) which was set up in 1941 by the Government of India.
o The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Department of India during World War II.
o Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt.
o The Delhi Special Police Establishment Act was therefore brought into force in 1946.
§ After promulgation of the Act, superintendence of SPE was transferred to the Home Department and its functions were enlarged to cover all departments of the Government of India.
o The jurisdiction of SPE was extended to all the Union territories and the Act provided for its extension to States with the consent of the State Government.
§ By 1963, the SPE was authorised to investigate offences under 91 different sections of Indian Penal Code (IPC) and 16 other Central Acts besides offences under the Prevention of Corruption Act 1947.
§ A growing need was felt for a Central Police Agency at disposal of the Central Government which could investigate not only cases of bribery and corruption, but also:
o violation of Central fiscal laws,
o major frauds relating to Government of India departments,
o public joint stock companies,
o passport frauds,
o crimes on the high seas,
o crimes on the Airlines,
o and serious crimes committed by organised gangs and professional criminals.
§ On the recommendations of the Santhanam Committee on Prevention of Corruption, Central Bureau of Investigation (CBI) was established by a resolution of the Ministry of Home Affairs on April 1, 1963.
o Later, it was transferred to the Ministry of Personnel and now it enjoys the status of an attached office.
§ In 1964, the Central Vigilance Commission (CVC) was set up by the Government on the recommendations of Santhanam Committee, to advise and guide Central Government agencies in the field of vigilance.
§ The Supreme Court in the judgement of Vineet Narain & Others vs. Union of India (1997), gave directions regarding the superior role of CVC.
o In this case the role of the Central Bureau of Investigation was criticised and the court directed that CVC should be given a supervisory role over CBI.
§ The Government promulgated an Ordinance in 1998, conferring statutory status to the CVC and the powers to exercise superintendence over functioning of the Delhi Special Police Establishment (CBI), and also to review the progress of the investigations pertaining to:
o alleged offences under the Prevention of Corruption Act, 1988 conducted by them.
§ The Commission was given statutory status by the enactment of “The Central Vigilance Commission Act, 2003”.
o After enactment of CVC Act, 2003, the Commission became a multi-member body consisting of a Central Vigilance Commissioner (Chairperson) and not more than two Vigilance Commissioners (Members), to be appointed by the President.
§ The Supreme Court in a Writ Petition filed after the murder of Shri Satyendra Dubey in 2003, a whistle-blower, directed that a machinery be put in place for acting on complaints from whistle- blowers till a law is enacted.
o In pursuance of that direction, the Government of India notified the Public Interest Disclosure and Protection of Informers Resolution (PIDPI), 2004:
· This Resolution is popularly known as “Whistle Blowers” Resolution and it designated the Central Vigilance Commission as the agency to receive and act on complaints or disclosure on any allegation of corruption or misuse of office from whistle blowers.
· The Commission has been entrusted with the responsibility of keeping the identity of the complainant secret while lodging a complaint under PIDPI Resolution, in order to provide protection to whistle blowers from victimisation.
o The Public Interest Disclosure and Protection to Person Making the Disclosures (PIDPPMD) Bill 2010 renamed as “The Whistle Blowers’ Protection Bill, 2011” was enacted by the Central Government in Parliament as “The Whistle Blowers’ Protection Act, 2014”.
§ Through subsequent ordinances and legislations the Government has added to the functions and powers of the Commission.
§ In 2013, the Parliament enacted the Lokpal and Lokayuktas Act, 2013.
o This act has amended CVC Act, 2003 whereby the Commission has been empowered to conduct preliminary inquiry and further investigation into complaints referred by the Lokpal.
§ On the issue of overlap of jurisdiction between the CVC Act and The Lokpal and Lokayuktas Act, the Commission has communicated its suggestions to the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice during its examination of the Lokpal and Lokayuktas and Other Related Law (Amendment) Bill, 2014.
Central Bureau of Investigation (CBI)
§ CBI works under the overall supervision of CVC in matters related to the Prevention of Corruption Act, 1988.
o The important role of CBI is prevention of corruption and maintaining integrity in administration.
§ The CVC act provides for a security of two year tenure in office for CBI Director.
