Self Determination
- Definition:
- Self-determination refers to the right of a group or a people to freely determine and control their political, economic, social, and cultural status. It is essentially about making choices and decisions freely.
- Key Elements:
- Freedom of Choice:
- Individuals or groups have the right to freely choose their sovereignty and international political status.
- Autonomy:
- It often implies a level of autonomy or self-government, allowing communities to govern themselves without interference.
- Democracy:
- It involves democratic methods, typically through voting, to express the collective will of the citizens.
- Rights and Liberties:
- It often includes the protection of individual rights, freedom, and liberties.
- Cultural Integrity:
- It encompasses the right to preserve one’s culture, language, and heritage.
- Application:
- Nations and Peoples:
- It’s often related to nations or peoples seeking independence or autonomy within a sovereign state, allowing them to form their own independent state or have autonomy within the existing state.
- Individuals:
- On an individual level, it relates to personal decisions, where one has the right to make choices regarding their life without external compulsion.
- International Law:
- Recognized under international law, it allows peoples to pursue their political, economic, social, and cultural development within the framework of existing sovereign states.
- Limitations:
- The exercise of self-determination might have limitations, particularly when it infringes on the sovereignty and territorial integrity of existing states or when it conflicts with other rights and principles, such as equality and non-discrimination.
- Examples:
- The decolonization process where colonized nations gained independence is an example of self-determination.
- Indigenous peoples claiming the right to govern their lands and resources is also an exercise in self-determination.
In Defence of Indian Liberalism
The quote attributed to K.M. Panikkar illustrates two significant streams of Indian liberalism.
First Stream: Rammohan Roy
- Emphasis on Individual Rights:
This stream, initiated by Rammohan Roy, strongly emphasized the significance of individual rights. It brought attention to the rights of women in particular, advocating for their autonomy and empowerment.
- Women’s Rights:
Rammohan Roy is renowned for his advocacy for women's rights, notably opposing practices like Sati and advocating for women's education and property rights.
- Modern Reforms:
This stream is also known for embracing modernity and rationalism, integrating liberal values with Indian traditions.
Second Stream: K.C. Sen, Justice Ranade, Swami Vivekananda
- Social Justice within Orthodox Hinduism:
This stream, represented by thinkers like K.C. Sen, Justice Ranade, and Swami Vivekananda, aimed to introduce the spirit of social justice within the orthodox structures of Hinduism.
It involved a restructuring of societal norms to accommodate egalitarian principles within the traditional framework.
- Swami Vivekananda’s Perspective:
Swami Vivekananda believed that the reordering of Hindu society in accordance with liberal principles was pivotal. He emphasized religious tolerance, acceptance, and the equal treatment of all individuals, regardless of their background.
- Balancing Tradition and Reform:
This stream tried to balance traditional values with the need for social reform, addressing inherent social inequalities and promoting social harmony
Concept of Universal Adult Suffrage or Franchise
1. Universal:
- Meaning: Applies to everyone without any discrimination or restriction.
- Context: In terms of voting, it implies that every citizen, regardless of their race, color, creed, gender, or social status, has the right to vote, provided they meet the age requirement.
2. Adult:
- Meaning: A person who has reached the age of maturity as defined by law.
- Context: For voting purposes, an adult is typically someone who is 18 (Amend 61) years or older, which is the legal age for voting in many countries, including India.
3. Franchise:
- Meaning: The right to vote in public elections.
- Context: It is the granting of voting rights to citizens who meet the eligibility criteria, such as age and residency.
4. Suffrage:
- Meaning: Another word for the right to vote in political elections.
- Context: It is often used interchangeably with “franchise” and represents the right of citizens to participate in the election process
Country Wise Details of the Constitution
Germany
- Constitution:
- Keyword: Ethnicity-Based Identity
- Unique Feature: Focuses on ethnicity as a criterion for citizenship.
- Bicameralism:
- Legislature Structure: Consists of the Federal Assembly (Bundestag) and the Federal Council (Bundesrat), combining direct and proportional representation.
India
- Constitution:
- Keyword: Inclusive Citizenship
- Unique Feature: Does not consider ethnic identity for citizenship and is influenced by various international constitutions.
- Influences: British, Irish, French, Canadian, and United States Constitutions.
South Africa
- Constitution:
- Keyword: Anti-Discrimination
- Unique Feature: Developed post-apartheid with a focus on ending racial discrimination and ensuring rights and adequate living conditions for all.
- Bill of Rights:
- Significance: Cornerstone of democracy, forbidding discrimination on various grounds and enforced by a special constitutional court.
Indonesia
- Constitution:
- Keyword: Educational and Welfare Provisions
- Unique Feature: Mandates the government to establish a national education system and ensure the welfare of the poor and destitute children.
United Kingdom
- Constitution:
- Keyword: Unwritten Constitution
- Unique Feature: Comprises various documents and decisions collectively serving as the constitution.
Nepal
- Constitution:
- Keyword: Struggle for Democracy
- Unique Feature: Has undergone multiple revisions, reflecting the country's prolonged struggles for democracy and restructuring of the government.
Israel
- Proportional Representation:
- Unique Feature: Ensures diverse representation in the legislature and often results in multi-party coalition governments.
West Indies
- Federalism:
- Unique Feature: Formed in 1958 as a federation of multiple islands with diverse cultures, dissolved in 1962 due to internal conflicts.
Nigeria
- Federalism:
- Unique Feature: Formed as a federation in 1950 with three major ethnic groups, faced military regimes due to internal conflicts.
Bolivia
- Local Government:
- Unique Feature: Decentralized power to local levels with the Decentralization Law, enabling the establishment of municipalities and popular election of mayors.
Brazil
- Local Government:
- Unique Feature: The Constitution grants autonomy and protection to local governance structures, prohibiting interference in local affairs.
France
- Constitution:
- Unique Feature: Has undergone numerous reforms, reflecting France’s dynamic constitutional journey marked by revisions and adaptations.
Japan
Constitution:
- Keyword: Peace Constitution
- Unique Feature: Formulated post-WWII, emphasizing peaceful ideals and constitutional pacifism, reflecting Japan’s commitment to non-aggression and cooperative international relationships
Chapter 1 - Constitution : Why & How
Overview of Constitutions
- Definition:
A Constitution is a set of basic rules for minimal coordination amongst members of a society
- Functions:
- Provide Basic Rules:
- Specify Decision-Making Powers:
- Set Limits on Government:
- Enable Government to Fulfil Aspirations:
Allow for minimal coordination amongst members of a society.
It decides how the government will be constituted and who has the power to make decisions in a society.
Imposes fundamental limits on what a government can impose on its citizens, which the government may never trespass.
Creates conditions for a just society and enables the government to fulfil the aspirations of a society.
Types of Constitutions
Monarchical Constitution:
In this constitution, a monarch decides the laws and policies.
Single Party Constitution:
Example: Old Soviet Union.
One single party is given the power to decide laws and policies.
Democratic Constitution:
Example: Indian Constitution.
Specifies that, in most instances, Parliament gets to decide laws and policies.
Enabling Provisions of the Constitution
Purpose
Constitutions are not only about controlling the powers of the government but also empower the government to pursue the collective good of the society.
Promotion of Collective Good
They provide powers to the government to promote the collective good of the society, ensuring the welfare and well-being of its citizens
Three Types of Identities of a Citizen
- Political Identity
Political identity is formed through agreement to a basic set of norms and principles about governance, serving as the overarching framework within which individuals pursue aspirations, goals, and freedoms, defining the authoritative constraints and fundamental values of a collective entity.
- Moral Identity
Moral identity is bestowed by the constitution, defining the fundamental values and moral norms that individuals may not trespass, serving as a guide to ethical conduct and moral decision-making within the society.
- National Identity
National identity is embodied in the constitution, reflecting the unique conceptions, values, and traditions of a people, and while it may share basic political and moral values with other constitutions, it differs in the way it enshrines the distinctive character of a nation.
Authority of a Constitution
- What is a Constitution?
Definition
A Constitution is a compact document or a set of documents that comprise a number of articles about the state
- How Effective is a Constitution?
Effectiveness
Many constitutions around the world exist only on paper, raising questions about their effectiveness
- Is a Constitution Just?
Justice Aspect
The justice of a constitution can be subjective and is often evaluated based on how well it upholds the rights, freedoms, and equality of the citizens, and whether it provides a framework for a just and equitable society
Mode of Promulgation
- Formally created by a Constituent Assembly between December 1946 and November 1949
- Was not an instrument for the aggrandisement of personal power
- The final document reflected the broad national consensus at the time.
Substantive Provisions of a Constitution
- No constitution by itself achieves perfect justice.
- It has to convince people that it provides the framework for pursuing basic justice.
Balanced Institutional Design
- Horizontally fragments power across different institutions like the Legislature, Executive, and the Judiciary, and independent statutory bodies like the Election Commission.
- Ensures that even if one institution wants to subvert the Constitution, others can check its transgressions.
- A constitution must strike the right balance between certain values, norms, and procedures as authoritative.
- Too rigid a constitution is likely to break under the weight of change; too flexible will give no security, predictability, or identity to a people.
- Described as ‘a living’ document, striking a balance between the possibility to change the provisions and the limits on such changes
- An intelligent system of checks and balances has facilitated the success of the Indian Constitution.
Creation of the Indian Constitution
Constituent Assembly
Constituent Assembly. The assembly had its first sitting on 9 December 1946 and reassembled for divided India on 14 August 1947.
Members Selection
Members of the Constituent Assembly were chosen by indirect election by members of the Provincial Legislative Assemblies, established under the Government of India Act, 1935.
The selection was based on a plan proposed by the Cabinet Mission of the British cabinet.
Seat Allocation
Seats were allotted to each Province (292) and each Princely (93) State or group of States based on their population, roughly in the ratio of 1:10,00,000.
Province Election Method
Seats in each Province were distributed among three main communities: Muslims, Sikhs, and general, based on their respective populations.
Members of each community in the Provincial Legislative Assembly elected their own representatives using proportional representation with a single transferable vote.
Princely States Election Method
The method of selecting representatives of Princely States was determined by consultation.
Composition of the Constituent Assembly
Post-Partition Changes:
Reduction in Members: Due to the Partition under the plan of 3 June 1947, members elected from territories which fell under Pakistan ceased to be members, reducing the number of members to 299.
Adoption and Enforcement:
The Constitution was adopted on 26 November 1949 and came into force on 26 January 1950.
284 members were actually present on 24 January 1950 and appended their signature to the Constitution as finally passed.
Representation in the Assembly
Religious Representation: Members of all religions were given representation.
Scheduled Castes Representation: The Assembly had twenty-eight members from the Scheduled Castes.
Political Parties: The Congress dominated the Assembly, occupying eighty-two per cent of the seats post-Partition.
Diversity within Congress: The Congress was a diverse party accommodating almost all shades of opinion within it
The Principle of Deliberation in the Constituent Assembly
- Every foundational issue of a modern state was discussed with sophistication, except for the introduction of universal suffrage, which was passed without virtually any debate, showcasing the democratic commitment of the Assembly
- The Constitution drew authority from public reason; members placed great emphasis on discussion and reasoned argument.
- Meaning of Public Reason : Public Reason refers to a form of reasoning and dialogue used in the deliberation of political matters, aiming to justify or criticise laws, policies, or institutions in a manner that is accessible and acceptable to all individuals, regardless of their diverse moral, philosophical, or religious doctrines.
It should have inclusivity, accessibility, impartiality & rationality
Procedures in the Constituent Assembly
- The Constituent Assembly had eight major Committees focusing on different subjects
- Notable leaders like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, or B.R. Ambedkar chaired these Committees, despite having differing viewpoints and disagreements
- The Assembly’s 19 sessions were open to the press and the public, ensuring transparency
- The Assembly met for one hundred and sixty-six days, spread over two years and eleven months.
Objective Resolution by Nehru
Objectives Resolution (the resolution that defined the aims of the Assembly) moved by Nehru in 1946
- Independent Sovereign Republic: India as an autonomous entity with complete sovereignty.
- Union Formation: Integration of erstwhile British Indian territories, Indian States, and willing external parts.
- Autonomous Units: Territories in the Union maintaining autonomy in government and administration.
- People’s Sovereignty: All powers and authority deriving from the people of India.
- Justice and Equality: Guarantee of social, economic, and political justice; equality of status, opportunities, and before law.
- Fundamental Freedoms: Assurance of basic freedoms of speech, expression, belief, faith, worship, vocation, association, and action, subject to law and public morality.
- Safeguards for Vulnerable Groups: Adequate safeguards for minorities, backward and tribal areas, depressed and other backward classes.
- Territorial Integrity: Maintenance of the territorial integrity of the Republic and its sovereign rights on land, sea, and air according to international law.
- World Peace Contribution: Commitment to promoting world peace and the welfare of mankind.
Specific Constitutions and Their Unique Features:
German Constitution
- Keyword: Ethnicity-Based Identity
- Constituted by being ethnically German.
- Gives expression to ethnicity as a criterion for citizenship.
Indian Constitution
- Keyword: Inclusive Citizenship
- Does not make ethnic identity a criterion for citizenship.
- Parliament decides laws and policies, ensuring diverse representation.
- Influences
- British Constitution: Parliamentary form of government, First Past the Post, rule of law, institution of the Speaker, and law-making procedure.
- Irish Constitution: Directive Principles of State Policy.
- French Constitution: Principles of Liberty, Equality, and Fraternity.
- Canadian Constitution: Quasi-federal form of government and the idea of Residual Powers.
- United States Constitution: Charter of Fundamental Rights, Power of Judicial Review, and independence of the judiciary.
South African Constitution
- Keyword: Anti-Discrimination
- Developed to end racial discrimination.
- Assigns responsibilities to the government for promoting conservation and protecting against unfair discrimination.
- Mandates progressive assurance of adequate housing and health care.
Indonesian Constitution
- Keyword: Educational and Welfare Provisions
- Enjoins the government to establish a national education system.
- Ensures welfare of the poor and destitute children.
United Kingdom Constitution
- Keyword: Unwritten Constitution
- Comprises a series of documents and decisions collectively serving as the constitution.
Nepal Constitution
- Keyword: Struggle for Democracy
- Has had multiple constitutions, mainly ‘granted’ by the King.
- Faced with militant political agitations for restructuring the government.
- Emerged as a democratic republic in 2008, abolishing the monarchy.
- Adopted a new constitution in 2015 after prolonged struggles and debates over the role of the monarchy
Chapter 2 - Rights in the Indian Constitution
Fundamental Rights Summary
Case Study for Absence of Rights and Human Rights Violation
- Machal Lalung Case: Example: Machal Lalung, a resident of Assam, remained in judicial custody for 54 years without a trial, highlighting severe judicial negligence and human rights violation, until intervention by the National Human Rights Commission in 2005.
- 1982 Construction Workers Case: Example: During the 1982 Asian Games construction, workers were subjected to poor conditions and underpayment, exemplifying forced labour and violation of the Fundamental Right against exploitation, leading to Supreme Court intervention for wage regulation.
Introduction to Rights
- Definition : Bill of Rights: A list of rights mentioned and protected by the constitution.
- Purpose
- Prohibits government from acting against the rights of individuals
- Ensures a remedy in case of violation of these rights
- Historical Demand : The Motilal Nehru committee demanded a bill of rights in 1928.
Fundamental Rights
- Definition
- Fundamental Rights: Rights that are so important that the Constitution has separately listed them and made special provisions for their protection
- Importance
- These rights are specially protected by the Constitution.
- The Constitution ensures that they are not violated by the government
- Protection
- Judiciary has the powers and responsibility to protect fundamental rights from violations by actions of the government.
- Executive and legislative actions can be declared illegal by the judiciary if they violate or unreasonably restrict fundamental rights
- Limitations
- Fundamental rights are not absolute or unlimited
- Government can put reasonable restrictions on the exercise of fundamental rights.
Bill of Rights in South Africa
- Introduction
- Inaugurated in December 1996, post the dissolution of the Apartheid government
- Created at a time when South Africa faced the threat of a civil war
- Significance
- The Bill of Rights is a cornerstone of democracy in South Africa
- It forbids discrimination on various grounds including race, gender, pregnancy, marital status, etc
- Enforcement : A special constitutional court enforces the rights enshrined in the constitution.
- Rights Granted - Extensive range of rights granted, including: - Right to Dignity - Right to Privacy - Right to fair labour practices - Right to healthy and protected environment - Right to adequate housing - Right to health care, food, water, and social security - Children’s rights - Right to basic and higher education - Rights of cultural, religious, and linguistic communities - Right to information
Difference between fundamental and ordinary rights
Criteria | Fundamental Rights | Ordinary Rights |
Protection and Enforcement | Protected and guaranteed by the constitution. | Protected and enforced by ordinary law. |
Amendment Process | Can only be changed by amending the Constitution. | May be changed by the legislature by ordinary process of law making. |
Violation Consequences | No organ of the government can act in a manner that violates fundamental rights. | Violations are subject to legal repercussions as defined by ordinary law. |
Rights to Equality
Article 16 (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
- Article 16(4) of the Constitution:
- Clarification: It explicitly states that a policy like reservation will not be seen as a violation of the right to equality.
- Rationale: Reservations are in line with the principle of equality as they ensure equal opportunity to socially and educationally backward classes.
- Concept of Discrimination:
- Definition: Discrimination refers to unjust or prejudicial treatment of different categories of people, often based on aspects like caste, gender, religion, race, or place of birth.
- Example: Instances where discrimination is based on caste or gender are clear manifestations of this concept
- Right to Equality:
- Objective: This right aims to eliminate various forms of discrimination and ensures equal access to public places such as shops, hotels, places of entertainment, wells, bathing ghats, and places of worship.
