33 Solved Questions with Answers
1. Do you think that Constitution of India does not accept principle of strict separation of powers rather it is based on the principle of 'checks and balance'? Explain.
Indian constitution have meticulously defined powers and functions of the different organs of the state. Legislature, executive and judiciary have to function within their own spheres demarcated under the constitution. Unlike the US constitution, instead of having strict separation of power India follows the principle of ‘checks and balance’ which is evident from the various constitutional provisions dealing with executive, legislative and judicial organs.
- The executive power of the state is exercised by the President, who acts on the advice tendered by the council of ministers headed by the Prime Minister. However, according to article 75, the council of ministers with the responsibility of forming policies and implementing them are the members of the Parliament and responsible to the Lok Sabha.
- Under the constitutional provision, Parliament in India includes the Lok Sabha, the Rajya Sabha and the President. Parliament, the legislative body, has the head of executive as its integral part. Accordingly, the parliament uses different motions like censure motion, no confidence motion, etc., to check the functioning of the council and hold them responsible. Further, the Parliament under article 61, can impeach the President for violation of the Constitution.
- Within the constitutional provision India has an independent judiciary with the Supreme Court at its apex. Provision of judicial review and writ under Article 32 and 226 empowers the Supreme Court and the High Courts respectively to check the constitutional validity of the executive and legislative actions. Independence of the judiciary has been ensured in the constitution but the same has been interlinked with executive and legislative organ of the government. For instance appointment and transfer of judges of High Courts and the Supreme Court is done by the executive. Further, the removal of the judges of the High Courts and Supreme court is done by the Parliament.
- Idea behind the doctrine of separation of powers is to create separate power centers rather than having all power concentrated in a single institution. Though on the whole, the doctrine of separation of power in the strict sense is not possible in modern political system, its value lies in emphasis of checks and balance, which are necessary to prevent abuse of power and uphold the rule of law. All three of them are strong pillars of India which support and strengthen each other. Thus, keeps a check and ensures smooth functioning of the whole system and the nation.
1. In the light of recent controversy regarding the use of Electronic Voting Machine (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India? (2018)
In a democracy, there is nothing more important than the credibility of the electoral process. Recently, many political parties in India have been seeking for a return to the ballot paper. The issue pertains to the efficacy and credibility of EVMs in conducting free and fair elections.
EVMs have brought a structure to the electoral process that did not exist during the ballot paper days when the number of invalid votes would often be high and incidents of booth capturing were a common phenomenon. However, recently the transparency and efficacy of EVMs have been questioned. The Election Commission of India faces the following challenges in this regard:
- To prove to the electorate and the parties that the EVMs are not manipulated and tempered.
- The EVMs are selected by computers on the principle of randomization which does not allow a prior knowledge or planned setting for a particular EVM in a particular constituency or at a particular polling booth. But the challenge before the commission is to account for the authenticity of these processes.
- It is also being opined that the present EVMs are not technologically advanced and secure.
- Ensuring an independent and robust verification system in the whole exercise of manufacturing and placement of EVMs, and registeration and counting of votes.
- Though EC has decided to use Voter Verifiable Paper Audit Trail (VVPAT) machines in all future elections, it is yet to take a decision on tallying all votes cast through EVMs. So far, it has only ordered recounting of VVPAT slips on pilot basis.
- In recently concluded by-elections (e.g. in Kairana Lok Sabha by-elections) there were reports of last minute glitches with EVM and VVPAT which raises doubt about their functioning.
- Another challenge is to procure required VVPAT without delay for the Lok Sabha elections 2019.
- Considering the complexity VVPAT is introducing in to electoral process there is need for competent polling officers.
- VVPATs are very complicated and slight mishandling can result in failure. E.g. In Meghalaya Assembly by polls more than 33 per cent VVPATs failed as the paper used was not suitable for the humid weather there.
1. Discuss the essentials of the 69th Constitutional Amendment Act and anomalies, if any, that have led to recent reported conflicts between the elected representatives and institution of Lieutenant Governor in the administration of Delhi. Do you think that this will give rise to a new trend in the functioning of the Indian Federal Politics? (2016)
Delhi has a peculiar federal architecture. Before the 69th Constitutional Amendment Act of 1991, Delhi was a Union Territory. The amendment re-designated it as National Capital Territory of Delhi and designated the administrator of Delhi as the Lieutenant Governor (LG).