§ The CVC heads the Committee for the selection of the Director of CBI and other officers of the rank of SP and above in the CBI (DSPE-An investigation wing of CBI).
CVC’s Jurisdiction CVC Act 2003
§ Members of All India Service serving in connection with the affairs of the Union and Group A
officers of the Central Government
§ Officers of the rank of Scale V and above in the Public Sector Banks
§ Officers in Grade D and above in Reserve Bank of India, NABARD and SIDBI
§ Chief Executives and Executives on the Board and other officers of E-8 and above in Schedule ‘A’ and ‘B’ Public Sector Undertakings
§ Chief Executives and Executives on the Board and other officers of E-7 and above in Schedule ‘C’ and ‘D’ Public Sector Undertakings
§ Managers and above in General Insurance Companies
§ Senior Divisional Managers and above in Life Insurance Corporations
§ Officers drawing salary of Rs.8700/- p.m. and above on Central Government D.A. (Dearness Allowance) pattern, as on the date of the notification and as may be revised from time to time in Societies and other Local Authorities.
The Lokpal and Lokayuktas Act, 2013
§ The Act has amended some provisions of CVC Act, 2003 whereby the Commission has been empowered to conduct preliminary inquiry into complaints referred by Lokpal in respect of officers and officials of Group 'B', 'C' & 'D', besides:
o Group 'A' officers, for which a Directorate of Inquiry for making preliminary inquiry is to be set up in the Commission.
§ The preliminary inquiry reports in such matters referred by Lokpal in respect of Group A and B officers are required to be sent to the Lokpal by the Commission.
§ The Commission is also mandated to cause further investigation (after preliminary enquiry) into such Lokpal references in respect of Group ‘C’ & ‘D’ officials and decide on further course of action against them.
The Whistleblowers Protection Act, 2014
§ The Whistleblowers Protection Act, 2014 empowers the Commission as the competent authority:
o to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure,
o and to provide adequate safeguards against victimisation of the person making such complaint and for matters connected therewith and incidental thereto.
Limitations of CVC
§ CVC is often considered a powerless agency as it is treated as an advisory body only with no power to register criminal case against government officials or direct CBI to initiate inquiries against any officer of the level of Joint Secretary and above.
§ Although CVC is “relatively independent” in its functioning, it neither has the resources nor the power to take action on complaints of corruption.
Conclusion
In the recent past, India has emerged as a progressive and vibrant economy. With the rapid growth in all sectors of the economy, huge investments were made in country’s infrastructure; construction, retail and many other sectors in the government. Rapid growth in economy throws up CVCs’ challenges in the fight against the menace of corruption.
Chapter-35
Central Bureau of Investigation
What is CBI?
§ Central Bureau of Investigation (CBI) is the premier investigating police agency in India.
§ It functions under the superintendence of the Dept. of Personnel, Ministry of Personnel, Pension & Public Grievances, Government of India - which falls under the prime minister’s office.
§ However for investigations of offences under the Prevention of Corruption Act, its superintendence vests with the Central Vigilance Commission.
§ It is also the nodal police agency in India which coordinates investigation on behalf of Interpol Member countries.
§ Its conviction rate is as high as 65 to 70% and it is comparable to the best investigation agencies in the world.
Historical Background
§ During the period of World War II, a Special Police Establishment (SPE) was constituted in 1941 in the Department of War of the British India to enquire into allegations of bribery and corruption in the war related procurements.
§ Later on it was formalized as an agency of the Government of India to investigate into allegations of corruption in various wings of the Government of India by enacting the Delhi Special Police Establishment (DSPE) Act, 1946.
§ CBI derives power to investigate from the Delhi Special Police Establishment Act, 1946.
§ In 1963, the CBI was established by the Government of India with a view to investigate serious crimes related to defence of India, corruption in high places, serious fraud, cheating and embezzlement and social crime, particularly of hoarding, black-marketing and profiteering in essential commodities, having all-India and inter-state ramifications.
§ With the passage of time, CBI started investigations in conventional crimes like assassinations, kidnappings, hijackings, crimes committed by extremists, etc.