- Scope: It prohibits discrimination on grounds of religion, race, caste, sex, or place of birth and extends to public employment.
- Importance: It is pivotal as it rectifies historical inequalities and practices in society, making it integral for true democracy.
- Highlight: The right to equality is foundational for ensuring a sense of equality of dignity and status among all citizens.
- Abolition of Untouchability:
- Definition: Untouchability is a crude manifestation of inequality, primarily based on caste discrimination.
- Legal Status: The practice of untouchability has been abolished under the right to equality
- State Conferment of Titles:
- Provision: The state shall confer titles only on persons who excel in the military or academic field.
- Objective: To maintain equality and avoid discrimination based on unearned privileges and statuses
- Preamble to the Constitution:
- Content: It mentions two aspects of equality: equality of status and equality of opportunity.
- Equality of Opportunity: It implies that all sections of society should enjoy equal opportunities.
- Special Schemes and Measures:
- Purpose: To improve the conditions of certain sections of society, including children, women, and the socially and educationally backward classes.
- Implementation: The government can implement special schemes and measures, such as reservations in jobs and admissions.
- Reflection on Equality:
- Question: In a society with various kinds of social inequalities, what does equal opportunity truly mean?
- Answer: It means the implementation of policies like reservations to ensure that historically marginalized and disadvantaged groups have access to equal opportunities.
Right to Freedom
- Article 21: Protection of Life and Personal Liberty:
- Definition: No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Extension: It includes the right to live with human dignity, free from exploitation, and encompasses the right to shelter and livelihood.
- Right to Freedom:
- Essence: It is intertwined with equality and is essential for democracy, encompassing freedom of thought, expression, and action.
- Limitation: It does not permit unrestricted freedom which may endanger others' freedom or disrupt law and order
- Preventive Detention:
- Definition: It is the act of arresting a person out of apprehension that he or she is likely to engage in unlawful activity, without the usual procedure.
- Duration and Review: It can be extended only for three months and is subject to review by an advisory board.
- Concerns: It has been a subject of misuse and there is a tension between this provision and the right to life and personal liberty.
- Other Freedoms and Restrictions:
- Examples: Right to freedom of speech and expression, and freedom to assemble are subject to restrictions such as public order, peace, and morality.
- Potential Misuse: The government’s power to impose restrictions can be misused to curb genuine protests and dissent.
- Public and Individual Responsibility:
- Concept: Freedoms are defined to allow every person to enjoy their freedom without threatening the freedom of others and without endangering the law and order situation.
- Rights of Accused
- Constitutional Assurance & Presumption of Innocence: No one is considered guilty unless proven so by the court, challenging the common belief that anyone charged is guilty.
- Right to Defense: Every accused person has the right to get adequate opportunity to defend themselves to ensure a fair trial.
- Constitutional Provisions for a Fair Trial:
- Protection from Double Jeopardy: No person would be punished for the same offence more than once.
- Protection from Ex Post Facto Laws: No law shall declare any action as illegal from a backdate.
- Right Against Self-Incrimination: No person shall be compelled to be a witness against themselves.
Right Against Exploitation
- Objective: This right aims to protect the underprivileged and deprived sections of the society from exploitation by fellow human beings.
- Prohibition of Forced Labour (Begar):
Definition: Begar is a form of exploitation involving forced labour without payment.
Constitutional Prohibition: The Constitution prohibits begar and any form of forced labour, which were historically imposed by landlords, moneylenders, and other wealthy persons.
Legal Status: Any form of bonded labour, including in brick kiln work, is now declared a crime and is punishable.
- Prohibition of Slavery:
Definition: It involves buying and selling of human beings and using them as slaves.
Constitutional Prohibition: The Constitution prohibits any form of slavery and human trafficking.
- Child Labour and Right to Education:
Constitutional Prohibition: The Constitution forbids the employment of children below the age of 14 years in dangerous jobs like factories and mines.
Right to Education: With the right to education becoming a fundamental right for children, the right against exploitation becomes more meaningful
Right to Freedom of Religion
- Right to Freedom of Religion
Definition: This right allows everyone to follow the religion of their choice, a freedom considered as a hallmark of democracy.
Historical Context: Historically, many rulers and emperors did not allow this freedom, leading to persecution or forced conversion to the ruler’s religion.
- Freedom of Faith and Worship:
Scope: In India, this freedom includes the right to choose, practice, and propagate any religion, or to not follow any religion i.e encompassing freedom of conscience.
Limitations: The government can impose restrictions to protect public order, morality, and health, meaning it is not an unlimited right.
Government Interference: The government can interfere to root out social evils, such as sati, bigamy, or human sacrifice.
- Controversies and Tensions:
Cause: Limitations on religious practices often lead to tensions between followers of various religions and the government, perceived as interference.
Conversions: The right to propagate one’s religion includes persuading people to convert, but forcible conversions are not allowed, leading to debates and resentments.
- Equality of All Religions:
Principle: The government must extend equal treatment to different religions, meaning it will not favor any particular religion, reflecting the secular nature of India.
Implications: There is no official religion, and public officials or institutions will not favor or preach any religion, ensuring non-discrimination in employment based on religion
Cultural & Educational Rights
- Cultural and Educational Rights:
Context: India's society is characterised by vast diversity, with numerous distinct social sections and cultural groups.
Question: In such a diverse society, should a minority group have to adopt the culture of the majority?
- Constitutional Embrace of Diversity:
Principle: The Constitution of India perceives diversity as the nation's strength and provides fundamental rights to protect the cultural heritage of minorities.
Protection of Minority Rights: The Constitution safeguards the rights of minorities to maintain their culture, language, and script.
- Definition of Minority Status:
Scope: Minority status in India is not solely dependent on religion but also includes linguistic and cultural minorities.
Definition: Minorities are groups that, in a particular part of the country or in the country as a whole, are outnumbered by some other social section and have a common language or religion.
- Educational Rights of Minorities:
Provision: All minorities, religious or linguistic, have the right to set up their own educational institutions to preserve and develop their own culture.
Non-Discrimination Clause: The government will not discriminate against any educational institution on the basis of it being under the management of a minority community while granting aid.
- Objective of Cultural and Educational Rights:
Purpose: To ensure that every cultural group, regardless of its size or majority/minority status, has the opportunity to conserve, develop, and propagate its distinctive culture, language, and traditions.
Right to Constitutional Remedies
- Right to Constitutional Remedies:
- Definition: It is a fundamental right that empowers citizens to approach a High Court or the Supreme Court to restore any violated fundamental rights.
- Significance: Termed as the ‘heart and soul of the constitution’ by Dr. Ambedkar, it is pivotal for the enforcement of rights and upholding constitutional values.
- Writs:
- Habeas Corpus: Ensures a person's right to be presented before the court and challenges unlawful arrests.
- Mandamus: Issued when an office holder is not performing legal duty, infringing on an individual's right
- Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdictio
- Quo Warranto: This writ is issued when the court finds that a person is holding office but is not entitled to hold that office
- Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court
- National Human Rights Commission (NHRC):
- Establishment: Created in 1993, it is an independent body aimed at protecting fundamental and other kinds of rights.
- Composition: Includes former justices of the Supreme Court and High Court and members with knowledge and experience in human rights.
- Functions: Inquires into complaints of human rights violations, conducts jail visits, promotes research in human rights, and more.
- Limitation: It does not have the power of prosecution but can make recommendations to the government or courts.
- Other Protection Mechanisms:
- Various Commissions: Institutions like the National Commission on Minorities, the National Commission on Women, and the National Commission on Scheduled Castes work to protect the rights of specific groups.
- Independent Organizations: Bodies like the People’s Union for Civil Liberties (PUCL) and People’s Union for Democratic Rights (PUDR) act as watchdogs against violations of rights.
- Real Test of Rights:
- Implementation: The actual implementation of rights is crucial, and the poor, illiterate, and deprived sections of the society must be able to exercise their rights.
- Interventions: The NHRC’s interventions in cases like disappeared youth in Punjab and the Gujarat riot cases have been significant.
Directive Principle of State Policy borrowed from Irish Constitution
- Directive Principles of State Policy:
Definition: These are guidelines incorporated in the Constitution to provide policy direction to future governments on achieving equality and well-being of all citizens.
Nature: They are ‘non-justiciable,’ meaning they are not legally enforceable by the judiciary, and governments are morally obligated to implement them.
- Contents of the Directive Principles:
Goals and Objectives: They outline the aspirations and values that the society should adopt to ensure collective progress and harmony.
Rights: They enumerate certain rights that individuals should enjoy apart from the Fundamental Rights.
Policies: They suggest certain policies that the government should adopt to realize the envisioned goals.
- Implementation and Impact:
Efforts: Various governments have endeavored to actualize these principles through measures like zamindari abolition, bank nationalization, enactment of factory laws, and promotion of cottage and small industries.
Initiatives: The implementation of the right to education, formation of panchayati raj institutions, employment guarantee programs, and the mid-day meal scheme are reflective of the Directive Principles.
Fundamental Duties
- Fundamental Duties of Citizens:
Introduction: Incorporated through the 42nd amendment in 1976, the Fundamental Duties outline the responsibilities of every citizen towards the nation and fellow citizens.
Enumeration: Ten duties were initially enumerated, emphasizing the adherence to the Constitution, defense of the country, promotion of harmony, and protection of the environment.
- Enforcement and Impact:
Enforcement: The Constitution does not provide any specific provisions for enforcing these duties, leaving it to the moral and ethical discretion of the citizens.
Relationship with Rights: The enjoyment of rights is not made conditional upon the fulfillment of duties, maintaining the independent and unconditional status of fundamental rights.
- Significance and Implications:
Civic Responsibility: The duties underscore the importance of active participation and commitment from citizens in fostering national unity and integrity.
Environmental Stewardship: One of the key duties is to protect the environment, reflecting the constitutional emphasis on sustainable development and ecological balance.
Comparison of DPSP & FR
- Similarities between Fundamental Rights and Directive Principles:
Complementary Nature: Both serve as complementary to each other, with Fundamental Rights restraining the government and Directive Principles exhorting the government to undertake welfare measures.
Objective of Welfare: While Fundamental Rights protect individual liberties, Directive Principles aim at the well-being of the entire society
- Differences between FR & DPSP
Aspect | Fundamental Rights | Directive Principles |
Legal Enforcement | Justiciable and legally enforceable. | Non-justiciable and not legally binding. |
Nature and Focus | Defensive, protecting individuals from excessive state intervention. | Positive, guiding the state in promoting social welfare. |
Conflict and Resolution | Conflicts arise when affected by the implementation of Directive Principles. | Implementation can lead to conflicts with Fundamental Rights. |
- Notable Instances and Resolutions:
Zamindari Abolition: the abolition faced opposition as it was seen as violating the right to property, leading to amendments and legal battles to reconcile individual rights with societal welfare
This is a prime example of the conflict between DPSP and FR. The abolition was a realization of the Directive Principles aiming at social welfare and equitable distribution of resources. However, it was seen as infringing upon the Fundamental Right to property of the zamindars.
Kesavananda Bharati Case: The Supreme Court ruled that there are certain basic features of the Constitution that cannot be changed by Parliament, settling the debate on constitutional amendments violating Fundamental Rights
This landmark judgment is pivotal in defining the boundaries of constitutional amendments concerning Fundamental Rights. It settled the debate on whether the implementation of Directive Principles can override the sanctity of Fundamental Rights.
Chapter 3 - Election & Representation
Introduction to Constitution & Election
- Democratic Process
- Types of DemocracyDirect Democracy: Citizens participate directly in decision-making and running the government. Examples: Ancient Greek city-states, local governments, gram sabhas
- Indirect Democracy: Citizens choose representatives to govern and administer the country through elections. Citizen's Role: Limited in major decisions; involved indirectly through elected representatives.
- Elections
- Democratic vs Non-democratic ElectionsDemocratic Elections: Free and fair elections, usually supervised by an independent body
- Non-democratic Elections: Rulers hold elections to present themselves as democratic without threatening their rule
- Ensuring Democratic Elections Democratic elections can be ensured by following a set of rules and regulations to maintain fairness and freedom in the electoral process
Election System in India
- Purpose of Detailed Election Procedures in Constitution The constitution explicitly details how votes are to be counted and representatives elected to avoid ambiguities and to set a standardized procedure, ensuring fairness and legitimacy.
- Impact of Election Rules Different rules can significantly impact the outcome of elections.
- Some rules may favour bigger parties or the majority community.
- Others may protect the interests of smaller players or minorities.
First Past the Post System / Plurality System
- First Past the Post System (FPTP)
- The country is divided into constituencies.
- Each constituency elects one representative.
- The candidate securing the highest number of votes is declared elected, not necessarily a majority of the votes (>50%)
- Congress Party's Win: The Congress party won 415 of the 543 Lok Sabha seats – over 80% of the seats with only 48% of the total votes.
- BJP's Scenario: The BJP secured 7.4% votes but acquired less than one per cent seats.
- Conclusion: The party won a greater share of seats than its share of votes due to the FPTP system, as winning candidates in many constituencies secured less than 50% of the votes.
- No Majority Requirement: Winning candidates often secure less than 50% of the votes.
- Wasted Votes: Votes for losing candidates go ‘waste’ as they get no seat from those votes.
- Possibility of Low Vote High Win: A party could potentially win all seats with only 25% or less of total votes if everyone else gets even fewer votes.lower voter turnout could potentially magnify the effect.
1.1 Explanation
The FPTP or Plurality System is the electoral method prescribed by the Constitution of India.
1.2 1984 Lok Sabha Elections: An Illustration
1.3 Characteristics and Implications
Issue with FPTP & Solution
Representation Issues in FPTP:
- Non-Proportional Representation: The First Past The Post (FPTP) system does not necessarily ensure that the representation in the legislature is proportional to the population.
- Example: Muslim Representation in India:
- Population Proportion: Muslims constitute approximately 14.2% of India’s population.
- Legislative Representation: The representation of Muslim MPs in the Lok Sabha has typically been less than 6%, which is significantly lower than their population proportion.
- Issue
- Marginalized Voices
- Democratic Deficit
Proportional Representation System
- Proportional Representation (PR) System
- This system allots parliamentary seats to each party in proportion to the total votes it received.
- In this system, a party gets the same proportion of seats as its proportion of votes.
- It is used in countries like Israel and Netherlands.
- India adopts the PR system on a limited scale for indirect elections.
- Once the votes are counted, each party fills its quota of seats by picking its nominees from a pre-declared preference list.
- The representatives from a constituency may belong to different parties.
- Single Constituency Nation: Some countries treat the entire nation as one constituency (e.g., Israel, Netherlands) and allocate seats according to the national vote share of each party.
- Multi-Member Constituencies: Other countries are divided into several multi-member constituencies (e.g., Argentina, Portugal), and each party prepares a list of candidates for each, distributing seats based on votes polled by a party in each constituency.
- Single Transferable Vote (STV): This is a variation used in India for Rajya Sabha elections. In this system, voters rank candidates in order of preference. It aims to achieve proportional representation in the elected body.
- Voters exercise their preference for a party, not for a candidate.
- The Constitution prescribes a complex variation of the PR system for the election of President, Vice President, and for the election to the Rajya Sabha and Vidhan Parishads.
4.1 Overview
4.2 Working Mechanism
4.3 Types of PR System
4.4 Voting Preference
4.5 Applications in India
Single Transferable Vote (STV) System in Rajya Sabha Elections
3.1 Overview
- This is a third variant of Proportional Representation (PR).
- It is used for Rajya Sabha elections in India.
- Each state has a specific quota of seats in the Rajya Sabha.
- Members are elected by the respective State legislative assemblies.
3.2 Voters and Voting Process
- Voters: The MLAs in the respective states.
- Voting Method: Voters are required to rank candidates according to their preference.
3.3 Winning Criteria
- Quota of Votes: A candidate must secure a minimum quota of votes to be declared the winner.
- Formula:
- Example: For 4 Rajya Sabha members to be elected by 200 MLAs in Rajasthan, the winner would require 41 votes.
3.4 Counting of Votes
- The votes are initially counted based on first preference votes.
- If the required number of candidates fail to fulfil the quota, the candidate who secured the lowest votes of first preference is eliminated.
- The eliminated candidate's votes are transferred to the candidates who are mentioned as the second preference on those ballot papers.
- This process continues until the required number of candidates are declared elected.
Better Explanation of STV
Deciding Rajya Sabha Seats:
The allocation of Rajya Sabha seats for each state in India is determined by the Fourth Schedule of the Constitution of India. The allocation is roughly proportional to the population of each state. The President of India also has the authority to nominate 12 members for their contributions to art, literature, science, and social services.
Example with Chhattisgarh:
Alright, if Chhattisgarh has 5 Rajya Sabha seats and there are 90 MLAs, here is how the process would work:
1. Calculating the Quota:
To calculate the quota, you would use the formula:
Plugging in the values:
So, each candidate would need 16 votes to be elected to the Rajya Sabha.
2. Voting and Counting:
- Each of the 90 MLAs would rank the candidates in order of preference.
- Initially, only the first preference votes are counted.
- Any candidate who receives 16 or more first preference votes is declared elected.
3. Elimination and Vote Transfer:
- If after the first count, all 5 seats are not filled, the candidate with the fewest first preference votes is eliminated.
- The votes of the eliminated candidate are then transferred to the remaining candidates based on the second preference marked on the ballot papers of the eliminated candidate.
- This process continues, with candidates being eliminated and their next preference votes being transferred, until all 5 seats are filled.
Example Scenario:
- Suppose there are 10 candidates for the 5 Rajya Sabha seats.
- After the first count, only 3 candidates receive 16 or more first preference votes and are elected.