Further, it created a Legislative Assembly and a Council of Ministers for Delhi. The assembly can make laws on all matters of the State List except public order, land and police. The Council of Ministers (CoM) headed by the Chief Minister aid and advice the LG in exercise of his functions except in so far as he is required to act in his discretion.
The recent cases of conflicts between the LG and the government have largely happened due to assertion of this discretion by the LG with regards to matters such as appointments, like that of Parliamentary Secretaries. The ambiguities with respect to the discretion of LG have resulted in a tussle between his office and the government. The government has accused the LG of acting on behalf of the centre to prevent proper functioning of the government. It claims that the LG should act on the aid and advice of CoM on matters except those stated in the amendment. Since Delhi is the seat of both the national capital territory as well as that of the central government, the centre is bound to have a say in the matters of the city. At the same time, the LG should not interfere in the day to day running of the government. The LG has a dual role to play as an administrative and constitutional head. A balance of jurisdictions needs to be determined so that the citizens don’t suffer as a result of the policy paralysis happening due to this turf war. The ultimate loser is governance and people of Delhi.
This impasse is not new altogether. Since 1967, when the parties ruling at centre and state started varying, there has been trust deficit between the state/UT govts and the governors or administrators acting on behalf of centre. In Delhi also, successive governments have asked for more power and full statehood. It has just been magnified in current times due to presence of strong leadership at both central and state level. There is a need for harmonious functioning based on the spirit of co-operative federalism between the two.
1. “The local self government system in India has not proved to be effective instrument of governance”. Critically examine the statement and give your views to improve the situation. (2017)
self governmentsystem (LSGs), having an important role in local planning, development andadministration, got a big fillip when it got constitutional status under 73rd and 74th Amendments.
Successes of LSGs in India
- Democratic Decentralisation through the election of 30 lakh representative in panchayats alone (as per Devolution Index Report 2013-14 of IIPA).
- Voice to the marginalized and vulnerable sections of the society through reservations for women, SCs and STs.
- Effective public service delivery as per the needs of the local population through LSG allows for
bottom-upapproach. Example- MGNREGA.
Shortcomings of LSGs in India
The LSGs are dependent on the states for:
- Functions: The progress of devolution of powers and responsibilities to local governments at various levels is poor and uneven.
- Funds: The local bodies cannot even meet routine functions because the proceeds of various taxes are not available to them as they form part of the Consolidated Fund of the State.
- Functionaries: There is a capacity deficit among the personnel and elected functionaries due to lack of capacity building.
Measures to Improve the Status of LSG (2nd ARC)
- Clear definition of functions for each level of local government in case of each subject matter.
- State Finance Commissions should evolve objective and transparent norms for devolution and distribution of funds.
- Capacity building efforts must attend to both the
organisationbuilding requirements as also the professional and skills upgradationof individuals associated with these bodies.
- Putting in place a well-delineated activity mapping for LSGs.
2. Whether National Commission for Scheduled Castes (NCSC) can enforce the implementation of constitutional reservation for the Scheduled Castes in the religious minority institutions? Examine. (2018)
The National Commission for Scheduled Castes (NCSC), a constitutional body set up under Article 338, recently directed the Aligarh Muslim University (AMU) to provide reservations for SC/ST and OBC category students. Till now, AMU did not provide reservations since it is considered a religious minority institution under article 30.
This is because minority educational institutions, which have a 50 per cent reservation for students belonging to a minority community, do not have to provide reservations for SC/ST and OBC category students. The Supreme Court, in July 2018, upheld this. It drew light to Article 15(5), introduced by the 93rd Constitutional Amendment Act. According to Article 15(5), the state is empowered to make special provisions for the advancement of scheduled castes regarding their admission to educational institutions, except in the minority educational institutions.