Cases Handled by the CBI
§ Anti-Corruption Crimes - for investigation of cases under the Prevention of Corruption Act against Public officials and the employees of Central Government, Public Sector Undertakings, Corporations or Bodies owned or controlled by the Government of India.
§ Economic Crimes - for investigation of major financial scams and serious economic frauds, including crimes relating to Fake Indian Currency Notes, Bank Frauds and Cyber Crime, bank frauds, Import Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other contraband items etc.
§ Special Crimes - for investigation of serious and organized crime under the Indian Penal Code and other laws on the requests of State Governments or on the orders of the Supreme Court and High Courts - such as cases of terrorism, bomb blasts, kidnapping for ransom and crimes committed by the mafia/the underworld.
§ Suo Moto Cases - CBI can suo-moto take up investigation of offences only in the Union Territories.
o The Central Government can authorize CBI to investigate a crime in a State but only with the consent of the concerned State Government.
o The Supreme Court and High Courts, however, can order CBI to investigate a crime anywhere in the country without the consent of the State.
Director of CBI
§ Director, CBI as Inspector General of Police, Delhi Special Police Establishment, is responsible for the administration of the organisation.
§ Till 2014, the CBI Director was appointed on the basis of the DSPE Act, 1946.
§ In 2003, DSPE Act was revised on Supreme Court’s recommendation in the Vineet Narain case. A committee that had members from Central Vigilance Commission, Secretaries from Home Ministry, Ministry of Personnel and Public Grievances would send recommendations to Central Government for the appointment of CBI Director.
§ In 2014, the Lokpal Act provided a committee for appointment of CBI Director:
o Headed by Prime Minister
o Other members - Leader of Opposition/ Leader of the single largest opposition party, Chief Justice of India/ a Supreme Court Judge.
o Home Ministry sends a list of eligible candidates to DoPT. Then, the DoPT prepares the final list on basis of seniority, integrity, and experience in the investigation of anti-corruption cases, and sends it to the committee.
§ Director of CBI has been provided security of two year tenure, by the CVC Act, 2003.
Challenges
§ The Supreme Court of India has criticised the CBI by calling it a "caged parrot speaking in its master's voice", due to excessive political interference in its functioning.
§ It has often been used by the government of the day to cover up wrongdoing, keep coalition allies in line and political opponents at bay.
§ It has been accused of enormous delays in concluding investigations - For example, the inertia in its probe against the high dignitaries in Jain hawala diaries case [of the 1990s].
§ Loss of Credibility: Improving the image of the agency is one of the biggest challenges till now as the agency has been criticised for its mismanagement of several cases involving prominent politicians and mishandling of several sensitive cases like Bofors scandal; Hawala scandal, Sant Singh Chatwal case, Bhopal gas tragedy, 2008 Noida double murder case(Aarushi Talwar).
§ Lack of Accountability: CBI is exempted from the provisions of the Right to Information Act, thus, lacking public accountability.
§ Acute shortage of personnel: A major cause of the shortfall is the government's sheer mismanagement of CBI's workforce, through a system of inefficient, and inexplicably biased, recruitment policies - used to bring in favoured officers, possibly to the detriment of the organisation.
§ Limited Powers: The powers and jurisdiction of members of the CBI for investigation are subject to the consent of the State Govt., thus limiting the extent of investigation by CBI.
§ Restricted Access: Prior approval of Central Government to conduct inquiry or investigation on the employees of the Central Government, of the level of Joint Secretary and above is a big obstacle in combating corruption at higher levels of bureaucracy.
Chapter-36 Lokpal and Lokayukta
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Lokpal and Lokayukta
§ The Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the Union and Lokayukta for States.
§ These institutions are statutory bodies without any constitutional status.
§ They perform the function of an "ombudsman” and inquire into allegations of corruption against certain public functionaries and for related matters.
Why do we need such institutions?
§ Maladministration slowly erodes the foundation of a nation and hinders administration from completing its task. Corruption is the root cause of this problem.
§ Most of the anti-corruption agencies are hardly independent. Even Supreme Court has been termed CBI as a “caged parrot” and “its master’s voice”.
§ Many of these agencies are advisory bodies without any effective powers and their advice is rarely followed.