- The candidate with the fewest first preference votes is eliminated, and their second preference votes are distributed to the remaining candidates.
- This process is repeated until the remaining 2 seats are filled.
Conclusion:
This method ensures that the elected members are the most preferred candidates among the voters (MLAs in this case), and it allows for a more proportional and representative allocation of seats.
STV Example
You are absolutely right, and I apologize for the oversight in the example. If candidate J has received 0 votes, it means no MLA has marked J as their first preference, and thus, there would be no second preference votes to transfer from J's ballots.
Corrected Example:
Let's consider a more accurate scenario. Suppose the votes are as follows:
- A: 20 votes (Elected)
- B: 18 votes (Elected)
- C: 15 votes
- D: 12 votes
- E: 10 votes
- F: 8 votes
- G: 4 votes
- H: 2 votes
- I: 1 vote
- J: 0 votes
Since J has 0 votes, we would look at the candidate with the next fewest votes, which is candidate I with 1 vote.
- Elimination of Candidate I:
- Candidate I is eliminated as they have the fewest first preference votes.
- The ballot that had I as the first preference is reviewed for the second preference.
- Let's say the second preference on this ballot is candidate H.
- Transfer of Vote:
- The vote is transferred to candidate H, as H is the second preference on the eliminated candidate I’s ballot.
- Now, candidate H has 3 votes (2 original + 1 transferred).
- Continuation of Process:
- The process continues with the elimination of the candidate with the fewest votes and the transfer of their votes based on the next preferences marked on their ballots, until all seats are filled.
Round 1: [A: 20] [B: 18] [C: 15] [D: 12] [E: 10] [F: 8] [G: 4] [H: 2] [I: 1] [J: 0]
| | | | | | | | |
|---------|--------|--------|--------|--------|--------|--------|--------|
Round 2: [A: 20] [B: 18] [C: 15] [D: 12] [E: 10] [F: 8] [G: 4] [H: 3] [J: 0] (I eliminated, vote transferred to H)
| | | | | | | |
|---------|--------|--------|--------|--------|--------|--------|
Round 3: [A: 20] [B: 18] [C: 15] [D: 12] [E: 11] [F: 9] [G: 5] (H eliminated, votes transferred to E, G, F)
| | | | | |
|---------|--------|--------|--------|--------|
Round 4: [A: 20] [B: 18] [C: 15] [D: 13] [E: 13] [F: 11] (G eliminated, votes transferred to E, F, D)
| | | | |
|---------|--------|--------|--------|
Round 5: [A: 20] [B: 18] [C: 21] [D: 13] [E: 18] (F eliminated, votes transferred to C, E)
| | | |
|---------|--------|--------|
Round 6: [A: 20] [B: 18] [C: 26] [E: 26] (D eliminated, votes transferred to E, C)
Difference Between FPTP & Proportional Representation
Why did India Choose FPTP
Summary: Reasons for India's Adoption of the FPTP System
1. Simplicity and Accessibility:
- Reason for Adoption: The First Past The Post (FPTP) system is straightforward and easy to understand for common voters with no specialized knowledge about politics and elections.
- Voter Experience: Voters simply endorse a candidate or a party, providing a clear choice at the time of elections. The system offers a choice between specific candidates, not just parties.
2. Constituency-Based Representation:
- Accountability: In the FPTP system, voters know their representative and can hold them accountable as each representative is responsible for one locality.
- Community Integration: The system encourages voters from different social groups to unite to win an election in a locality, promoting diversity and integration in a diverse country like India.
3. Stability and Governance:
- Stable Government: The FPTP system facilitates the formation of a stable government by generally giving the largest party or coalition some extra bonus seats, ensuring smooth functioning of the parliamentary government.
- Majority Requirement: The system requires that the executive has a majority in the legislature, which is crucial for the parliamentary system of executive.
4. Impact on Party System:
- Two-Party System: The FPTP system normally results in a two-party system where power is often shared by two major competitors alternately.
- Coalition and Diversity: In India, the rise of coalitions has allowed new and smaller parties to enter into electoral competition, fostering a multi-party coalition environment, especially after 1989.
5. Discouragement of Communal Parties:
- The system has discouraged the formation of political parties that get all their votes from one caste or community, promoting political diversity and inclusivity.
6. Evolution Post-Independence:
- One Party Dominance: Initially, there was a dominance of one party along with the existence of many smaller parties.
- Emergence of Competition: Gradually, many states are witnessing the emergence of a two-party competition, allowing for a more competitive political landscape.
7. Confirmation of Constitutional Expectations:
- The experience of the working of the Constitution and the FPTP system has confirmed the expectations of the constitution makers, proving to be simple, familiar, and effective in achieving clear majorities and discouraging communal parties.
8. Adaptation to Indian Context:
- Despite being a system that usually results in a two-party system, the FPTP in India has adapted to the diverse political landscape, allowing for the rise of multi-party coalitions and enabling new and smaller parties to enter the electoral competition.
Proportional Representation in Israel
Summary: Proportional Representation in Israel
1. Election System:
- Type: Israel employs a proportional representation system for elections to the legislature (Knesset).
- Voting: Voters vote for parties, not individual candidates, every four years.
- Representation: Parties gain seats in proportion to the votes they receive, allowing even smaller parties to gain representation.
2. Eligibility and Coalition:
- Minimum Votes: A party must secure a minimum of 3.25% of votes to be eligible for seats in the legislature.
- Outcome: This often results in multi-party coalition governments due to the representation of various small parties.
3. 2015 Election Results:
- Total Seats: There are 120 seats in the Knesset.
- Likud: Secured 23.40% of total votes, gaining 30 seats.
- Zionist Camp: Secured 18.67% of total votes, gaining 24 seats.
- Joint List: Secured 10.61% of total votes, gaining 13 seats.
- Yesh Atid: Secured 8.82% of total votes, gaining 11 seats.
- Kulanu: Secured 7.49% of total votes, gaining 10 seats.
- Habayit Hayehudi: Secured 6.74% of total votes, gaining 8 seats.
- Shas: Secured 5.74% of total votes, gaining 7 seats.
- Yisrael Beitenu: Secured 5.10% of total votes, gaining 6 seats.
- Other Parties: Secured varying percentages of votes, gaining seats accordingly.
4. Implications:
- Diverse Representation: The proportional representation system in Israel ensures diverse representation in the legislature, reflecting a range of political perspectives and interests.
- Coalition Dynamics: The presence of multiple parties often necessitates the formation of coalitions, impacting the governance and policy-making processes in the country.
How is it different from PR in India
Criteria | PR in India | PR in Israel |
Usage | Used for Reserved Constituencies in Lok Sabha and State Assemblies | Used for all Knesset (legislature) elections |
Voting | Voters vote for individual candidates in their constituencies | Voters vote for parties, not individual candidates |
Representation | Reserved constituencies ensure representation for Scheduled Castes and Scheduled Tribes | Parties gain seats in proportion to the votes they receive, ensuring representation for smaller parties |
Threshold | No specific threshold for reserved constituencies | 3.25% minimum vote threshold for a party to gain representation in the Knesset |
Election Frequency | Every five years for Lok Sabha; varies for State Assemblies | Every four years |
Outcome | Can lead to single-party majority or coalition governments | Often leads to multi-party coalition governments |
Objective | To ensure representation for historically oppressed and marginalized groups | To ensure diverse and pluralistic representation |
Seat Allocation | Reserved seats are allocated based on the population of SCs and STs in different regions | Seats are allocated to parties based on the proportion of votes received |
Reservation in Election
Summary: Reservation of Constituencies in India
1. Background:
- Objective: The reservation of constituencies in India aims to ensure fair representation for oppressed and smaller social groups, especially in the context of the FPTP system which can disadvantage these groups due to historical caste-based discrimination.
- Need: Dominant social groups can potentially win in every constituency, leaving oppressed groups unrepresented.
2. Evolution of the Reservation System:
- Separate Electorates: Before independence, the British government introduced ‘separate electorates’, allowing only voters from specific communities to elect a representative from their community.
- Reserved Constituencies: The Constituent Assembly opted for reserved constituencies where all voters can vote, but candidates must belong to the reserved community or social section.
3. Implementation:
- Reserved Seats: The Constitution reserves seats in the Lok Sabha and State Legislative Assemblies for Scheduled Castes (SC) and Scheduled Tribes (ST), initially for 10 years, extended up to 2020.
- Proportionality: The number of reserved seats is proportional to the SC and ST population in India. As of 26 January 2019, 84 seats are reserved for SC and 47 for ST in the Lok Sabha.
- Delimitation Commission: This independent body, appointed by the President of India, decides the reservation of constituencies, working with the Election Commission of India. It determines the boundaries and allocates reserved constituencies based on the population composition of SC and ST in each state.
4. Criteria for Reservation:
- Population Composition: Constituencies with the highest proportion of ST population are reserved for ST. For SC, constituencies with higher proportions are chosen, and they are spread throughout the state due to the even distribution of SC population across the country.
- Rotation: Reserved constituencies can be rotated each time the delimitation exercise is undertaken.
5. Reservation for Other Groups:
- Women Reservation: There is a growing demand for reservation of seats for women in the Lok Sabha and State Assemblies due to their underrepresentation. One-third of seats in rural and urban local bodies are reserved for women.
- Constitutional Amendment: Implementing similar provisions for Lok Sabha and Vidhan Sabhas would require a constitutional amendment, which has been proposed several times but not yet passed. Naari Vandana Adhiniyam
6. Current Status:
- Extension of Reservation: The Parliament can decide to further extend the period of reservation when it expires.
- Unmet Demands: The demand for women reservation in representative bodies is increasingly being articulated, reflecting the evolving needs and discussions regarding representation in India.
Free and Fair Election
Universal Franchise and Right to Contest in India
1. Universal Adult Franchise:
- Definition: Universal adult franchise means all adult citizens of the country are eligible to vote in elections.
- Indian Context: The Indian Constitution guarantees every adult citizen the right to vote, a right achieved after struggles in many countries.
- Age Eligibility: Initially, an adult was defined as an Indian citizen above the age of 21, but a 1989 amendment reduced the eligibility age to 18
2. Right to Contest:
- Eligibility: All citizens have the right to stand for election and represent the people, with different minimum age requirements for different positions (e.g., 25 years old for Lok Sabha or Assembly election).
- Restrictions: There are some restrictions, such as legal provisions disqualifying a person who has undergone imprisonment for two or more years for some offence.
- Inclusivity: There are no restrictions based on income, education, class, or gender, making the election system open to all citizens.
3. Constitutional Belief:
- Democratic Participation: The Constitution makers had a firm belief in the ability and worth of all adult citizens as equals in deciding societal, national, and constituency-related matters.
- Inclusive Decision-Making: The inclusive nature of the right to vote and contest elections underscores the democratic ethos of India, allowing diverse participation in the electoral process.
Independent Election Commission of India
I. Introduction
The Independent Election Commission of India was established to ensure a free and fair election system and process in India, a mechanism absent in many countries.
It operates under Article 324 of the Indian Constitution, which vests it with the superintendence, direction, and control of the electoral rolls and the conduct of elections.
II. Article 324: Constitutional Provision
Verbatim Text:
- Article 324: (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
III. Structure
- Composition:
- The Commission can be a single or multi-member body.
- It has been a multi-member body since 1993, consisting of the Chief Election Commissioner (CEC) and two Election Commissioners.
- The CEC presides over the Commission but does not have more powers than the other Commissioners.
- Appointment:
- Commissioners are appointed by the President of India on the advice of the Council of Ministers.
- There have been suggestions to change the appointment procedure to include consultations with the leader of the opposition and the Chief Justice of India.
- Tenure and Removal:
- Commissioners are appointed for a six-year term or until the age of 65, whichever is earlier.
- The CEC can be removed by the President if both Houses of Parliament make such a recommendation with a special majority.
- Other Commissioners can be removed by the President of India.
IV. Functions
- Election Supervision:
- The Commission supervises the preparation of voters’ lists and the overall election schedule.
- It has the power to postpone or cancel elections and implements a model code of conduct for parties and candidates.
- It can order a re-poll in a specific constituency and a recount of votes.
- Party and Symbol Recognition:
- The Commission accords recognition to political parties and allots symbols to each.
- Administrative Control:
- During elections, the Commission has control over the administration as far as election-related work is concerned.
- It can transfer officers, stop their transfers, and take action against them for failing to act in a non-partisan manner.
V. Independence and Assertiveness
- The Commission has emerged as an independent authority, asserting its powers to ensure fairness in the election process.
- It has acted impartially and unbiasedly to protect the sanctity of the electoral process.
- The Commission is more independent and assertive now than it was 25 years ago, not due to increased powers, but due to more effective use of existing powers.
VI. Challenges and Critical Situations
- The Commission has conducted seventeen Lok Sabha elections since 1951–52 and faced challenges such as holding elections in militancy-affected areas and dealing with unprecedented violence, as in the 2002 Gujarat Assembly elections.
- It has managed critical situations like the assassination of ex-Prime Minister Rajiv Gandhi during campaigning in 1991 and has had its decisions, like the postponement of elections, upheld by the Supreme Court
Electoral Reforms
Introduction
- No perfect election system.
- Imperfections and limitations in the election process.
- Democratic societies seek mechanisms for free and fair elections.
Current State in India
- India's efforts to ensure free and fair elections:
- Adult suffrage.
- Freedom to contest elections.
- Independent Election Commission.
Need for Electoral Reform
- Experience over 66 years highlights the need for reform.
- Suggestions from various sources:
- Constitutional changes.
- Shift from FPTP to PR system for proportional representation.
- Ensuring one-third women representation.
- Stricter control on money in politics.
- Ban on candidates with pending criminal cases.
- Prohibition of caste and religious appeals in campaigns.
- Regulation of political parties for transparency and democracy.
Challenges in Implementing Reforms
- Lack of consensus on suggested reforms.
- Limits of laws and formal provisions.
- Necessity for candidates, parties, and stakeholders to embrace democratic competition.
Other Means of Ensuring Fair Elections
- Active involvement of citizens in political activities.
- Constraints on citizens' regular political engagement.
- Importance of political institutions and voluntary organizations as watchdogs for free and fair elections
Chapter 4 - The Executive (Read Original Text)
Introduction to Executive
Introduction
- The executive is responsible for decision-making and administration.
- It involves policy decisions and day-to-day implementation.
Roles in Organizations
- In organizations, executives make decisions and supervise administrative functions.
- They set policies, rules, and regulations and ensure their implementation.
Government and the Executive
- In government, there is a division between policy-making and implementation
- Policy Making → Legislatures
- Implementation → The executive branch is responsible for implementing laws and policies.
Various titles are used for executive leaders, such as presidents or chancellors.
Components of the Executive
- The executive includes
- Temporary Executives → top political leaders (presidents, prime ministers, ministers)
- Permanent Executive → administrative machinery (civil servants).
- Political executives handle overall government policy, while permanent executives manage day-to-day administration
Types of Executives 1
Introduction
- Not all countries have the same type of executive.
- Variations in executive powers and functions exist worldwide.
- Different countries have distinct executive systems.
Types of Executive Systems
- Presidential System:
- The president is both the Head of State and Head of Government.
- High concentration of power in the office of the president.
- Examples: United States, Brazil, and many others.
- Parliamentary System:
- The prime minister is the head of government.
- President or monarch serves as the nominal Head of State with a ceremonial role.
- Real power lies with the prime minister and the cabinet.
- Examples: Germany, Italy, Japan, United Kingdom, and Portugal.
- Semi-Presidential System:
- Features both a president and a prime minister.
- President may have significant day-to-day powers.
- President and prime minister may belong to the same or different parties, leading to potential opposition.
- Examples: France, Russia, Sri Lanka, etc
Types of Executives 2
Comparison between Executive of India and Sri Lanka
Aspect | India (Parliamentary System) | Sri Lanka (Semi-Presidential System) |
System Type | Parliamentary | Semi-Presidential |
Head of Government | Prime Minister | President (also Head of Government) |
Ceremonial Head of State | President | President |
Direct Election of Head | No | Yes (President) |
President's Powers | Ceremonial with limited executive powers | Extensive executive powers |
Prime Minister's Selection | Leader of majority party in the lower house (Lok Sabha) | Appointed by the President from the majority party in Parliament |
President's Term | Five years | Six years |
Removal of Head | Complex impeachment process involving both houses of Parliament | Removal by a two-thirds majority in Parliament |
Supreme Court's Role in Impeachment | Not directly involved | Speaker can refer allegations to the Supreme Court if deemed necessary |
Parliamentary Executive in India
Historical Background
- India had prior experience with the parliamentary system under the Acts of 1919 and 1935.
- This experience demonstrated the effectiveness of parliamentary control over the executive.
- The Constitution makers aimed to ensure a responsive, accountable government that avoids personality cults.
Choice of Parliamentary System
- India chose the parliamentary executive over the presidential form of government.
- Emphasis on a strong executive with safeguards against personality cults.
- Mechanisms in the parliamentary system ensure executive accountability to the legislature and people's representatives.
Structure of Executive in India
- At the national level:
- President (Formal Head of State)
- Prime Minister and Council of Ministers (Run the government)
- At the State level:
- Governor (Formal Head of State)
- Chief Minister and Council of Ministers (Run the State government)
President
Executive Power and President
- The Constitution formally vests executive power in the President.
- In practice, the President exercises these powers through the Council of Ministers, led by the Prime Minister.
- President's term is five years, but there is no direct election; elected indirectly by MLAs and MPs.
- Election follows the principle of proportional representation with a single transferable vote.
Impeachment of the President
- The President can only be removed from office by Parliament through the impeachment procedure.
- Requires a special majority as specified in the Constitution.
- Grounds for impeachment: Violation of the Constitution.