Therefore, the according to the Constitution of India, minority institutions under Article 30 shall be exempt from constitutional reservations for the Scheduled Castes. As a result, it would be unconstitutional for NCSC to enforce implementation of constitutional reservation in the religious minority institutions.
2. To what extent is Article 370 of the Indian Constitution, bearing marginal note “temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss the future prospects of this provision in the context of Indian polity. (2016)
Article 370 of the Indian constitution is a temporary provision which grants special autonomous status to Jammu and Kashmir. All the provisions of the constitution do not apply to it. Besides Article 1, other provisions of the constitution can be applied to the state with exceptions and modifications as specified by the president in consultation with the state government. The power of the Parliament to make laws for the state is limited to four subjects – external affairs, defence, communication and ancillary matters. On other matters listed in the Union and Government list, Parliament can make laws only with the consent of the state of J&K.
However, the Article 370 itself clearly states that provisions with respect to the state of J&K are only temporary and not permanent. The president can declare that article 370 ceases to be operative or operates with exceptions and modifications. But this can be done by the President only on recommendation of constituent Assembly of the state. Thus, Article 370 cannot be revoked unilaterally by the centre and since the last Constituent Assembly was dissolved in 1957, a new Constituent Assembly of J&K would have to be convened.
For this, the state legislature of J&K would have to agree and since the ruling party at centre is a part of the coalition at the state level also, perhaps now is the right time to broach the issue which is usually a victim of the trust deficit between the centre and state.
2. Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. (2017)
Recently the Supreme
Court struckdown the 99th constitutional amendment and held the view that NJAC (National Judicial Appointment Commission) is not a credible alternative to the Supreme Court’s collegium system of appointment of judges for the higher judiciary.
The court held that the primacy of judiciary in the appointment of judges was part of the basic structure of the Constitution and that the parliament, through NJAC act, violated this basic structure by giving executive and civil society a say in these appointments.
Howeverthis judgementfaced criticism based on followingarguments-
- The verdict upheld an extra-constitutional forum, created by the Supreme Court’s own members to serve its own ends, in the place of a system lawfully enacted by a popularly elected Parliament.
- According to critics, the
judgementfailed to adequately answer the fundamental question at the root of the controversy, i.e. how is judicial primacy in making appointments to the higher judiciary a part of our Constitution’s basic structure. Whereas the Constitution accords to the President the power to appoint judges with compulsorily consulting with certain persons.
- Critics say that the Supreme Court, in the second judges’ case, 1993, wrongly interpreted the word ‘consultation’ used in Articles 124 and 217, to mean concurrence. The court then held that the executive was bound by the advice of the CJI in making appointments to the higher judiciary.
Even the Supreme Court has admitted in the same NJAC
judgementthat all is not well within the opaque collegiumsystem of “ judges appointing judges” and called for further discussion on reform process of collegium system.
The Constitution envisages and puts a system in place to ensure the balance of power involving the executive, the legislature and the judiciary but not at the cost of opaqueness in
appointmentprocess. With evident loopholes in the collegium system, timehas come for a review of the verdict by a larger bench.
3. Under what circumstances can the Financial Emergency be proclaimed by the President of India? What consequences follow when such a declaration remain in force? (2018)
The President of India proclaims the Financial Emergency under Article 360 of the Constitution, when he is satisfied that the financial stability or credit of India or of any part of the territory thereof is threatened.
The consequences of the proclamation of a Financial Emergency are as follows:
- The executive authority of the Centre extends to directing any state to observe such canons of financial propriety as are specified by it; and the President may issue directions, necessary and adequate for the purpose.
- Any such direction may include a provision requiring the reduction of salaries and allowances of all or any class of persons serving in the state; and the reservation of all money bills or other financial bills for the consideration of the President after they are passed by the state legislature.
- The President may issue directions for the reduction of salaries and allowances of all or any class of persons serving the Union; and the judges of the Supreme Court and the High Courts.
Till now, the Financial Emergency has never been invoked in India.
3. The Indian party system is passing through a phase of transition which looks to be full of contradictions and paradoxes.” Discuss. (2016)
The Indian party system, over more than six decades after Independence, provides a contrasting picture of partial success, serious shortcomings and huge challenges. The contradictions and paradoxes in the present phase of transition can be described as follows:
- Personality Cult in Politics — Votes are sought in the name of the leader of a party rather than ideology of the party or pertinent issues. Eg. The last general elections of 2014 swept by the ‘Modi Wave’.