§ There is also the problem of internal transparency and accountability. Moreover, there is not any separate and effective mechanism to put checks on these agencies.
§ In this context, an independent institution of Lokpal has been a landmark move in the history of Indian polity which offered a solution to the never-ending menace of corruption.
Background
§ In 1809, the institution of ombudsman was inaugurated officially in Sweden.
§ In the 20th century, Ombudsman as an institution developed and grew most significantly after the Second World War.
§ New Zealand and Norway adopted this system in the year 1962 and it proved to be of great significance in spreading the concept of the ombudsman.
§ In 1967, on the recommendations of the Whyatt Report of 1961, Great Britain adopted the institution of the ombudsman and became the first large nation in the democratic world to have such a system.
§ In 1966, Guyana became the first developing nation to adopt the concept of the ombudsman. Subsequently, it was further adopted by Mauritius, Singapore, Malaysia, and India as well.
§ In India, the concept of constitutional ombudsman was first proposed by the then law minister Ashok Kumar Sen in parliament in the early 1960s.
§ The term Lokpal and Lokayukta were coined by Dr. L. M. Singhvi.
§ In 1966, the First Administrative Reforms Commission recommended the setting up of two independent authorities- at the central and state level, to look into complaints against public functionaries, including MPs.
§ In 1968, Lokpal bill was passed in Lok Sabha but lapsed with the dissolution of Lok Sabha and since then it has lapsed in the Lok Sabha many times.
§ Till 2011 eight attempts were made to pass the Bill, but all met with failure.
§ In 2002, the Commission to Review the Working of the Constitution headed by M.N. Venkatachaliah recommended the appointment of the Lokpal and Lokayuktas; also recommended that the PM be kept out of the ambit of the authority.
§ In 2005, the Second Administrative Reforms Commission chaired by Veerappa Moily recommended that the office of Lokpal should be established without delay.
§ In 2011, the government formed a Group of Ministers, chaired by Pranab Mukherjee to suggest measures to tackle corruption and examine the proposal of a Lokpal Bill.
§ "India Against Corruption movement" led by Anna Hazare put pressure on the United Progressive Alliance (UPA) government at the Centre and resulted in the passing of the Lokpal and Lokayuktas Bill, 2013, in both the Houses of Parliament.
§ It received assent from President on 1 January 2014 and came into force on 16 January 2014.
The Lokpal and Lokayuktas (Amendment) Bill, 2016
§ This Bill was passed by Parliament in July 2016 and amended the Lokpal and Lokayukta Act, 2013.
§ It enables the leader of the single largest opposition party in the Lok Sabha to be a member of the selection committee in the absence of a recognized Leader of Opposition.
§ It also amended section 44 of the 2013 Act that deals with the provision of furnishing of details of assets and liabilities of public servants within 30 days of joining the government service.
§ The Bill replaces the time limit of 30 days, now the public servants will make a declaration of their assets and liabilities in the form and manner as prescribed by the government.
§ It also gives an extension of the time given to trustees and board members to declare their assets and those of their spouses in case of these are receiving government funds of more than Rs. 1 crore or foreign funding of more than Rs. 10 lakh.
Structure of Lokpal
§ Lokpal is a multi-member body, that consists of one chairperson and a maximum of 8 members.
§ Chairperson of the Lokpal should be either the former Chief Justice of India or the former Judge of Supreme Court or an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti-corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
§ Out of the maximum eight members, half will be judicial members and minimum 50% of the Members will be from SC/ ST/ OBC/ Minorities and women.
§ The judicial member of the Lokpal either a former Judge of the Supreme Court or a former Chief Justice of a High Court.
§ The non-judicial member should be an eminent person with impeccable integrity and outstanding ability, having special knowledge and expertise of minimum 25 years in the matters relating to anti- corruption policy, public administration, vigilance, finance including insurance and banking, law and management.
§ The term of office for Lokpal Chairman and Members is 5 years or till the age of 70 years.
§ The members are appointed by the president on the recommendation of a Selection Committee.
§ The selection committee is composed of the Prime Minister who is the Chairperson; Speaker of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge nominated by him/her and One eminent jurist.