Powers of President
- India's Constitution establishes a parliamentary system with a President as the formal head of the government.
- The President exercises executive, legislative, judicial, and emergency powers but primarily acts on the advice of the Council of Ministers.
- The Prime Minister and Council of Ministers hold the real executive power, supported by a majority in the Lok Sabha.
Binding Advice to the President
- Article 74(1) of the Constitution makes the President bound by the advice of the Council of Ministers.
- The President can request reconsideration but must ultimately act as per the reconsidered advice.
- This ensures that the government remains accountable to elected representatives.
Discretionary Powers of the President
- The President has the right to be informed of important matters and deliberations.
- Can express views on national matters to the Prime Minister.
- Discretionary powers exist in three scenarios:
- Sending back Council of Ministers' advice for reconsideration.
- Veto power over non-Money Bills passed by Parliament.
- Appointing the Prime Minister in situations of political uncertainty.
- The President's role has grown in significance when governments are unstable and coalitions are in power.
- Serves as a ceremonial head and a symbol of national unity.
- Provides stability by having a fixed term and appointing the Prime Minister when no party has a clear majority.
Case Study: Presidential Discretion
- In 1986, the Indian Post Office (Amendment) Bill was widely criticized for curbing press freedom.
- President Gyani Zail Singh did not take a decision on the bill.
- His successor, President Venkataraman, sent the bill back to Parliament for reconsideration.
- The bill was eventually abandoned when a new government came to power in 1989
President's Role in Choosing the Prime Minister in a Hung Parliament
Context
After 1977, Indian party politics became more competitive, leading to instances of no clear majority in the Lok Sabha.
Role of the President in a Hung Parliament
In situations where no party or coalition secures a clear majority in the Lok Sabha, the President plays a crucial role in selecting the Prime Minister
The President typically adopts an elaborate procedure to ascertain who has the best chance of forming a stable government.
Example: March 1998 Elections
In the March 1998 elections, no political party or coalition won a clear majority.
The BJP and its allies secured 251 seats, 21 seats short of a majority.
President Narayanan took several steps:
- He asked the leader of the alliance, Atal Behari Vajpayee, to provide documents supporting his claim of having the majority's support from concerned political parties.
- The President also advised Vajpayee to seek a vote of confidence within ten days of being sworn in as Prime Minister.
In essence, the President's role in such situations is to ensure that the chosen Prime Minister has a reasonable chance of winning a vote of confidence in the Lok Sabha and forming a stable government. This process helps maintain political stability and ensures that the government enjoys the support of the majority in the legislature.
Vice President
- The Vice President of India serves a five-year term.
- The method of election is similar to that of the President, excluding members of State legislatures from the electoral college.
- The Vice President can be removed from office by a resolution passed by the Rajya Sabha, with majority agreement from the Lok Sabha.
- The Vice President also serves as the ex-officio Chairman of the Rajya Sabha, the upper house of Parliament.
- In the event of a vacancy in the office of the President due to death, resignation, removal by impeachment, or other reasons, the Vice President assumes the role of the President until a new President is elected.
- For example, B. D. Jatti served as President temporarily after the death of Fakhruddin Ali Ahmed until a new President was elected.
Political Bureaucracy - Prime Minister & Council of Ministers
1. Introduction
- The Prime Minister of India is a central figure in the government and politics of India.
- The President exercises powers based on the advice of the Council of Ministers, with the Prime Minister leading this council.
- The Prime Minister's power is contingent on having majority support in the Lok Sabha.
2. Prime Minister Selection
- The Prime Minister is appointed by the President and must have majority support in the Lok Sabha.
- Coalition governments have become common since 1989, leading to consensus-based Prime Minister selections.
3. Council of Ministers
- The Prime Minister appoints and assigns portfolios to ministers, with ranks like cabinet minister, minister of State, or deputy minister.
- All ministers, including the Prime Minister, must be members of Parliament.
- If a non-MP becomes a minister or Prime Minister, they must be elected to Parliament within six months.
4. Parliamentary Control
- The Parliament exercises control and supervision over the executive.
- The Council of Ministers is collectively responsible to the Lok Sabha.
- A vote of no confidence against even a single minister can lead to the resignation of the entire Council.
5. Prime Minister's Role
- The Prime Minister is pivotal to the government.
- Acts as a link between the Council of Ministers, the President, and the Parliament.
- Responsible for communicating decisions and proposing legislation.
- Influential in crucial government decisions, policies, and leadership projection.
6. Influence of Political Conditions
- The Prime Minister's power varies with prevailing political conditions.
- Majority-party-led governments have a stronger Prime Minister.
- Coalition governments have led to discretionary roles for the President, consultations among political partners, and limitations on the Prime Minister's authority.
- Policy decisions require negotiation and compromise among coalition partners.
7. State-Level Parallels
- Similar parliamentary executive exists at the state level in India.
- Key variation is the role of the Governor, who has discretionary powers.
- Main principles of the parliamentary system apply at the state level as well.
Important Views on Political Bureaucracy
Ministerial Selection in the Constituent Assembly
- Begum Azeez Rasool advocated for a system where ministers would be elected by the legislature rather than being appointed by the Prime Minister or Chief Minister.
- They cited the Swiss system as an example, where the legislature elects the executive for a specific period.
- The single transferable vote system was suggested as a fair method for appointing the executive to ensure that all interests are represented.
Size of the Council of Ministers
- Prior to the 91st Amendment Act in 2003, the size of the Council of Ministers was determined based on the prevailing circumstances and needs of the time.
- This flexibility resulted in excessively large Councils of Ministers at times.
- In situations where no party had a clear majority, there was a tendency to offer ministerial positions to garner support from members of Parliament.
- There were no restrictions on the number of ministers that could be appointed, and a similar trend was observed in many Indian states.
91st Amendment Act (2003)
- The 91st Amendment Act introduced changes to address the issue of the Council of Ministers' size.
- It stipulated that the Council of Ministers at the central and state levels should not exceed 15 percent of the total number of members in the House of the People (Lok Sabha) or the State Assembly, respectively.
- This amendment aimed to control the size of the Council of Ministers and prevent it from becoming excessively large.
Permanent Executives - Bureaucracy in India
1. The Role of the Bureaucracy:
- The executive organ of the government consists of the Prime Minister, ministers, and the bureaucracy, also known as the civil service.
- Bureaucracy assists ministers in policy formulation and implementation.
- In a democracy, elected representatives and ministers are in charge of the government, while the administration is under their control and supervision.
2. Accountability and Neutrality:
- In a parliamentary system, the legislature exercises control over the administration.
- Administrative officers must align with legislative policies.
- Bureaucracy is expected to be politically neutral and refrain from taking political positions on policy matters.
- It's the bureaucracy's responsibility to faithfully participate in policy drafting and implementation, even when governments change.
3. Complexity of the Indian Bureaucracy:
- The Indian bureaucracy is intricate and includes All-India services, State services, local government employees, and staff managing public sector undertakings.
- Recruitment is based on merit and conducted by the Union Public Service Commission (UPSC) at the national level and State Public Service Commissions at the state level.
- The Constitution ensures representation of all sections of society, including reserved positions for Dalits, Adivasis, women, and other backward classes.
4. Centralization of Administrative Control:
- IAS (Indian Administrative Service) and IPS (Indian Police Service) officers, appointed by the UPSC, play a significant role in state administration.
- IAS and IPS officers work under the state government's supervision but are appointed and disciplined by the central government.
- This setup strengthens central government control over state administration.
5. Bureaucracy as an Instrument of Welfare:
- Bureaucracy is instrumental in implementing government welfare policies.
- Concerns exist about bureaucracy's insensitivity to citizens' needs and expectations.
- Effective control of bureaucracy by democratically elected governments is essential to address these issues.
6. Balancing Act:
- Striking a balance is crucial: too much political interference can turn the bureaucracy into a tool of politicians.
- Challenges include protecting civil servants from undue political interference and ensuring bureaucratic accountability to citizens.
7. Right to Information (RTI):
- Measures like the Right to Information are expected to make the bureaucracy more responsive and accountable to citizens
Chapter 5 - The Legislature
Why Do We Need a Parliament?
- Function Beyond Lawmaking
- Legislature's multifaceted role.
- Central to democratic political processes.
- Encompasses actions like protests, demonstrations, and cooperation.
- Essential for Genuine Democracy
- Indispensable for genuine democracy.
- Ensures representation, efficiency, and effectiveness.
- Accountability and Representative Democracy
- Parliament's role in holding representatives accountable.
- Basis of representative democracy.
- Parliament vs. Executive
- Decline of legislatures in favor of executives in democracies.
- Indian context: Cabinet's dominant role.
- Democratic Potential of Parliament
- Recognized as a democratic and open forum.
- High representativeness.
- Power to choose and dismiss the government.
II. Why Do We Need Two Houses of Parliament?
- Bicameral Nature of Indian Parliament
- Definition of Parliament.
- The Council of States (Rajya Sabha) and the House of the People (Lok Sabha).
- States' Legislative Options
- Choice between unicameral and bicameral legislatures for Indian States.
- Current status: Six States with bicameral legislatures.
- Benefits of Bicameral Legislature
- Representation for diverse sections and regions.
- Double-check mechanism for decisions.
- Reconsideration of bills and policies in the other house.
- Ensuring Prudent Decision-Making
- Prevents hasty decisions.
- Promotes thorough discussion and reconsideration.
Why Do we need two houses of a Parliament ?
- Parliament Definition
- Refers to the national legislature.
- State equivalent is called State legislature.
- Bicameral Legislature
- A legislature with two houses.
- In India, Parliament is bicameral, consisting of the Rajya Sabha (Council of States) and the Lok Sabha (House of the People).
- Unicameral Legislature
- A legislature with one house.
- States in India have the option to have either a unicameral or bicameral legislature.
- Currently, six States in India have a bicameral legislature.
- Reasons for Bicameral Legislature Representation
- Ensures representation of all sections of society.
- Gives representation to all geographical regions or parts of the country, especially in countries with large size and much diversity. b.
- Allows every decision to be reconsidered.
- Every bill and policy is discussed twice, once in each house, providing a double check on every matter.
- If one house makes a hasty decision, the other house can discuss and reconsider it.
Reconsideration of Decisions
Bicameralism in Germany
- Legislature Structure
- Germany has a bicameral legislature consisting of the Federal Assembly (Bundestag) and the Federal Council (Bundesrat).
- Federal Assembly (Bundestag)
- Elected by a complex system combining direct and proportional representation.
- Elected for a period of four years.
- Federal Council (Bundesrat)
- Represents the 16 federal states of Germany.
- Has 69 seats, divided among states based on a range of populations.
- Members are generally state-level ministers and are appointed, not elected, by the governments of the federal states.
- Members from one state have to vote as a bloc as per the instructions of the state governments.
- Sometimes, due to coalition government at the state level, members may fail to reach an agreement and may have to abstain.
- Voting and Legislation
- The Bundesrat does not vote on all legislative initiatives.
- Policy areas on which the federal states have concurrent powers and are responsible for federal regulations must be passed by the Bundesrat.
- It can veto such legislation.
Parliament Functions
Legislative Function
- Enacts legislations for the country.
- Major bills require Cabinet approval.
- Members other than ministers can introduce bills, but government support is crucial for passage.
Control of Executive and Accountability
- Ensures the executive remains responsible to the electorate.
Financial Function
- Controls taxation and government expenditure.
- Lok Sabha approval is required for any new tax.
Representation
- Represents divergent views from different groups from different parts of the country.
Debating Function
- Serves as the highest forum of debate in the country.
- Allows for comprehensive analysis of national issues.
Constituent Function
- Has the power to enact changes to the Constitution.
- Requires special majority of both Houses for constitutional amendments.
Electoral Functions
- Elects the President and Vice President of India.
Judicial Functions
- Considers proposals for removal of President, Vice-President, and Judges of High Courts and Supreme Court.
Rajya Sabha
- Basis of Representation
- Represents the States of India.
- Indirectly elected body; members of State Legislative Assembly elect the members of the Rajya Sabha.
- Principles of Representation a. Symmetrical Representation
- Equal representation to all parts of the country.
- Example: USA Senate
- Representation according to population.
- Example: India → Adopted by the Rajya Sabha; larger populations get more representatives.
b. Proportional Representation
- Comparison with American System
- Equality of representation would lead to discrepancies in representation between states with different populations.
- Indian system allocates seats proportionally to prevent discrepancies.
- Term and Election
- Members are elected for a term of six years and can be re-elected.
- One-third of the members complete their term every two years.
- The Rajya Sabha is never fully dissolved; it is the permanent House of the Parliament.
- Advantage of Permanent House
- Can conduct urgent business even when the Lok Sabha is dissolved.
- Nominated Members
- Twelve nominated members by the President.
- Nominated from persons excelling in literature, science, art, and social service.
Lok Sabha
- Election and Representation
- The Lok Sabha and the State Legislative Assemblies are directly elected by the people.
- The country is divided into territorial constituencies of roughly equal population for the purpose of election.
- One representative is elected from each constituency through universal adult suffrage.
- Currently, there are 543 constituencies, a number unchanged since the 1971 census.
- Term Duration
- The Lok Sabha is elected for a maximum period of five years.
- Dissolution
- The Lok Sabha can be dissolved before the completion of five years if: a. No party or coalition can form the government. b. The Prime Minister advises the President to dissolve the Lok Sabha and hold fresh elections.
Difference between Powers of Lok Sabha and Rajya Sabha
Powers of Rajya Sabha
- Special Powers
- Provides representation to the States and protects their powers.
- Consent and approval of the Rajya Sabha are required for any matter affecting the States.
- Approval is necessary to remove a matter from the State list to either the Union List or Concurrent List.
- Limitations
- Cannot initiate, reject, or amend money bills.
- Can criticize the government but cannot remove it.The Council of Ministers is responsible to the Lok Sabha and not Rajya Sabha.
- Reason for Limitations
- Elected by the MLAs and not directly by the people.
- Directly elected representatives should have the crucial powers in a democracy.
- Co-equal Powers with Lok Sabha
- Co-equal in passing of non-money bills, constitutional amendments, impeaching the President, and removing the Vice President.
How does Parliament Make Law
- Initiation
- Debate and Consideration: Before introduction, there may be extensive debate and consideration regarding the necessity and implications of the bill.
- Political and Public Influence: Political parties, interest groups, media, and citizens’ forums may influence the initiation of a bill.
- Cabinet Approval: The Cabinet considers various factors including political implications and coalition dynamics before approving the policy behind the legislation.
- Drafting
- Ministerial Responsibility: The concerned ministry drafts the bill, considering the subject matter and implications.
- Introduction in Parliament: A bill may be introduced in either the Lok Sabha or the Rajya Sabha, usually by the minister responsible for the subject.
- Committee Discussions
- Detailed Examination: Committees conduct a large part of the discussion on the bills, examining various aspects and implications.
- Recommendations: The committees send their recommendations to the House, influencing the subsequent stages of the law-making process.
- Voting and Passage
- Bicameral Approval: A bill must be passed by both Houses for enactment, undergoing the same procedure in each House.
- Resolution of Disagreements: Disagreements between the two Houses are attempted to be resolved through a Joint Session of Parliament, with decisions typically favoring the Lok Sabha.
- Special Provisions for Money Bills
- Limited Rajya Sabha Role: The Rajya Sabha can suggest changes but cannot reject a money bill. If no action is taken within 14 days, the bill is deemed to have been passed.
- Lok Sabha Dominance: Amendments suggested by the Rajya Sabha may or may not be accepted by the Lok Sabha.
- Presidential Assent
- Enactment into Law: Once passed by both Houses, a bill is sent to the President for assent, which results in the enactment of a bill into a law.
How does Parliament Make Law (Money Bill)
Article 109 Special procedure in respect of Money Bills.—(1) A Money Bill shall not be introduced in the Council of States
- Introduction and Passage
- Lok Sabha Dominance: Money bills can only be introduced in the Lok Sabha and primarily get passed there before being sent to the Rajya Sabha.
- Rajya Sabha's Role
- Limited Powers: The Rajya Sabha can suggest changes but cannot reject a money bill. It has a limited role in the approval and amendment of money bills.
- Time Constraint: If the Rajya Sabha takes no action within 14 days, the bill is deemed to have been passed.
- Amendments
- Discretion of Lok Sabha: Amendments to the money bill, suggested by the Rajya Sabha, may or may not be accepted by the Lok Sabha, emphasizing the dominance of the Lok Sabha in matters related to money bills.
Parliamentary Control Over the Executive
Foundation of Control
- Parliamentary Democracy: The executive is drawn from the majority party or coalition in the Lok Sabha, necessitating a balance to avoid Cabinet dictatorship.
- Parliamentary Privilege: Members have the freedom to work effectively and fearlessly, with no action taken against them for their statements in the legislature.
Effectiveness of Control
- Member Participation and Willingness to Compromise: Effective control requires adequate time, interest in discussion, active participation, and a compromise between the government and the opposition.
- Challenges to Control: The decline in sessions and debate time, absence of quorum, and boycotts by opposition members have hindered the Parliament's ability to control the executive effectively.
Importance of Vigilance
- Avoidance of Executive Excesses: Active and vigilant Parliament is crucial to keep a check on the executive and prevent arbitrary and unlimited exercise of power.
- Representation of People's Interests: The privileges and instruments of control enable the Parliament to represent the people and ensure the executive's accountability and responsiveness to the people's needs.
Instruments of Parliamentary Control Over the Executive
- Deliberation and Discussion 1.1 Purpose: It allows members to scrutinise the executive's policy direction and implementation methods. 1.2 Methods: Members deliberate on bills, participate in general discussions, and raise issues during the Question Hour, Zero Hour, and other special discussions. 1.3 Effectiveness: It is considered one of the most effective methods, especially during the Question Hour, where ministers have to respond to critical inquiries raised by the members, allowing them to represent the problems of their constituencies and criticise the government.