- Increasing influence of dynastic politics in the absence of inner party democracy—This unlike other countries, say the US, where party members vote for candidates to run for presidency.
- Sharp erosion in the ideological orientation of political parties - Party dynamics in India has resulted in emergence of valueless politics—with caste, religion, money and muscle power playing huge roles.
- End of single-party dominance and increase in influence of regional parties – This resulted in nationalization of regional issues. Also, unprincipled alliances were formed between political parties that do not have common ideology, resulting in ‘politics of convenience’ to form coalition governments. Example- Current BJP-PDP alliance in J&K.
- Multi-Party System — In contrast to other countries where there are two major parties, there are 7 recognised national parties in India, in addition to dozens of regional parties.
The party system can be said to be moving from social cohesion to fragmentation and from a stable pattern to fluidity.
3. ‘Simultaneous election to the Lok Sabha and the State Assemblies will limit the amount of time and money spent in electioneering but it will reduce the government’s accountability to the people’ Discuss. (2017)
Recently the debate over
simultaneousholding of the election to Parliament and State legislature has been revived. The Election Commission has also supported the idea of holding simultaneous elections. “Simultaneous Elections” broadly means structuring the Indian election cycle in a manner that elections to Lok Sabha and State Assemblies are synchronized together.
Benefits of simultaneous election
- The 79th Report of the Department related Parliamentary Committee has justified the simultaneous conduct of polls on several grounds, including a huge cut in expenditure incurred for conduct of separate elections every year.
- Frequent elections lead to imposition of Model Code of Conduct (MCC) over prolonged periods of time and puts on hold the entire development programme and activities of the Union and State Governments in the
poll boundState. Simultaneous election will help in limiting amount of time in electioneering.
- Simultaneous elections would also reduce pressure on manpower and resource deployment necessary for conduct of elections.
Concerns regarding reducing the government’s accountability to the people
- Assembly elections are fought on local issues and parties and leaders are judged in the context of their work done in the state. Clubbing them with the general election could lead to a situation where the national narrative submerges the regional story and dilutes the accountability of state leadership.
Therefore, while the idea of simultaneous elections does hold merit, due consideration should be given to both its benedicts and demerits before a decision is taken.
Simultaneous elections are
desirableprovided they are juxtaposed with certain reforms that would require a prior political consensus to bring a constitutional amendment to curtail or raise term of some states to enable EC to synchronize poll schedule, raise necessary resources of EC such as EVMs, personnel, etc.
4. From the resolution of contentious issues regarding distribution of legislative powers by the courts, 'Principle of Federal Supremacy' and 'Harmonious Construction' have emerged. Explain.
Division of power is a basic feature of federalism. The Constitution provides for a three-fold distribution of legislative subjects between the Union list, the state ist, and the Concurrent List in the Seventh Schedule. However, contention develops in categorization of legislation into the entries of these three lists. To resolve these contentions, courts have evolved various principles.
Principle of harmonious construction
When there is a conflict between the statue’s provisions between the union and state list then the rule of harmonious construction needs to be adopted. The rule follows a very simple premise that every statute has a purpose and intent and should be read as a whole. The widest interpretation of the provisions of the statute should be allowed. Also, the Court should help in removal of the inconsistency of the statute’s language in order to reconcile the contention. For instance, the conflict between centre and state arose in Shri Krishna Rangnath Mudholkar vs Gujarat University, 1963 on the validity of Gujrat University Act. The court used this principle to allow the State government to make law on excluded items(reserved for the centre) as an extension to its power to legislate on education, to the extent it does not contradict the union law.
Principle of Federal Supremacy
- When a statute’s provisions fall in both state and union list, then the centre would have the dominant legislative power. The state and concurrent list are subordinate to the Union list. The Supreme court can apply this principle as a last resort if attempts to find a solution under the Principle of Federal Supremacy fails.