§ For selecting the chairperson and the members, the selection committee constitutes a search panel of at least eight persons.
Lokpal Search Committee
§ Under the Lokpal Act of 2013, the DoPT is supposed to put together a list of candidates interested to be the chairperson or members of the Lokpal.
§ This list would then go to the proposed eight-member search committee, which would shortlist names and place them before the selection panel headed by the Prime Minister.
§ The selection panel may or may not pick names suggested by the search committee.
§ In September 2018, the government had constituted a search committee headed by former Supreme Court judge Justice Ranjana Prakash Desai.
§ The 2013 Act also provides that all states should set up the office of the Lokayukta within one year from the commencement of the Act.
Lokpal Jurisdiction and Powers
§ Jurisdiction of Lokpal includes Prime Minister, Ministers, members of Parliament, Groups A, B, C and D officers and officials of Central Government.
§ Jurisdiction of the Lokpal included the Prime Minister except on allegations of corruption relating to international relations, security, the public order, atomic energy and space.
§ The Lokpal does not have jurisdiction over Ministers and MPs in the matter of anything said in Parliament or a vote given there.
§ Its jurisdiction also includes any person who is or has been in charge (director/ manager/ secretary) of anybody/ society set up by central act or any other body financed/ controlled by central government and any other person involved in act of abetting, bribe giving or bribe taking.
§ The Lokpal Act mandates that all public officials should furnish the assets and liabilities of themselves as well as their respective dependents.
§ It has the powers to superintendence over, and to give direction to CBI.
o If Lokpal has referred a case to CBI, the investigating officer in such case cannot be transferred without the approval of Lokpal.
§ The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
§ Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured by means of corruption in special circumstances.
§ Lokpal has the power to recommend transfer or suspension of public servant connected with allegation of corruption.
§ Lokpal has the power to give directions to prevent the destruction of records during the preliminary inquiry.
Limitations
§ The institution of lokpal has tried to bring a much needed change in the battle against corruption in the administrative structure of India but at the same time, there are loopholes and lacunae which need to be corrected.
§ Five years have passed since the Lokpal and Lokayuktas Act 2013 was passed by parliament, but not a single Lokpal has been appointed till date indicating the lack of political will.
o The Lokpal act also called upon states to appoint a Lokayukta within a year of its coming to force. But only 16 states have established the Lokayukta.
§ Lokpal is not free from political influence as the appointing committee itself consist of members from political parties.
§ The appointment of Lokpal can be manipulated in a way as there is no criterion to decide who is an ‘eminent jurist’ or ‘a person of integrity.’
§ The 2013 act did not provide concrete immunity to the whistle blowers. The provision for initiation of inquiry against the complainant if the accused is found innocent will only discourage people from complaining.
§ The biggest lacuna is the exclusion of judiciary from the ambit of the Lokpal.
§ The Lokpal is not given any constitutional backing and there is no adequate provision for appeal against the Lokpal.
§ The specific details in relation to the appointment of Lokayukta have been left completely on the States.
§ To some extent, the need for functional independence of the CBI has been catered to by a change brought forth in the selection process of its Director, by this Act.
§ The complaint against corruption cannot be registered after a period of seven years from the date on which the offence mentioned in such complaint is alleged to have been committed.
Suggestions
§ In order to tackle the problem of corruption, the institution of the ombudsman should be strengthened both in terms of functional autonomy and availability of manpower.
§ Greater transparency, more right to information and empowerment of citizens and citizen groups is required along with a good leadership that is willing to subject itself to public scrutiny.
§ Appointment of Lokpal in itself is not enough. The government should address the issues based on which people are demanding a Lokpal. Merely adding to the strength of investigative agencies will increase the size of the government but not necessarily improve governance. The slogan adopted by the government of “less government and more governance”, should be followed in letter and spirit.
§ Moreover, Lokpal and Lokayukta must be financially, administratively and legally independent of those whom they are called upon to investigate and prosecute.
§ Lokpal and Lokayukta appointments must be done transparently so as to minimize the chances of the wrong sorts of people getting in.
There is a need for a multiplicity of decentralized institutions with appropriate accountability mechanisms, to avoid the concentration of too much power, in any one institution or authority.
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