- Approval or Refusal of Laws 2.1 Purpose: It ensures that a bill can only become a law with the approval of the Parliament. 2.2 Process: It involves intense bargaining and negotiations, especially when the government lacks a majority in the Rajya Sabha, forcing the government to make substantial concessions to gain approval. 2.3 Impact: It reflects the power dynamics and the balance between the ruling party or coalition and the opposition, affecting the enactment of several bills.
- Financial Control 3.1 Purpose: It allows the legislature to exercise control over the government's financial resources and policies through budget approval. 3.2 Mechanism: The Parliament discusses the allocation and utilization of funds, scrutinises financial propriety, and examines government policies reflected in the budget based on reports from the Comptroller and Auditor General and Public Accounts committees. 3.3 Significance: It ensures that the government is accountable for its financial actions and that its policies align with the nation's needs and the legislature's expectations.
- No Confidence Motion 4.1 Purpose: It serves as a powerful tool to ensure executive accountability and can lead to the government's resignation if it loses the confidence of the Lok Sabha. 4.2 Application: It has been instrumental in situations where governments failed to retain the support of their coalition partners, leading to a lack of confidence in the Lok Sabha. 4.3 Implications: It underscores the importance of maintaining support within the coalition and reflects the political dynamics within the Parliament.
- Walkout 5.1 Purpose: It is a measure often adopted by the opposition to register their protest against the government. 5.2 Usage: It is frequently used as a symbolic gesture to showcase dissent and disagreement with the government's policies or actions. 5.3 Impact: While it results in the loss of legislative time, it serves as a political technique to gain concessions from the government and to force executive accountability by drawing attention to specific issues or grievances.
Role of Committees in Parliament
In-depth Study and Scrutiny
1.1 Purpose: Committees are responsible for conducting an in-depth study of issues under consideration for law-making, requiring more attention and time.
1.2 Process: They scrutinize various aspects related to proposed laws, demands for grants by ministries, and expenditure incurred by various departments.
1.3 Impact: They ensure that every aspect of a proposed law is meticulously examined, contributing to the formulation of comprehensive and effective laws.
Supervision and Oversight
2.1 Purpose: Standing Committees supervise the work, budget, and expenditure of various departments and scrutinize bills related to the respective department.
2.2 Structure: India has over twenty departmentally related standing committees, each overseeing specific departments.
2.3 Impact: They maintain a check on the functioning of various departments, ensuring accountability and adherence to prescribed norms and standards.
Investigation and Inquiry
3.1 Purpose: Committees, especially Joint Parliamentary Committees (JPCs), investigate financial irregularities and cases of corruption.
3.2 Structure: JPCs are composed of members from both Houses and can be set up to discuss a particular bill or investigate specific issues.
3.3 Impact: They play a pivotal role in maintaining transparency and integrity within governmental operations by uncovering and addressing irregularities.
Reducing Parliamentary Burden
4.1 Purpose: The committee system reduces the burden on the Parliament by handling the detailed scrutiny of bills and issues.
4.2 Process: Many important bills are referred to committees, and the Parliament usually approves the work done in the committees with occasional alterations.
4.3 Impact: It streamlines the legislative process, allowing the Parliament to focus on key aspects and make informed decisions based on committee recommendations.
Enhancing Legislative Efficiency
5.1 Purpose: By focusing on specific areas, committees enhance the efficiency and effectiveness of the legislative process.
5.2 Process: They delve into the nuances of proposed laws and issues, providing detailed insights and recommendations.
5.3 Impact: They contribute to the development of well-rounded and thoroughly examined laws and policies, reflecting a diverse range of perspectives and expertise.
Parliamentary Regulation
1. Presiding Officer’s Role
1.1 Authority: The presiding officer of the legislature is the final authority in matters of regulating the business of the legislature.
1.2 Responsibility: They ensure that the discussions and debates within the Parliament are conducted in an orderly and meaningful manner.
1.3 Impact: The authority of the presiding officer helps in maintaining the decorum and dignity of the Parliament, allowing it to function smoothly.
Anti-Defection Law
2.1 Definition: Defection occurs when a member remains absent in the House against the party’s instructions, votes contrary to the party’s directive, or voluntarily leaves the party’s membership.
2.2 Enactment: The 52nd amendment act in 1985, known as the anti-defection amendment, was enacted to restrict legislators from defecting to another party post-election. It was subsequently modified by the 91st amendment.
2.3 Consequences: A member proven to have defected loses the membership of the House and is disqualified from holding any political office like ministership.
2.4 Authority: The presiding officer of the House is the authority who takes final decisions on all cases related to defection.
3. Impact of Anti-Defection Law
3.1 Control over Members: The law has given additional powers to the party leadership and the presiding officers of the legislatures over the members.
3.2 Effectiveness: The experience of the past twenty years shows that the anti-defection amendment has not been completely successful in curbing defections.
3.3 Party Discipline: While it has not completely eliminated defections, it has played a role in maintaining party discipline and loyalty among the members
Chapter 6 - The Judiciary
Independence of Judiciary
Independence of the judiciary is a foundational principle ensuring that the judiciary can perform its functions without interference, fear, or favor from the other organs of government, namely the executive and the legislature. It is crucial for maintaining justice and upholding the democratic structure and traditions of the country.
1. Definition and Implications
1.1 Meaning: Independence of judiciary implies that the judiciary must be allowed to perform its functions without any restraint, interference, or influence from the other government organs.
1.2 Accountability: While independent, the judiciary is not arbitrary and remains accountable to the Constitution, democratic traditions, and the people of the country.
2. Constitutional Provisions
2.1 Appointment Process: The Constitution ensures that the legislature is not involved in the appointment of judges, preventing party politics from influencing appointments.
2.2 Criteria for Appointment: Appointments to the judiciary are based on legal experience and knowledge, not on political opinions or loyalties.
2.3 Fixed Tenure: Judges hold office until the age of retirement, providing them with security of tenure, which is crucial for functioning without fear or favor.
2.4 Removal Procedure: The Constitution prescribes a stringent and difficult procedure for the removal of judges, further ensuring security of office.
3. Financial Independence
3.1 Salaries and Allowances: The judiciary is not financially dependent on the executive or the legislature as the Constitution provides that the salaries and allowances of the judges are not subject to the approval of the legislature.They are from Consolidated fund of India
4. Protection from Criticism
4.1 Immunity: The actions and decisions of judges are immune from personal criticisms, and Parliament cannot discuss the conduct of the judges except during removal proceedings.
4.2 Contempt of Court: The judiciary has the authority to penalize those found guilty of contempt of court, protecting judges from unfair criticism and maintaining the dignity of the judiciary.
Appointment and Removal of Judges
1. Appointment of Judges
1.1 Political Influence: The appointment of judges is intertwined with political processes, influenced by the Council of Ministers, Governors, Chief Ministers, and the Chief Justice of India (CJI).
1.2 Convention for CJI Appointment: Traditionally, the senior-most judge of the Supreme Court is appointed as the CJI, but this convention was broken in 1973 and 1975.In 1973 A. N. Ray was appointed as CJI superseding three senior Judges. Again, Justice M.H. Beg was appointed superseding Justice H.R. Khanna (1975).
1.3 Consultation Process: Other judges are appointed by the President after consulting the CJI. The Supreme Court has established the principle of collegiality, recommending that the CJI consult with four senior-most judges for appointments.
1.4 Role of Executive and Legislature: In appointments, the executive plays a crucial role, while the legislature holds powers of removal, ensuring a balance of power and independence of the judiciary.
2. Removal of Judges
2.1 Grounds for Removal: Judges can only be removed on the ground of proven misbehaviour or incapacity.
2.2 Procedure for Removal: A motion containing the charges against the judge must be approved by a special majority in both Houses of Parliament, making the removal of a judge a very difficult procedure.
2.3 Case Study: Justice V. Ramaswami: In 1991, a motion to remove Justice V. Ramaswami was signed due to accusations of misappropriating funds. Despite being found guilty by an inquiry commission, he survived the parliamentary motion recommending removal as it did not have the support of the majority of the total strength of the House.
3. Implications
3.1 Interpretation of Constitution: The political philosophy and views of the judges impact how the Constitution is interpreted and the fate of legislations enacted.
3.2 Balance and Independence: The distinct roles of the executive and the legislature in the appointment and removal processes ensure the balance of power and uphold the independence of the judiciary.
3.3 Accountability and Scrutiny: The stringent procedures for appointment and removal ensure that judges are accountable and their actions are subject to scrutiny, maintaining the integrity of the judicial system.
Structure of Judiciary
The Constitution of India provides for a single integrated judicialsystem. The structure of
the judiciary in India is pyramidal with the Supreme Court at the top, High Courts below them and district and subordinate courts at the lowest level. The lower courts function under the direct superintendence of the higher courts.
Jurisdiction of Judiciary
Jurisdiction of Supreme Court
The Supreme Court of India, while powerful, operates within the constraints of the Constitution. Its roles and responsibilities are constitutionally defined, encompassing specific jurisdictions or scopes of power.
1. Original Jurisdiction
- Definition: Original jurisdiction refers to cases that the Supreme Court can directly consider without them going to the lower courts first.
- Role as Umpire: It acts as an umpire in disputes regarding federal matters between the Union and the States, and among the States themselves, interpreting the powers of Union and State government as laid down in the Constitution.
- Exclusivity: It is the sole authority to deal with such cases, excluding High Courts and lower courts from dealing with them.
2. Writ Jurisdiction
- Protection of Rights: Individuals can directly approach the Supreme Court for remedy if their fundamental rights are violated.
- Issuance of Writs: The Court can issue special orders or writs, directing the executive to act or not to act in a specific way.
- Choice of Court: Violated individuals have the choice of approaching either the High Court or the Supreme Court directly.
3. Appellate Jurisdiction
- Highest Court of Appeal: The Supreme Court is the final appellate authority against the decisions of the High Court.
- Certification and Admission: Appeals require certification from the High Court that the case involves serious interpretation of law or Constitution, and the Supreme Court holds the power to decide whether to admit appeals.
- Reconsideration and Interpretation: It reconsiders cases and the legal issues involved, providing new interpretations of the law or the Constitution if necessary.
4. Advisory Jurisdiction
- Presidential Reference: The President can refer matters of public importance or those involving interpretation of the Constitution to the Supreme Court for advice.
- Non-binding Advice: The Supreme Court is not obligated to give advice, and the President is not bound to accept it.
- Utility: It allows the government to seek legal opinion before taking action, preventing unnecessary litigations and enabling suitable changes in actions or legislations based on the Supreme Court’s advice.
5. Enforceability and Review
- Binding Decisions: Decisions made by the Supreme Court are binding on all other courts within India, and its orders are enforceable throughout the country.
- Review and Contempt: The Supreme Court is not bound by its decisions and can review them. It also decides cases of contempt of the Supreme Court.
Articles
Article 137 → the Supreme Court shall have power to review any judgment pronounced or order made by it.
Article 144 → All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court
Judicial Activism
Judicial Activism and Public Interest Litigation (PIL)
Judicial activism in India has been a significant development, making the judiciary more accessible and responsive to the public. It has primarily manifested through Public Interest Litigation (PIL) or Social Action Litigation (SAL), allowing the court to address issues of public concern and ensuring the rights of the marginalized and deprived sections of society.
Emergence of PIL:
- Traditionally, only individuals who were personally aggrieved could approach the courts.
- This concept changed around 1979 when the court decided to hear cases filed by public-spirited citizens or organizations on behalf of aggrieved persons, marking the inception of PILs.
- The Supreme Court proactively took up cases related to the rights of prisoners and other issues in the public interest, based on newspaper reports and postal complaints, expanding the concept of rights to include clean air, unpolluted water, and decent living.
Impact of Judicial Activism:
- Democratization of Judiciary: It has democratized the judicial system by allowing not just individuals but also groups to access the courts.
- Executive Accountability: It has enforced accountability upon the executive branch of the government.
- Electoral Reforms: The court mandated candidates contesting elections to disclose their assets, income, and educational qualifications, promoting transparency in the electoral system.
Challenges and Criticisms:
- Overburdening of Courts: The influx of PILs has led to an overburdening of the courts.
- Blurring of Distinctions: Judicial activism has blurred the lines between the judiciary and the other branches of government, with the court involving itself in matters typically handled by the administration under the supervision of the legislatures.
- Strain on Democratic Principles: Some argue that judicial activism may be creating strains on the principle of each organ of government respecting the powers and jurisdiction of the others.
Case Studies:
- Hussainara Khatoon vs. Bihar (1979): This case emerged from newspaper reports about undertrial prisoners in Bihar who had spent more time in jail than they would have if convicted. It became one of the early PILs.
- Sunil Batra vs. Delhi Administration (1980): A prison inmate from Tihar jail sent a scribbled piece of paper to Justice Krishna Iyer of the Supreme Court narrating physical torture of prisoners. This case also became a pioneer of public interest litigation
Judiciary & Rights
Judiciary and Rights
The judiciary plays a pivotal role in safeguarding the rights of individuals and interpreting the Constitution. The Constitution empowers the judiciary, particularly the Supreme Court, to protect fundamental rights and review laws for their constitutionality.
Protection of Rights:
- The Constitution allows the Supreme Court and the High Courts to restore fundamental rights by issuing various writs like Habeas Corpus, Mandamus, etc. (Article 32 and Article 226).
- The judiciary can declare a law unconstitutional and non-operational if it violates fundamental rights (Article 13).
Judicial Review:
- The power of judicial review is perhaps the most crucial power of the Supreme Court and High Courts. It allows the judiciary to examine the constitutionality of any law and declare it unconstitutional if it is inconsistent with the Constitution.
- Although the term "judicial review" is not explicitly mentioned in the Constitution, the presence of a written constitution and the power to strike down laws inconsistent with fundamental rights implicitly endow the judiciary with this power.
- The review power extends to laws related to federal relations and those passed by State legislatures, ensuring a check on the distribution of powers and federal structure.
Public Interest Litigation (PIL) and Judicial Activism:
- The practice of entertaining PILs has enhanced the judiciary's role in protecting citizens' rights, allowing the court to address violations of rights even when the aggrieved parties did not approach the court directly.
- Through PILs and judicial activism, the judiciary has addressed various issues such as inhuman working conditions, sexual exploitation of children, and police atrocities, making rights more meaningful for the poor and disadvantaged sections.
Impact on Rights and Constitution:
- The combination of writ powers, review power, and the ability to entertain PILs make the judiciary exceptionally powerful in interpreting the Constitution and the laws passed by the legislature.
- Many believe that these features enable the judiciary to effectively protect the Constitution and the rights of citizens, ensuring that rights are not just theoretical but are enforceable and meaningful for every individual, especially for those from disadvantaged sections.
Judiciary & Parliament
Judiciary and Parliament
The Indian Constitution delineates a clear division of powers among the three organs of government: the Parliament, the Executive, and the Judiciary. However, the relationship between the Judiciary and the Parliament has been marked by recurrent conflicts and controversies, reflecting the delicate balance of power and the principle of checks and balances embedded in the Constitution.
Areas of Conflict:
- Right to Property: The initial conflicts revolved around the Parliament’s power to restrict the right to property for implementing land reforms. The Judiciary asserted that fundamental rights cannot be abridged, even through constitutional amendments, leading to a tussle over the scope of right to private property and the Parliament’s power to curtail, abridge, or abrogate fundamental rights.
- Amendment of the Constitution: The Parliament and the Judiciary have had differences over the scope of the Parliament’s power to amend the Constitution and whether such amendments can infringe upon fundamental rights.
- Directive Principles: The conflicts also extended to whether the Parliament can make laws that abridge fundamental rights while enforcing directive principles.
Kesavananda Bharati Case:
- In 1973, the Supreme Court, in the Kesavananda Bharati case, ruled that the Constitution has a basic structure that cannot be violated, even by constitutional amendments by the Parliament.
- The Court declared that the right to property was not part of the basic structure and could be abridged.
- The Court reserved the right to decide whether various matters are part of the basic structure of the Constitution, exemplifying the judiciary's power to interpret the Constitution.
Unresolved Issues:
- Parliamentary Privileges: The unresolved issues include whether the judiciary can intervene in and regulate the functioning of the legislatures, especially in matters of parliamentary privileges and disciplinary actions against members of the legislature.
- Discussion on Conduct of Judges: The Constitution prohibits the discussion of the conduct of judges in the Parliament, but there have been instances where aspersions have been cast on the judiciary by the legislatures, and vice versa
Chapter 7 - Federalism
Introduction to Federalism
What is Federalism?
Federalism is a principle of government that has evolved differently in different situations, such as in the United States, Germany, and India. However, it encompasses a few key ideas and concepts that are universally associated with it.
Key Concepts of Federalism:
- Dual Polities: Federalism accommodates two sets of polities, one at the regional level and the other at the national level, each autonomous in its sphere.
- Dual Identities: People have two sets of identities and loyalties, belonging to both the region and the nation, e.g., being Gujaratis or Jharkhandis as well as Indians.
- Distinct Powers and Responsibilities: Each level of the polity has distinct powers, responsibilities, and a separate system of government, generally spelt out in a written constitution.
- Supreme Constitution: The constitution is considered supreme and is the source of power for both sets of government, detailing the dual system of government.
- Division of Subjects: Certain subjects of national concern are the responsibility of the central government, while regional or local matters are the responsibility of the state government.
- Independent Judiciary: To prevent conflicts between the center and the state, there is an independent judiciary to settle disputes regarding the division of power.