- In the era of cooperative and competitive federalism, conflicts should be minimized as far as possible. States should bring reform in important areas like Police, Agriculture marketing, etc. and coordinate with other states and centre in order to have a uniform legislative framework in key areas. With the recent steps like one nation, one ration card, more federal cooperation would be necessary.
4. Why do you think the committees are considered to be useful for parliamentary work? Discuss, in this context, the role of the Estimates Committee. (2018)
The functions of Parliament are varied, complex and voluminous. It has neither time nor expertise to control to make a detailed scrutiny of all legislative measures and other matters. Therefore, it is assisted by a number of committees in discharge of its duties. These committees fulfil several objectives:
- These help Parliament in managing its business in a better way. It is easier to examine a topic in depth by a committee of 30 than by an assembly of 700.
- These enable inputs from experts and also directly from people. For example, the Departmental Standing Committees often invite comments from the public and call people to testify.
- A related advantage in the Indian context is that the anti-defection law does not apply to committees — therefore, decisions are not usually made on party lines.
- These committees allow members to focus on some specific areas and build their expertise, which helps them scrutinise issues more thoroughly.
- These keep an unremitting vigil over Government expenditure and performance. For e.g. Public Accounts Committee.
Role of the Estimates Committee
Estimates Committee compromises of 30 members solely from Lok Sabha. Its main agenda is to examine the estimates included in the budget and suggest economies in public expenditure. It suggests alternative policies in order to bring about the efficiency and economy in administration. It brings to the notice of the Parliament, the ineffectiveness of the policy and need for changes in policy.
However, the effectiveness of the role of the committee is limited by the followings-
- It cannot question the policy laid down by the Parliament.
- It examines the budget estimates only alter they have been voted by the Parliament, and not before that.
- Its recommendations are advisory and not binding on the ministries.
4. Exercise of CAG’s powers in relation to the accounts of the Union and the States is derived from Article 149 of the Indian Constitution. Discuss whether audit of the Government’s policy implementation could amount to overstepping its own (CAG) jurisdiction. (2016)
CAG of India has witnessed a transformation in the last few years, with the constitutionally mandated institution bringing to the fore new issues of accountability in governance. In a decisive shift in its mode of functioning, the country’s supreme audit institution has, in its performance audits, raised questions about the government’s adoption and manner of implementation of key economic policies, instead of being merely an auditor of public expenditure.
The CAG’s proactive approach has not gone down well with successive governments. However, the CAG has argued that its mandate is to ensure that policy once formulated must also be most optimally implemented.
Policy formulation is indeed the sole prerogative of the government and the CAG should not be part of policy formulation, process or question the policy. However, in checking efficacy or the efficiency of government schemes and project, it needs to conduct performance audit involving the implementation of the policy. This is imperative to decide whether the policy that has been approved by Parliament or the government meets its objective or not.
The institution of CAG is no longer that of only auditors as it was probably 50 years back because models of the governance have changed, changing their role from static to dynamic. Hence, in the changing environment of governance, audit of government’s policy implementation becomes a part of the duties of the CAG. This was concurred in the 2013 Supreme Court judgment which held that the CAG's functions to carry out examination into economy, efficiency and effectiveness with which the Government has used its resources, was in-built in the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971, thereby empowering the CAG to conduct performance audit.
4. How do pressure groups influence Indian political process? Do you agree with this view that informal pressure groups have emerged as powerful as formal pressure groups in recent years? (2017)
Pressure groups is an organization formed when people with common occupation, interest, aspirations or opinions come together in order to achieve a common objective.
Their influences on Indian political process are-
- They have taken the role as agencies of interest articulation, interest aggregation political communication, political socialization and public opinion.
- They have been the agent of democratic deepening by highlighting the interests of certain groups.
- Very often they filled the void that political parties missed, putting issues of corruption and environment to the forefront of public policy.
- In a huge and diverse democracy like India, pressure groups have ensured that no voice is left unheard.