Importance of Federalism:
- Unity in Diversity: India, with its continental proportions and immense diversities in languages, religions, and cultures, has remained united, attributing this unity to the federal structure of governance adopted through the Constitution.
- Accommodating Diversities: Federalism serves as an institutional mechanism to accommodate diversities and allows for shared participation in a common history, especially in the fight for independence.
- Single Citizenship: Unlike some federal countries, India has only a single citizenship, emphasizing a unified national identity along with regional identities.
Challenges and Considerations:
- Cultural and Political Dynamics: The actual working of a federation is determined by real politics, culture, ideology, and history, and a culture of trust, cooperation, mutual respect, and restraint is crucial for smooth functioning.
- Dominance and Resentment: The dominance of any single unit, state, linguistic group, or ideology can generate deep resentment and lead to demands for secession or even civil wars.
- Role of Political Parties: Political parties play a significant role in determining the way a constitution would work, impacting the balance and harmony within the federation.
Federalism in West Indies and Nigeria
Aspect | West Indies | Nigeria |
Formation | Formed in 1958 as a federation. | Formed as a federation in 1950. |
Major Groups | Multiple islands with diverse cultures. | Three major ethnic groups: Yoruba, Ibo, and Hausa-Fulani. |
Central Authority | Weak central government. | Central government with regional controls. |
Economic Structure | Each unit was economically independent. | Regions had control, but conflicts arose over oil resources. |
Dissolution/Changes | Dissolved in 1962 due to internal conflicts. | Faced military regimes due to internal conflicts. |
Post-Dissolution Structure | Formed Caribbean Community in 1973 with joint authorities. | Restored democracy in 1999, but conflicts continue. |
Current Challenges | Struggle for unity among independent islands. | Ongoing religious, ethnic, and economic conflicts, especially over oil resources. |
Legal Structure | Common legislature and supreme court. | Had joint control over police; states prohibited from having civil police in 1979 constitution. |
Federalism in Indian Constitution
Art 1 : India, that is Bharat, shall be a Union of States
Art 2 :The States and the territories thereof shall be as specified in the First Schedule
- Recognition of Diversity:
The Constitution recognizes the immense diversity in languages and regions and provides a framework where each region can govern itself, respecting the linguistic and regional diversity.
- Union of States:
The Constitution describes India as a "Union of States," emphasizing unity and the cooperative relationship between the states and the center, rather than a strict federal structure.
- Absence of the Term "Federation":
Interestingly, the term "federation" is not mentioned in the Constitution. This omission underscores the unique approach to federalism adopted by India, focusing on unity and cooperative federalism.
- Cooperative Federalism:
The Constitution envisages a cooperative relationship between the center and the states where both levels of government operate within their respective domains but work together for the national interest.
- Distribution of Powers:
The Constitution clearly delineates the powers and responsibilities of the center and the states, ensuring a balance of power and preventing encroachment into each other's domains.
- Adaptation to Changes:
The Indian federal structure has been dynamic and adaptable, accommodating changes and reforms to address the evolving needs and challenges of the diverse regions.
- Emphasis on Unity:
While acknowledging diversity, the Constitution places a strong emphasis on national unity and integrity, ensuring that regional interests do not compromise the overall national interest.
- Post-Partition Scenario:
After the partition of India, the Constituent Assembly aimed to frame a government that would uphold the principles of unity and cooperation between the center and the states
Division of Power in India
Division of Powers:
List | Description | Subjects Included | Legislative Powers |
Union List | Subjects of national importance. | Defense, Foreign Affairs, Atomic Energy, etc. | Exclusive to the Union Government. |
State List | Subjects of regional and local importance. | Police, Public Health, Agriculture, etc. | Exclusive to the State Governments. |
Concurrent List | Subjects requiring uniformity across the country. | Bankruptcy, Marriage and Divorce, etc. | Shared between the Union and State Governments. |
Residual Powers | Any subject not mentioned in any of the lists. | Not Specified | Exclusive to the Union Government. |
Economic and Financial Powers:
- Centralization of Financial Powers:
The Constitution centralizes economic and financial powers in the hands of the Union Government, providing it with major revenue sources like income tax, corporate tax, customs duties, etc.
- State Finances:
States have responsibilities in crucial areas like health, education, and public services but have limited revenue sources like sales tax (now GST), excise duties on alcohol, etc.
- Grants and Loans:
To manage the financial constraints, states receive grants and loans from the Central Government and share in central taxes to fulfill their responsibilities effectively.
- Finance Commission:
The Finance Commission is constituted every five years to recommend the distribution of tax revenues between the center and the states and to address the financial needs and requirements of the states.
Federalism with a Strong Central Government in India
1. Background
Objective: To Accommodate diversities and prevent disintegration in a diverse nation.
Need of Strong Central Government in India: Address socio-economic problems and manage continental dimensions and diversities post-independence.
2. Objective of Strong Centre
Address Socio-Economic Issues: Manage problems like poverty, illiteracy, and wealth inequalities.
Planning & Coordination: Necessitate alignment between the central and state governments for cohesive national development.
3. Constitutional Provisions for a Strong Centre
3.1 State Existence & Territory
Article 3: Empowerment of Parliament to alter state boundaries and names with state legislature’s view.
3.2 Emergency Provisions
Centralization of powers during emergencies, with Parliament acquiring extensive legislative capacities.
3.3 Financial Powers
Central control over major revenue sources, making states reliant on central aids.
Centralized economic decision-making through planning.
3.4 Governor's Powers
Powers to recommend dismissal of State government and reserve bills for President's assent.
3.5 Legislation on State List
Central legislative interventions on state subjects, ratified by the Rajya Sabha.
3.6 Executive Powers
Article 257 (1): “The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.”
There may be occasions when the situation may demand that the central government needs to legislate on matters from the State list. This is possible if the move is ratified by the Rajya Sabha. The Constitution clearly states that executive powers of the centre are superior to the executive powers of the States. Furthermore, the central government may choose to give instructions to the State government
3.7 Integrated Administrative System
Central control over all-India services serving in state administration.
3.8 Protection during Martial Law
Articles 33 and 34: Strengthening of union government powers and the formation of the Armed Forces Special Powers Act.
Conflicts in India’s Federal System
Introduction
Context: Constitution recognizes regional identities but vests strong powers in the Centre.
Conflict Origin: The states’ demand for a greater role in governance and more autonomy.
Centre-State Relations
1. Nature
Framework: Constitution is the skeleton; politics is the flesh and blood.
Influence: Political processes significantly shape federalism.
2. Historical Context
1950s-1960s: Foundation under Nehru and Congress dominance. Period of normal relations and optimism.
Mid-1960s: Rise of opposition in states and discussions about autonomy.
1990s Onwards: Era of coalition politics leading to more mature federalism.
Demands for Autonomy
1. Redistribution of Powers
Objective: States seek more significant and diverse powers.
Proponents: Various states and political entities like DMK, Akali Dal, CPI-M.
2. Financial Autonomy
Objective: Independent revenue sources and control over resources.
Highlight: 1977 Document by Left Front Government in West Bengal.
3. Administrative Powers
Objective: States desire more administrative autonomy
4. Cultural and Linguistic Autonomy
Objective: Opposition to linguistic dominance and promotion of regional cultures.
Example: 1960s agitations against Hindi imposition
Role of Governors and President’s Rule in India
Introduction
Context: Controversial role due to perceived interference by Governors in State governments and central imposition through President’s Rule.
Governor’s Role and Controversies
1. Appointment
Appointees: Retired officers, civil servants, or politicians.
By: Central government.
Issue: Non-elected nature raises contentions.
2. Alleged Partisanship
Perception: Governors act as agents of the central government.
Recommendation: Sarkaria Commission, 1983:1988 advocates for non-partisan appointments.
Complications: Arise especially when centre and State have different ruling parties.
President’s Rule
1. Basis
Article 356: Invoked when State government cannot function constitutionally.
Result: Central government takeover.
2. Procedure & Limitation
Ratification: By Parliament.
Extension: Can be up to three years.
Governor’s Role: Can recommend dismissal of State government.
3. Controversies & Conflicts
Usage: Increased post-1967 with contrasting central and State governments.
Legal Scrutiny: Constitutional validity can be examined by the judiciary.
Cases: States like Kerala, Andhra Pradesh, and Jammu and Kashmir have experienced impositions around 1980’s
Demands for New States
The federal structure of India has experienced strains due to demands for the formation of new states, driven by linguistic, cultural, administrative, and economic reasons.
Historical Perspective:
Linguistic States: The demand for linguistic states arose after India’s independence, stemming from the national movement’s focus on linguistic and cultural identity.
- States Reorganisation Commission (1953): Recommended the creation of linguistic states.
- 1956 Reorganization: Marked the inception of linguistic states.
Formation of States:
Gujarat and Maharashtra (1960): Created as separate states.
Punjab and Haryana (1966): Separated from each other.
North Eastern States: Manipur, Tripura, Meghalaya, Mizoram, and Arunachal Pradesh were created due to reorganization.
2000 Reorganization:
- Chhattisgarh was carved out of Madhya Pradesh.
- Uttarakhand was carved out of Uttar Pradesh.
- Jharkhand was carved out of Bihar.
Telangana (2014): Formed by dividing Andhra Pradesh.
Ongoing Demands:
Regions like Vidarbha in Maharashtra continue to demand separate statehood.
Interstate Conflicts
Interstate conflicts arise due to disputes over borders and sharing of resources like river waters, with political implications often making them difficult to resolve.
Border Disputes:
Belgaum: A contentious area between Maharashtra and Karnataka.
Manipur and Nagaland: Have longstanding border disputes.
Chandigarh: Serves as the capital for both Punjab and Haryana, leading to disputes.Rajiv Gandhi said that Chandigarh would be handed over to Punjab but it still hasn't been done.
River Water Disputes:
Dispute
Cauvery Water Dispute: A significant point of contention between Tamil Nadu and Karnataka.
Narmada Water Dispute: Involves Gujarat, Madhya Pradesh, and Maharashtra.
Resolution Mechanisms:
Judiciary: Acts as the arbitration mechanism for legal disputes but political implications often require negotiations and mutual understanding.
River Water Tribunals: Instituted to settle water disputes but disputes often escalate to the Supreme Court.
Implications:
Sentimental and Practical Concerns: Border disputes evoke strong sentiments, while disputes over river waters have serious practical implications related to drinking water and agriculture.
Cooperative Federalism: Disputes over resources test the patience and cooperative spirit of the states within the federal structure of India.
Special Provisions and Asymmetric Federalism
India’s federal arrangement manifests intelligent and balanced design through unique provisions for different states, considering the diverse and varying requirements and circumstances of each state.
Asymmetric Federalism:
Representation in Rajya Sabha: It is asymmetrical, providing a minimum representation to smaller states while ensuring that larger states get more representation.
Special Provisions for States: Various states, particularly in the North-East, have special provisions due to their distinct history, culture, and indigenous tribal population.
Special Provisions for States:
North-Eastern States: States like Assam, Nagaland, Arunachal Pradesh, Mizoram have special provisions due to their sizable indigenous tribal populations and unique cultures.
Other States: Special provisions also exist for Himachal Pradesh, Andhra Pradesh, Goa, Gujarat, Maharashtra, Sikkim, and Telangana due to their unique geographical and cultural circumstances.
Special Case : Jammu and Kashmir (J&K):
Background: J&K had the option to join either India or Pakistan or remain independent after India’s independence. The invasion by tribal infiltrators from Pakistan led Maharaja Hari Singh to accede to India.
Article 370: Granted special status and significant autonomy to J&K. It required the concurrence of the state for making laws in matters mentioned in the Union and Concurrent lists, providing greater autonomy compared to other states.
Special Provisions:
- J&K had its constitution and flag.
- No emergency due to internal disturbances could be declared in J&K without the concurrence of the State.
- The Union government could not impose a financial emergency in the State.
- Directive Principles did not apply in J&K.
- Amendments to the Indian Constitution could apply with the concurrence of the government of J&K.
Revocation of Article 370 (2019): The special status under Article 370 has been revoked, and J&K has been bifurcated into two Union Territories – Jammu and Kashmir, and Ladakh, effective from 31 October 2019.
Implications and Challenges:
Alienation and Insurgency: Despite special provisions, parts of the North-Eastern region have experienced alienation and insurgency.
Balancing Autonomy and Integration: The special provisions aimed to balance the need for autonomy with the integration of diverse regions into the national framework
Chapter 8 - Local Government
Case Study
- Geeta Rathore, a local leader from Jamonia Talab Gram Panchayat, Madhya Pradesh, significantly transformed her village by focusing on infrastructure development, women's rights, environmental awareness, afforestation, and water management, illustrating the profound impact of local governance on community development. — Panchayati Raj Update, Vol. XI, No. 3, February 2004.
- A Gram Panchayat in Vengaivasal village, Tamil Nadu, successfully contested a land acquisition directive from higher authorities, highlighting the constitutional autonomy and the essential role of local governments in preserving community interests against overarching decisions. — Panchayati Raj Update, Vol. XII, June 2005.
Local Governments and Democracy in India
Introduction:
The transformation in the role and significance of local government institutions, especially after they were accorded constitutional status in 1993
Essence of Local Government:
Proximity to People: Local governments are the closest administrative units to the people, addressing their day-to-day issues and needs.
Representation of People's Interest: They represent local knowledge and interests, which are crucial for making democratic decisions and for efficient administration.
Cost and Time Efficient: Being close to the people, local governments can resolve issues quickly and with minimum cost.
Impact and Examples:
Geeta Rathore’s Initiative: As a proactive Sarpanch of the Gram Panchayat, she brought about significant change in Jamonia Talab, depicting how local governments can effectively protect and promote local interests.
Vengaivasal Village Efforts: The Gram Panchayat’s relentless efforts to retain its land rights exemplify local government's role in ensuring local autonomy and protecting communal rights.
Democratic Values:
Meaningful Participation: Democracy thrives on the active and committed participation of the citizens in decision-making processes concerning their lives and development.
Accountability: Vibrant local governments ensure purposeful accountability and allow citizens to hold them responsible for their actions or inactions.
Importance in Democracy:
Decentralization of Power: In a democratic setup, tasks which can be performed locally should be delegated to local representatives, allowing local people to have more say in their governance.
Familiarity and Concern: People are more familiar with and concerned about local governments as their actions have a direct bearing on their day-to-day life, compared to state or national governments.
Growth of Local Government in India
Ancient Origins: Self-governing ‘sabhas’ evolved into Panchayats to address village-level issues.
Pre Independence Developments
- Post-1882 Modern Evolution: Initiated by Lord Rippon, local boards were established as elected local government bodies.
- Government of India Act 1919 & 1935: These acts led to the establishment of village panchayats in various provinces, with the Indian National Congress urging for making local bodies more effective due to slow progress in earlier years.
Challenges and Post-Independence Concerns: Nehru & Ambedkar
Partition and Unity Concerns: The turmoil of Partition created a strong inclination towards a unitary structure to maintain national unity and integration.Nehru saw localism as a threat to Nations Unity
Concerns over Rural Factionalism: Dr. B.R. Ambedkar and others expressed concerns over the potential of rural factionalism and caste dynamics undermining local government objectives.
Post Independence Development
Directive Principles: Initially, local government was a non-justiciable, advisory subject under the Directive Principles of State Policy in the constitution
Community Development Programme (1952): Before these amendments, initiatives like the CDP (1952) and the introduction of the three-tier Panchayati Raj system aimed at promoting local governance.
Early Adoption and Dependencies: States like Gujarat and Maharashtra adopted elected local bodies around 1960, but many were financially dependent on state and central governments, and several others delayed establishment.
P.K. Thungon Committee (1989): Recommended constitutional recognition for local government bodies, suggesting amendments for periodic elections, and allocating appropriate functions and funds to them.
73rd and 74th Amendments (1989): These provided constitutional recognition, ensuring periodic elections, allocation of functions, and funding, rejuvenating local governments.
73rd & 74th Amendement
Objectives:
The 73rd and 74th Amendments to the Indian Constitution, enacted in 1993, It came as constitutional enforcement to the suggestions made by the P.K. Thungon Committee in 1989
Provisions:
- 73rd Amendment: This focuses on the establishment and empowerment of rural local governments, known as Panchayati Raj Institutions (PRIs). It mandates a three-tier system of Panchayati Raj in every state, consisting of Panchayats at the village, intermediate, and district levels.
- 74th Amendment: This pertains to urban local governments, or Nagarpalikas, instituting provisions for municipalities in urban areas, ensuring they function as vibrant democratic units of self-governance.
Uniformity and Flexibility:
While the amendments aimed at creating a degree of uniformity in local self-governance structures across the country, they still allowed states the discretion to implement the provisions keeping in view their unique circumstances. This was due to the ‘State subject’ nature of local government, allowing states to frame their own laws on the subject, but within the broad constitutional framework laid out by the amendments.
Impact:
- Decentralization: These amendments marked a pivotal moment in decentralization of power in India, empowering local bodies with constitutional recognition and protection.
- Participation: They mandated reservation for Scheduled Castes, Scheduled Tribes, and women in local bodies, thus promoting inclusivity and wider participation in local governance.
- Autonomy & Development: The amendments facilitated more autonomous and developmental functions at the local level, allowing communities greater control and say in their own development.
73rd Amendment - Rural
1. Three-Tier Structure:
The amendment mandated a three-tier structure consisting of:
- Gram Panchayat at the base level, covering a village or group of villages.
- Mandal or Taluka Panchayats at the intermediary level.
- Zilla Panchayat at the apex, covering the entire rural area of a district. This brought uniformity in the Panchayati Raj structure across states.
2. Gram Sabha:
A Gram Sabha, comprising all adult members registered as voters in the Panchayat area, was constitutionally mandated to enable participatory governance. It serves as a democratic forum for the entire village, and its regular meetings, roles, and functions are decided by state legislation.
3. Elections:
Direct elections at all three levels were mandated, with each body having a term of five years. If dissolved prematurely, re-elections must be held within six months, ensuring the continuity of elected local bodies.
4. Reservations:
- One-third of the positions at all levels are reserved for women.This is within SC, ST & OBC as well
- Reservations for Scheduled Castes and Scheduled Tribes are proportionate to their population.If state finds fit it can reserve seats for OBC as well.
- These reservations also apply to the positions of Chairpersons or ‘Adhyakshas’.
5. Transfer of Subjects:
- The amendment transferred 29 subjects as identified in 11th Schedule, mostly related to local-level development and welfare, from the state list to the panchayats.
- The actual transfer and implementation of these subjects depend on state legislation.
- Article 243G. Powers, authority and responsibilities of Panchayats.—........., the Legislature of a State may, by law, endow the Panchayats with such powers and authority....... ...with respect to—......the matters listed in the Eleventh Schedule.
6. Extension to Adivasi Areas:
In 1996, a separate act extended Panchayat provisions to areas inhabited by Adivasi populations, protecting their rights and traditional customs of managing common resources. It granted more powers to Gram Sabhas in these areas.
7. State Election Commissioners:
The state government is required to appoint an independent State Election Commissioner for conducting elections to Panchayati Raj institutions, ensuring autonomy in the election process.
8. State Finance Commission:
A State Finance Commission is to be appointed once in five years to examine the financial position of local governments and to review the distribution of revenues between state and local governments.
Reflection:
While it’s ironic that decentralization was adopted through a centralized process
74th Amendment - Urban
The 74th Amendment and Urban Local Bodies (Nagarpalikas):
The 74th Amendment is integral in recognizing and establishing urban local bodies or Nagarpalikas, with the amendment extensively mirroring the provisions of the 73rd Amendment but applying them to urban areas.
The Census of India defines an urban area as having:
(i) a minimum population of 5,000
(ii) at least 75 per cent of male working population engaged in non-agricultural occupations
(iii) a density of population of at least 400 persons per sq. km
(iv) As per the 2011 Census, about 31% of India’s population lives in urban areas.
Highlights of the 74th Amendment:
- Application to Urban Areas:
It applies to areas identified as urban by the Census of India, considering factors like minimum population, density, and the proportion of the male working population engaged in non-agricultural occupations.
- Provisions Mirroring the 73rd Amendment:
Like the 73rd Amendment, the 74th Amendment also mandates direct elections, reservations, the appointment of State Election Commission and State Finance Commission, and the transfer of subjects.
- Transfer of Subjects to Urban Local Bodies:
The Constitution mandates the transfer of several functions from the State government to the urban local bodies.
These functions are delineated in the Twelfth Schedule of the Constitution and are primarily concerned with local governance and urban development.
- State Election Commission and State Finance Commission:
The Amendment necessitates the appointment of independent State Election Commissioners for conducting elections and State Finance Commissions for reviewing the financial positions of urban local bodies.
Impact and Significance:
- Empowerment of Urban Local Bodies
- Enhanced Local Governance
- Inclusive Representation
- Balanced Development
Reflective Analysis:
The 74th Amendment is significant in the context of rising urbanization in India. With about 31% of India's population residing in urban areas as per the 2011 Census, urban local governance becomes pivotal.
Implementation of 73rd & 74th Amendment
Post these amendments, all states were mandated to amend their existing laws relating to local bodies to align with the constitutional amendments within one year. This involved restructuring existing local government bodies, conducting elections, decentralizing powers and responsibilities, and ensuring financial devolution to empower local bodies effectively
1. Structural Establishments and Elections:
- Post-Amendments, every state passed implementation legislation (1994-2004).
- Multiple rounds of elections conducted in states like Madhya Pradesh and Rajasthan.
- Established over 600 Zilla Panchayats, 6,000 intermediary Panchayats, and 2,40,000 Gram Panchayats in rural India.
- Over 100 city Corporations, 1400 town Municipalities, and over 2000 Nagar Panchayats were formed in urban India.
- More than 32 lakh members are elected every five years.out of which 12 lakh are women
2. Women Empowerment:
- One-third reservation for women in all Panchayat and Nagarpalika institutions.
- Approximately 200 women Adhyakshas in Zilla Panchayats and over 80,000 women Sarpanchas in Gram Panchayats.
- Over 30 women Mayors, more than 500 women Adhyakshas of Town Municipalities, and nearly 650 Nagar Panchayats headed by women.
- Panchayat Pati : Initial instances of women as proxies for male relatives, but decreasing over time
3. Representation of Scheduled Castes and Tribes:
- 16.2% Scheduled Castes and 8.2% Scheduled Tribes in the Indian population
- About 6.6 lakh elected members from these communities in urban and local bodies
- While reservation is mandated for SC & ST, most States have also made a provision to reserve seats for Backward Castes.
4. Transfer of Subjects:
- 29 subjects related to local welfare and development transferred to local governments.
- Many states did not fully transfer the subjects, limiting the autonomy and functionality of local bodies.
5. Financial Aspects:
- Local bodies, especially rural, exhibit a financial imbalance; they generate 0.24% of total revenues but account for 4% of total government expenditure.
- Dependency on state and central governments for financial support has eroded the capacity of local bodies to operate effectively.
6. Impact and Criticism:
- Despite limitations, local bodies have democratized governance structures and enhanced people's participation in government.
- The amendments aimed to make democracy more meaningful and reflective of social diversities, leading to inevitable conflicts and tensions.
- Critics argue about the symbolic nature of the local bodies and their limited power in choosing welfare programs or allocating resources due to state control.
Local Government in Bolivia & Brazil
Bolivia
1. Decentralization Law (1994):
- The Popular Participation Law aimed to decentralize power to local levels.
- Enabled the popular election of mayors and the establishment of municipalities.
- Crafted a system of automatic fiscal transfers to new municipalities.
2. Administrative Structure:
- Country divided into 314 municipal governments.
- Headed by popularly elected mayors (presidente municipal) and a municipal council (cabildo).
- Local elections occur nationwide every five years.
3. Functions and Responsibilities:
- Entrusted with building and maintaining local health and education facilities.
- Allowed to levy taxes on motor vehicles, urban property, and large agricultural properties.
4. Fiscal Framework:
- 20% of nationwide tax collections are distributed among municipalities on a per capita basis.
- Fiscal transfers form the bulk of the operating budget for municipal governments.
Brazil
1. Constitutional Provision:
- The Constitution creates States, Federal Districts, and Municipal Councils, each with independent powers and jurisdiction.
- Prohibits interference of the Republic in States and States in municipal councils, except on constitutional grounds.
2. Autonomy and Protection:
- The provision protects the powers of the local government.
- Ensures non-interference in local affairs, granting autonomy to local governance structures.
3. Roles and Responsibilities:
- Not explicitly mentioned in the provided information, but similar to Bolivia, local governments in Brazil may be responsible for local services and infrastructure maintenance.
Difference Between 73rd & 74th Amendment
Feature | 73rd Amendment | 74th Amendment |
Applicability | Applies to Rural Areas (Panchayati Raj) | Applies to Urban Areas (Municipalities) |
Institutions | 1. Gram Panchayat | 1. Nagar Panchayat |
ㅤ | 2. Mandal or Taluka | 2. Municipal Council |
ㅤ | 3. Zilla Panchayat | 3. Municipal Corporation |
Level of Governance | Three-Tier Structure | Generally a Three-Tier Structure |
Members | Panch, Sarpanch | Councillors, Mayor |
Reservation | One-third of seats reserved for women | One-third of seats reserved for women |
ㅤ | Reservations for SCs and STs | Reservations for SCs and STs |
Election Commission | State Election Commissioner | State Election Commissioner |
Financial Commission | State Finance Commission | State Finance Commission |
Subjects/Responsibilities | 29 subjects listed in the Eleventh Schedule of the Constitution | 18 subjects listed in the Twelfth Schedule of the Constitution |
Gram Sabha | Mandatory creation of Gram Sabha,consisting of adult members of the village registered as voters | No equivalent provision. However, Ward Committees are there in urban areas |
ㅤ | ㅤ | ㅤ |
Planning | District Planning Committees
to consolidate plans of Panchayats | District Planning Committees
to consolidate plans of Panchayats |
1. If we take into account elected representatives of parliament and state legislatives only 5000 member represent 140 crore people but with local self government, representation has increased to 32 lakh people which is significant
2. Local Urban Bodied earn 0.24% of funds but spend 4% of expenditure. this imbalance should be corrected by learning from bolivia where 20% of nationwide tax is allocated to cabildo i.e municipal corporations
Chapter 9 - Constitution as a Living Document
Is Indian Constitution Static
Key Takeaways:
- Constitutions are Dynamic:
Constitutions often undergo modifications or rewrites to adapt to the changing circumstances, societal ideas, or political upheavals.
Example: The Soviet Union had four constitutions in 74 years, and the Russian Federation adopted a new one in 1993 post the disintegration of the Soviet Union.
- Indian Constitution's Robustness:
Adopted on 26 November 1949 and implemented on 26 January 1950, the Indian Constitution has remained the country's governing framework for over seven decades.
The constitution is considered robust and suited to the country, reflecting the foresightedness of the constitution makers who provided solutions for future situations.
It accepts the necessity of modifications and has exhibited flexibility and adaptability through political practices and judicial interpretations.
- Balancing Act:
Constitution makers need to address contemporary issues and challenges while also creating a framework durable enough for future governance.
A constitution is not frozen; it needs revisions and changes, serving as an instrument societies create for their democratic governance.
It has a dual role: accommodating the dreams and aspirations of society and acting as a framework for democratic governance.
- Alteration and Respect:
The Indian Constitution is placed above ordinary law, and it's expected to be respected by future generations.
It's recognized that modifications may be required over time to reflect the evolving consensus and opinions in society.
The constitution is neither the final word about everything nor is it unalterable. It is a combination of being a sacred document and an adaptable instrument requiring changes from time to time.
How to Amend the Constitution
1. Article 368:
- Article 368: Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
- Outlines the power of Parliament to amend by way of addition, variation, or repeal any provision of the Constitution following the procedure laid down in this article.
- Acts as a cornerstone for amendments, providing different methods based on the nature of the amendment.
2. Flexibility and Rigidity:
- The Constitution combines flexibility (open to changes) and rigidity (resistant to changes) to allow for necessary amendments while preventing unnecessary and frequent alterations.
- Some parts of the Constitution can be amended by a simple law of Parliament, making them very flexible.
- Example:
- Article 2: "Parliament may by law admit into the union... new states...."
- Article 3: "Parliament may by law... b) increase the area of any state...."
3. Procedures for Amendment:
- Simple Law: Some articles can be amended by a simple law of Parliament, indicated by the wording ‘by law’, without recourse to the procedure in Article 368.
- Special Majority: For many articles, a special majority of the two houses of Parliament is required. It implies that supporters of the amendment bill must constitute at least half of the total strength of that house and two-thirds of those actually voting.
- Ratification by States: For amendments related to the distribution of powers between the States and the central government or articles related to representation, it requires a special majority of Parliament and the consent of half of the State legislatures.
4. Special Majority Explained:
- To amend the Constitution, supporters of the amendment bill should constitute at least half of the total strength of that House and two-thirds of those participating in the voting.
- Both Houses of Parliament must pass the amendment bill separately with this special majority, ensuring consensus and broad support among political parties and parliamentarians.
5. Ratification by States:
- Certain amendments, especially those affecting the federal nature and power distribution between the States and the central government, require consent from the legislatures of half the States, ensuring wider consensus in the polity and respecting the federal nature of the Constitution.
- This condition, although stringent, is made practicable by requiring consent from only half the States with a simple majority in each state legislature.
6. Special Majority and Presidential Assent:
- To amend the Constitution, supporters of the amendment bill should constitute at least half of the total strength of that House and two-thirds of those participating in the voting.
- Both Houses of Parliament must pass the amendment bill separately with this special majority; there is no provision for a joint session. An amendment bill, like all other bills, goes to the President for his assent, but in this case, the President has no powers to send it back for reconsideration.
- This process ensures consensus and broad support among political parties and parliamentarians and maintains the sovereignty of parliamentary democracy.
7. Protection and Evolution:
- The framers of the Constitution intended to shield it from easy tampering while permitting future generations to amend and modify it according to the needs and requirements of their times, ensuring the Constitution’s relevance and adaptability.
Why Have There Been So Many Amendments?
Context:
- The Constitution of India has been amended 103 times as of 12th January 2019.
Historical Perspective:
- Periods of High Frequency:
1970 to 1990 saw numerous amendments.
Ten amendments occurred in three years between 1974 and 1976, and again from 2001 to 2003.
- Political Landscape:
1974-1976 marked by Congress domination in Parliament and most State Assemblies.
2001-2003 characterized by coalition politics and differing ruling parties in states, marked by rivalry between the BJP and its opponents.
Analytical Insights:
- Political Influence:
Amendments are not solely dependent on the nature of the majority of the ruling party.
Despite diverse political scenarios, significant amendments occurred.
- Consistent Amendments:
Amendments have been consistently made every decade, barring the first after the commencement of the Constitution.
Indicates a recurrent need for amendments irrespective of the ruling party and the prevailing political environment.
Criticisms and Interpretations:
- Public Scrutiny:
103 amendments in 69 years have led to criticisms about the flexibility and potential inadequacies of the Constitution.
- Constitutional Flexibility and Adequacy:
High frequency suggests adaptability to the changing needs and scenarios of the country.
It doesn’t necessarily reflect inadequacies of the original Constitution but rather its evolving nature.
Conclusion:
- Evolving Needs
- Adaptive Mechanism
- Constitutional Resilience and Dynamism
Analysis of Amendments
1. Technical or Administrative Amendments:
- Description:
Amendments classified as technical or administrative usually entail clarifications, explanations, and minor modifications to the original provisions without substantial difference.
These amendments typically reinforce existing practices or fine-tune procedural aspects.
- Examples:
15th Amendment: Increased the retirement age of High Court judges from 60 to 62 years.
54th Amendment: Adjusted the salaries of High Court and Supreme Court judges.
Reserved Seats Extension: Amendments every ten years to extend the reservation of seats for scheduled castes and tribes in legislatures.
Article 74 (1) Clarification: It clarified that the President shall act in accordance with the advice of the Council of Ministers.
2. Differing Interpretations:
- Description:
Amendments arising from conflicts in constitutional interpretation between the judiciary and the government.
When the Parliament disagrees with judicial interpretation, it might amend the Constitution to establish an authentic interpretation.
- Examples:
Amendments between 1970 and 1975: Addressed issues of fundamental rights, directive principles, right to private property, and scope of Parliament’s power to amend the Constitution.
Contextual Understanding: The political events between 1970-75 contextualize the amendments made during this period, focusing on constitutional development.
3. Amendments through Political Consensus:
- Description:
Result from an agreement among political parties reflecting prevailing political philosophy and societal aspirations.
These amendments usually embody evolving consensus on certain issues.
- Examples:
Post-1984 Amendments: Characterised by consensus despite political turbulence
the anti-defection amendments (52nd and 91st)
amendments related to reservation measures (77th, 81st, and 82nd).
73rd and 74th Amendments: Empowered local governance.
61st Amendment: Lowered the voting age from 21 to 18 years.
4. Controversial Amendments:
- Description:
Amendments causing substantial legal and political controversy, perceived as attempts to subvert the Constitution.
1970 to 1980: This period was particularly marked by several controversial amendments, altering crucial parts of the Constitution.
- Examples:
38th, 39th, and 42nd Amendments: Occurred during internal emergency (June 1975), these were seen as impacting large parts of the Constitution. Tried to overturn the judgement of Keshavanand Bharti Case. The 42nd Amendment also added Fundamental Duties and put restrictions on judicial review, making substantial changes to the Preamble, the seventh schedule, and 53 articles of the Constitution.
43rd and 44th Amendments: These were introduced by the new government post-1977 to revert most changes made by the controversial amendments, thereby restoring constitutional balance
List of Amendements
Amendment Number | Year | Name/Title/Purpose |
1st | 1951 | Land Reform and Abolition of Zamindari System |
15th | 1963 | Increased the Age of Retirement of High Court Judges from 60 to 62 years |
42nd | 1976 | "Mini Constitution": Added Fundamental Duties, Altered Preamble, Extended the Duration of Lok Sabha and State Assemblies |
44th | 1978 | Reversed Changes made by the 42nd Amendment, Reduced the duration of Lok Sabha and State Assemblies |
52nd | 1985 | Anti-Defection Law: Provided disqualification of members from parliament and assembly in cases of defection |
54th | 1986 | Increased Salaries of Judges of High Courts and the Supreme Court |
61st | 1988 | Lowered Voting Age from 21 to 18 years |
73rd | 1992 | Panchayati Raj: Introduction of the Three-tier System of Rural Local Government |
74th | 1992 | Municipalities: Provisions for Municipalities and Urban Local Government |
77th to 82nd | 2000-2000 | Provided for Reservation in promotions for SCs and STs |
101st | 2016 | Introduction of Goods and Services Tax (GST) |
104th | 2019 | Extended the Reservation of seats for SCs and STs in the Lok Sabha and State Assemblies by another 10 years |
Basic Structure
1. Origination:
- The theory of the "basic structure" of the Constitution originated from the Supreme Court ruling in the Kesavananda Bharati case in 1973.
2. Impact:
- Sets Limits: It sets specific limits to Parliament’s power to amend the Constitution, ensuring no amendment can violate the Constitution's basic structure.
- Flexibility & Rigidity: It balances the flexible and rigid nature of the Constitution, allowing amendments while protecting core elements.