Of late, informal unorganized groups have asserted more power in the political
decision makingprocess. Despite being unstructured and having limited access to financial resources, these groups have proven to be much more impactful than otherwise thought possible. The issue around which they are centered resonates and connects with people cutting across religions, castes, languages andgender – resulting in the group taking the shape of a movement. This was seen in the cases of:
- Nirbhaya movement which led to changes in the Vishakha guidelines, setting up of Justice Verma committee and also an amendment in the Juvenile Justice Act.
- India against corruption movement which led to the Lokpal Act.
Both of these movements were informal, not associated
toany identities or entities – but were issue based, yet led to legislative action at the Centre.
5. What can France learn from the Indian Constitution’s approach to secularism.
European countries like France have struggled to find a middle way between secularism and state religion that combines national and religious identity, and where ethnic and religious minority groups can co-exist within state’s institutions. This can be seen in the banning of Islamic clothing, kosher or halal meals and burqas in France.
But India’s experiences can perhaps shine a light to the rigid form of secularism practiced in France:
- Although, the term ‘Secular’ was added to the preamble by the 42nd Constitution Amendment Act of 1976, the spirit of secularism, derived from Indian cultural ethos, was implicit in it.
- Indian philosophy of secularism is related to “Sarva Dharma Sambhava” which means equal respect to all religions. The State maintains a “principled distance” from all religion and intervenes wherever necessary, for example -Sabarimala Temple and Triple talaq issue.
- Like the French, Indians tend to consider secularism as part of their national identity. It is ingrained in both Constitutions but when it comes to treatment of minorities, French minorities feel targeted by “laicite”(secularism) while Indian minorities see secularism as their best protection, thus preventing them from differential treatments and phobias.
- In India, both state and religion can, and often do, interact and intervene in each other’s affairs within the legally prescribed and judicially settled parameters.
- As per the French model, the state cannot give any financial support to educational institutions run by religious communities. In India, educational institutions may receive assistance from the state.
- In India, state has the policy of setting up Departments of Religious Endowments, Wakf Boards, etc. It is also involved in appointing Trustees to these boards.
- In France, the state tries to push religion into the private sphere, where religious symbols can not be publicly displayed. Indian secularism has no such objectives and special rights are given to different communities, like- Muslims have personal laws and Sikhs are allowed to carry Kripans (Knives).
We may observe this from the fact that very few people in India were radicalised and joined ISIS as compared to their western counterparts. The concept of secularism prevalent in France has its roots in religious wars and discontent but Indian secularism has evolved in relative harmony and in light of great civilizational and cultural antecedents. Thus, Indian secularism is not an end in itself but a means to address religious plurality and aims to achieve peaceful coexistence of different religions. In times of globalisation, when almost all the countries have now become multi-religious, it is the need of the hour to learn from Indian secularism.
5. “The Comptroller and Auditor General (CAG) has a very vital role to play.” Explain how this is reflected in the method and terms of his appointment as well as the range of powers he can exercise. (2018)
CAG acts as the guardian of public purse and controls the entire gamut of financial administration. Article 148 envisages the post of CAG with a tenure of six years. He is appointed by President and can be removed on the grounds of proved misbehavior or incapacity - on the basis of a resolution passed by a special majority by both the houses of parliament.
Moreover, CAG’s salary and allowances are charged upon Consolidated Fund of India, ensuring immunity from Vote of Parliament. Thus, there are strong inbuilt safeguards available to ensure autonomy for the CAG to effectively discharge its role.
Role of CAG
- Conducts legal, regulatory and propriety audit.
- Audits expenditure from Contingency Fund, Public Account, Consolidated Fund of India and the states.
- Submits audit reports to President and Governor for legislative scrutiny.
- Audits the receipts and expenditure of Government companies and entities substantially financed from the Central or State revenues.
- Acts as a guide to Public Accounts Committee of Parliament ensuring transparency in financial administration.
Its role as the highest auditing authority is intrinsically linked to the efficacy of government policies by keeping a watch on financial aspect of Good Governance, thereby preserving the democratic ethos.
5. Discuss each adjective attached to the word ‘Republic’ in the ‘Preamble’. Are they defendable in the present circumstances? (2016)
India as a republic has an elected head of the state with political sovereignty vesting with the people and public offices open to every citizen without discrimination. The preamble states that India is a sovereign, socialist, secular and democratic republic.