- Judicial Authority: It places the Judiciary as the final authority in determining whether an amendment violates the basic structure and defining what constitutes the basic structure.
- Accepted Precedent: Over the past four decades, this theory has governed all interpretations of the Constitution, and all institutions have accepted it.
3. Evolutionary Aspect:
- Living Constitution: The theory exemplifies the concept of a living constitution, evolving through judicial interpretation, despite no explicit mention in the original Constitution.
- Interpretative Amendments: Judicial interpretations have practically amended the Constitution without formal amendments, altering understandings of various provisions.
4. Contributions to Constitutional Understanding:
- Reservation Limits: The Supreme Court has defined and solidified the accepted principle that reservations cannot exceed fifty per cent of total seats.
- Creamy Layer Concept: It introduced the idea of the “creamy layer” in reservations for other backward classes, excluding those in this category from reservation benefits.
- Enhanced Rights Interpretation: It has expanded the understanding and scope of various rights like the right to education, right to life and liberty, and the rights of minority educational institutions
The Constitution as a Living Document
Living Document Concept:
The Constitution is dynamic and adaptive, evolving with changing societal values and needs, making it durable and relevant.
Balancing Supremacy and Rule of Law:
Parliamentary Supremacy:
- Essential in a parliamentary democracy.
- Maintains balance with other government organs within the constitutional framework.
Rule of Law:
- Democracy also hinges on the rule of law and the development and functionality of institutions.
- All political institutions must maintain a balance and be responsible to the people.
Contribution of Judiciary and Basic Structure Doctrine:
Judiciary’s Role:
- Vital in interpreting the Constitution and preventing arbitrary power use.
- Ensures pro-people measures align with constitutional provisions and legal procedures.
Basic Structure Doctrine:
- Introduced in the Kesavananda Bharati case.
- Emphasizes the spirit over the letter of the Constitution, protecting core, inviolable principles.
- The doctrine is accepted and respected by various constitutional entities, reflecting its enduring relevance.
Reconciliation and Maturity of Political Leadership:
Acceptance of Doctrine:
- Political entities accepted the basic structure doctrine despite resistance, illustrating political maturity and a balanced perspective.
- The rulings in Kesavananda and Minerva Mills cases have sustained, maintaining a harmonious relationship between the judiciary and the Parliament.
Shared Vision and Enduring Values:
Foundational Values:
- The Constitution enshrines a shared vision of dignity, freedom, equality, and national integrity.
- These enduring values and the aspiration to realize them have preserved the Constitution’s authority and respect, ensuring its continuous relevance.
Constitution Review Commission (2000) → Venkatachaliah Committee
Establishment and Leadership:
Formed in 2000, led by Justice Venkatachaliah, a retired Chief Justice of the Supreme Court.
Controversy and Opposition:
Faced boycotts from opposition parties and various organizations.
Despite political controversies, the commission upheld the basic structure doctrine and didn’t propose any changes that would threaten it.
Significance:
The adherence to the basic structure doctrine underscores its pivotal role and enduring influence in Indian constitutional practice.
Special Majority- Global Perspective:
Principle of Special Majority:
- Employed by the constitutions of the U.S., South Africa, Russia, etc.
- Requires a two-thirds majority in the U.S. and three-fourths majority in South Africa and Russia for certain amendments.
Principle of People’s Participation:
- Seen in Switzerland, Russia, and Italy, where people can initiate or approve constitutional amendments.
- In Switzerland, people have the power to initiate an amendment.
The Evolution of the French Constitution:
Post-Revolution Period:
The 1793 constitution marked the first French republic post-revolution.
Continual Experimentation:
France underwent numerous constitutional reforms, with new republics and constitutions established in 1848, 1875, 1946, and 1958.
Fifth French Republic (1958):
The latest constitution, establishing the fifth French republic, showcases France’s dynamic constitutional journey marked by revisions and adaptations.
Chapter 10 - Philosophy of the Constitution
Constitution as a Means of Democratic Transformation
1. Purpose of Constitution:
- Power Restriction:
The constitution is established primarily to restrict the exercise of power by modern states, preventing potential tyranny.
- Democratic Transformation:
It enables peaceful, democratic means for social transformation and political self-determination, especially for colonized people.
2. Nehru’s Perspective:
- Constituent Assembly:
Represented a collective demand for full self-determination and was seen as a means of discarding past political and social structures and forging a new path.
- Indian Constitution’s Role:
Aimed at breaking traditional social hierarchies and introducing a new era focusing on freedom, equality, and justice.
- Empowerment:
Nehru believed in the empowering aspect of the constitution, emphasizing its ability to give power to the traditionally vulnerable and deprived, enabling them to achieve collective good.
3. Relevance of Revisiting Constituent Assembly:
- Importance:
For students of politics, studying the intentions and concerns of the framers of the constitution helps in understanding the basis of legal and political ideas and the normative function of the constitution.
- Contemporary Relevance:
Despite changes over time, the values, ideals, and conceptions from the time of the Constituent Assembly are still relevant to present-day India.
- Understanding Underlying Principles:
Revisiting the Constituent Assembly debates and the colonial era is crucial to understanding current constitutional practices, grasping their value and meaning, and ensuring the remembrance of the political philosophy underlying our Constitution.
4. Rationale for Historical Context:
- Changed Circumstances:
Even though circumstances have changed, there is a need to define anew the normative function of the constitution in the light of the foundational principles laid down by the framers.
- In-depth Understanding:
A historical perspective, going back to the Constituent Assembly debates and even the colonial era, provides an essential context for current practices, principles, and values embedded in the constitution.
5. Constitution and Societal Transformation:
- Theory of Constitutional Democracy:
The constitution not only limits people in power but also empowers those who have been traditionally deprived, serving as a medium for societal and democratic transformation.
- Relevance in the 21st Century:
The values and standards of the constitution remain pertinent, and the history of the constitution is a reflection of the present, requiring constant revisiting to understand and apply its foundational principles.
Political Philosophy of the Constitution
1. Philosophical Components
- Liberal:
Focuses on individual freedom, evident from the continuous emphasis on freedom of expression and freedom from arbitrary arrest.
- Democrati
Encourages a democratic approach for implementation.
- Egalitarian & Secular
Provides equal respect among communities and individuals irrespective of their religion, caste, or creed.
- Federal & Inclusive
Open to community values and sensitive to the needs of minorities and historically disadvantaged groups.
- National Unity
Committed to building a common national identity while respecting diversity.
2. Commitment to Individual Freedom
Rooted in the history of intellectual and political activity, with prominent figures like Rammohan Roy advocating for individual rights like freedom of the press during the British rule.
- Importance
It's a non-negotiable value, emphasized in every resolution, scheme, bill, and report of the Indian National Congress for over forty years before the adoption of the Constitution.
- Inclusion in Constitution
Integrated as fundamental rights in the constitution, including freedom of expression and conscience.
3. Focus on Social Justice
- Beyond Classical Liberalism
Unlike classical western liberalism, which prioritizes individual rights, the Indian Constitution intertwines liberalism with social justice.
- Provision for Reservations
Constitutionally mandated reservations for Scheduled Castes and Scheduled Tribes in legislatures and public sector jobs to overcome historical injustices and ensure real equality.
- Context
Indian liberalism is distinct due to its constant linkage with social justice, ensuring the protection of the interests of historically oppressed and disadvantaged groups.
4. Respect for Diversity & Minority Rights:
- Equal Respect Between Communities:
The constitution encourages equality and mutual respect among diverse communities, focusing on overcoming existing hierarchical relationships and rivalries between different communities.
- Acknowledgement of Community-Based Rights:
Unlike most western constitutions, it openly recognizes the importance of communities and ensures that no one community dominates others systematically.
- Provision for Educational Institutions:
The constitution allows religious communities to establish and run their educational institutions, potentially receiving government funds, recognizing the importance of community values in public life.
5. Consideration for Community Values:
- Multiple Cultural Communities:
The constitution acknowledges India as a land of diverse cultural, linguistic, and religious communities and seeks to ensure equal rights and respect for all.
- Value of Communities:
It not only recognizes individual rights but also emphasizes the value of communities in shaping values, traditions, customs, and languages of individuals.
- Balancing Individual and Collective Rights:
The constitution maintains a balance by addressing the rights of individuals while acknowledging the significance and rights of communities in the societal structure.
Secularism in Indian Constitution
- Concept of Secularism:
Western Perspective: Mutual exclusion of state and religion to protect individual freedom and citizenship rights; state must not intervene in the domain of religion and vice versa; prevalent notion is the strict separation of religion and state.
Indian Perspective: Principled distance, allowing intervention or non-intervention by the state to promote liberty, equality, and social justice.
- Purpose of Secularism:
Safeguard individual freedom and prevent religious organizations from dictating religious lives of individuals.
State should neither help nor hinder religions, maintaining arm’s length from them to protect religious freedom.
- Indian Adaptation:
Due to deep-rooted and pervasive religiously sanctioned customs like untouchability, active state intervention was necessary.
The state may help or hinder religious communities to promote values like freedom and equality.
Rights of Religious Groups:
- Importance in India:
Recognizing inter-community equality is necessary for individual freedom and self-respect.
Individual's dignity and self-respect are directly dependent on the status of their community; dominated communities’ members have less freedom.
- Rights Granted:
Indian Constitution grants rights to establish and maintain educational institutions to all religious communities.
Upholds freedom of religion for both individuals and communities.
State’s Power of Intervention:
- Need for Intervention:
- State’s intervention is critical in cases where religious customs are deeply rooted and pervasive.
Active state intervention was needed to dissolve religiously sanctioned customs depriving individuals of basic dignity and self-respect.State’s intervention is critical in cases where religious customs are deeply rooted and pervasive.
- Types of Intervention:
Can be positive, e.g., aiding educational institutions run by religious communities.
Can also hinder religious communities to promote freedom and equality.
- Principled Distance:
Indian secularism allows the state to maintain a distance to intervene or abstain from interference to promote liberty, equality, and social justice.
Core Features of Indian Constitution:
- Reinforces Liberal Individualism:
Reinvents forms of liberal individualism against a backdrop of society where community values may be indifferent or hostile to individual autonomy.
- Upholds Social Justice:
Upholds the principle of social justice without compromising individual liberties.
Showcased through constitutional commitment to caste-based affirmative action programs.
- Commitment to Group Rights:
Constitution is committed to group rights and the expression of cultural particularity, demonstrating a willingness to face the challenges of multiculturalism.
Achievements of Indian Constitution:
- Advancement in Affirmative Action:
India was ahead compared to nations like the U.S. in implementing affirmative action programs.where us did the black affirmative program after civil rights act of 1964
- Harmonizing Individualism and Community Values:
Balances liberal individualism with community values in a society where the latter can be indifferent or hostile to the former.
- Addressing Multiculturalism:
Constitution has shown commitment to addressing the complexities and challenges posed by multiculturalism, by upholding group rights and inter-community equality.
Universal Franchise
Universal Franchise in the Indian Constitution
Overview:
- The Indian Constitution’s commitment to universal franchise is notable.
- It stands as a significant achievement due to the historical context of India and global trends in extending franchise.
Linkage with Nationalism:
- Idea of a Nation: Once this took root among the elite, it led to the concept of democratic self-government.
- Integral Component: The idea of universal franchise became an integral component of Indian nationalism.
- Vision of Political Order: Indian nationalism conceived a political order that is based on the will of every single member of society.
Historical Stride:
- Constitution of India Bill (1895):
- First non-official attempt to draft a constitution for India.
- Declared every citizen, anyone born in India, had a right to partake in the country’s affairs and be admitted to public office.
- Motilal Nehru Report (1928):
- Reaffirmed the conception of citizenship.
- Stated that every person of either sex above twenty-one was entitled to vote for the House of Representatives or Parliament.
- Early Recognition: Universal franchise was recognized early as the legitimate means by which the nation's will is expressed.
Uncontested Acceptance:
- Principle: ‘One man one vote’ was accepted almost uncontestedly in India.
- Comparative Perspective: In many countries, especially women, had to struggle for their right to vote, making India’s smooth acceptance noteworthy and a matter of pride.
Conclusion:
- Embodiment of Values: The commitment to universal franchise embodies the democratic values within the Indian Constitution.
- Vision of Inclusive Society: It reflects the aspirations for an inclusive and egalitarian society.
- Contrast with Other Nations: The smooth acceptance of universal franchise in India contrasts with struggles in other nations to expand suffrage.
- Inclusive Ideals: The framers of the Constitution aimed to instill progressive and inclusive ideals in the nation’s political fabric, allowing every citizen to have a say in the nation’s affairs.
Federalism
Asymmetrical Federalism
- Concept:
Indian federalism is asymmetric, contrasting the constitutional symmetry of American federalism. It allows for unique relationships and special statuses to meet specific needs and requirements of different sub-units.
- Example:
Article 371A accords special status to the North-Eastern State of Nagaland, protecting local identity and restricting immigration, among other provisions.
Multi-Lingual Federation
- Evolution:
India has evolved into a multi-lingual federation where each major linguistic group is politically recognized and treated equally.
- Outcome:
This form of democratic and linguistic federalism combines claims to unity with claims to cultural recognition, allowing the existence of a robust political arena for multiple complementary identities.
National Identity
National Identity and Regional Identities:
- Balancing Identities:
The Constitution reinforces a common national identity while striving to retain regional, linguistic, and religious identities.
It attempts to balance various identities, giving preference to common identity under certain conditions, like rejecting separate electorates based on religious identity.
- Objective:
Rather than forced unity, the Constitution seeks to evolve true fraternity and to evolve ‘one community,’ fostering a healthy national life, as echoed in the words of Dr. Ambedkar and Sardar Patel.
Indigenous Imprint on Borrowed Aspects:
- Innovation in Adoption:
While the Constitution has adopted or ‘borrowed’ several aspects from other constitutions, it has significantly modified them to suit India’s unique context, ensuring that it retains a distinct imprint of Indian values, ideals, and circumstances.
- Objective:
The goal was to frame a Constitution that caters to the diversity and plurality of India, fostering unity and fraternity, and addressing the challenges and needs of the nation.
Procedural Achievements of the Indian Constitution
1. Faith in Political Deliberation:
Inclusivity
Even though several groups weren’t adequately represented in the Constituent Assembly, the constitution makers aimed to be as inclusive as possible.
Open-ended Approach:
The debates reflect an open-minded approach, indicating the willingness of the people to modify existing preferences.
Valuing Difference and Disagreement:
The constitution making process shows a recognition of the creative value in difference and disagreement, valuing reasons over self-interest.
2. Spirit of Compromise and Accommodation:
Value Trade-offs:
The Constitution reflects compromises, where values are partially traded off for other values through an open process of deliberation among equals.
Moral Stand:
Such compromises are not morally blameworthy as they secure bits of all things important.
Consensus over Majority:
There is a commitment to the idea that decisions on crucial issues should be consensual rather than merely by majority vote, reflecting moral commendability.
Criticism and Limitation of Indian Constitution
Unwieldy Nature
- Assumption
The criticism stems from the assumption that a country’s constitution must be a compact document.
- Counter Argument:
Many countries have several important constitutional statements and practices outside one compact document.
The Constitution of India includes many details and provisions like those for the election commission or the civil service commission, making it comprehensive and extensive.
Unrepresentativeness
- Voice vs. Opinion:
Two components of representation: voice (being recognized in one's language or voice) and opinion (the representation of different thoughts and perspectives).
- Restricted Franchise:
Members of the Constituent Assembly were chosen by a restricted franchise, not by universal suffrage.
- Representation of Opinions:
A vast range of issues and opinions were deliberated in the Constituent Assembly, representing various social sections and concerns.
Alien to Indian Conditions
- Influence of Western Constitutions:
Accusations of borrowing article by article from Western constitutions, not aligning with the cultural ethos of India.
- Innovative Borrowing:
While the constitution is modern and partly western, the borrowing was innovative and selective, amalgamating western and traditional Indian values. Example Indian Federalism
- Adoption and Adaptation:
Many Indians adopted modern ways of thinking as a form of protest and used the newly introduced legal systems to address questions of dignity and justice.
- Hybrid Culture:
Interaction between western modernity and local cultures led to the emergence of different, alternative modernities.
Limitations of the Indian Constitution
1. Centralized Idea of National Unity
The Constitution propounds a centralized idea, focusing on a unified national identity.
Example
The Indian Constitution gives substantial powers to the Central Government over State Governments in many areas, creating a unitary bias in a federal structure. For instance, under Article 356, the President of India has the power to dissolve a state government if it is deemed that the constitutional machinery in a state has failed, reflecting a centralized idea of maintaining national unity and order
2. Gender Justice
It is perceived to have overlooked some crucial issues of gender justice, especially within familial structures
Example
The Constitution initially did not explicitly address issues related to marital rape or gender discrimination within the family structure, leading to perceived oversights in gender justice. While subsequent amendments and legislations have sought to address gender justice, such as the Protection of Women from Domestic Violence Act, 2005, there are still debates and discussions on the effectiveness and comprehensiveness of these provisions in addressing gender inequalities within familial structures.
3. Socio-Economic Rights
The relegation of certain basic socio-economic rights to the Directive Principles rather than integrating them as fundamental rights raises concerns.
This is especially questionable in the context of India being a developing country with widespread poverty.
Example
The Constitution of India placed the right to adequate means of livelihood and the right to work under the Directive Principles of State Policy, which are not justiciable, unlike the Fundamental Rights. This means that individuals cannot approach the courts for the enforcement of these rights, raising concerns especially in a country where a significant population is grappling with poverty and unemployment. These socio-economic rights being non-enforceable have led to debates on whether they should be included as Fundamental Rights to ensure a more equitable society.