- Sovereign: This implies that India is an independent state and has the freedom to conduct its own affairs. Whether it be opting for a Non-alignment in its foreign affairs during the cold war or even domestically, India has the power to legislate on any subject without influence of any other state or external power.
- Though recently, global considerations have played an important factor in decision making due to India’s membership of WTO, IMF and WB.
- Socialist: India envisages to be a socialist state to end poverty, disease and inequality by pursuing democratic socialism i.e. co-existence of both public and private sectors.
- Though there has been a roll back of the state with the opening of the economy, post-1991 economic reforms, the role of state has changed but has not entirely eroded as a regulator and facilitator in ensuring welfare of public.
- Secular: This means that in India all religions are protected and supported equally by the state and the state does not uphold any religion as state religion. The Supreme Court of India has held it to be a part of the basic structure of the constitution and defended it on multiple occasions in its judgements.
- Even in current times of intolerance, the faith, worship, ritual and secular activities of religious groups are protected under Fundamental Rights.
- Democratic: The Preamble envisages India to be democratic not only politically but also socially and economically. India is a representative parliamentary democracy where people can exercise their sovereignty through legislature. The democratic character of India is evident through the periodic elections based on universal adult franchise, rule of law, independence of judiciary etc.
Increasing role of money and muscle power in elections, has resulted in parliamentary inefficiency, but the democratic character of India has only weakened, not destroyed.
6. What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution? (2016)
Coelho case is one of the landmark judgments on the interpretation of the doctrine of basic structure of the constitution as laid down in Kesavananda Bharti case.
- In this case, a nine member bench of Supreme Court held that ninth schedule items are not immune to judicial review as it is part of the constitution. Further, nothing in Ninth schedule can abrogate fundamental rights as they form basic features of the constitution.
- The objective behind Article 31B of the Constitution is to remove difficulties and not to wipe out judicial review per se. Therefore every amendment to the constitution including amendment to the Ninth schedule has to be in accordance to the basic structure doctrine.
The judicial review is of key importance among the basic structure of the constitution as
- Judicial review is an effective means to protect the fundamental rights of citizens from legislative oversight.
- It is used to protect the primacy of constitution against the breach of power by legislature and executive.
- Judicial review attains primary importance as it subjects all legislations to close scrutiny adhering to the doctrine of basic structure which includes judicial review itself.
- Without judicial review, basic structure would be rendered powerless and open to violation by arbitrary or draconian laws.
- Judicial review is an effective tool for safeguarding the Constitution which becomes extremely necessary keeping in mind the bad experiences of Emergency.
Therefore, judicial review is a crucial aspect and cornerstone to our constitutional setup. However necessary care should be taken to ensure that judicial review doesn’t lead to judicial overreach which is harmful for a democratic set up like India.
7. Did the Government of India Act, 1935 lay down a federal constitution? Discuss. (2016)
Yes, the Government of India Act, 1935 provided for a federal framework for government. Some of the federal features of the 1935 act are as follows:
- It provided for the establishment of an All-India Federation consisting of provinces and princely states as units.
- It divided the subjects between the Centre and units into:
- Federal List — Subjects over which federal legislative had exclusive power of legislation. Eg: External Affairs, military, currency etc.
- Provincial List — Subjects over which provinces had legislative power. Eg, Education etc.
- Concurrent List — Subjects over which both could legislate.
The residuary powers were given to the viceroy
- It provided for the establishment of Federal Public Service Commission, Joint Public Service Commission and Provincial Public Service Commission.
- It provided for a Federal Legislature, consisting of House of Assembly and Council of State at the centre.
- It provided for the establishment of:
- Federal Court
- Federal Bank — The Reserve Bank of India
However, the establishment of the all–India federation did not materialize because it was optional for the princely states who did not join. Further, the Federal Legislature was not a sovereign legislature since the Governor General had a veto over the bills passed by it. Hence, it was federal in letter but not in spirit.
8. What is quasi judicial body? Explain with the help of concrete examples. (2016)
An authority is described as quasi-judicial when it has some attributes of judicial provisions but not all. It has powers analogous to that of the law imposing bodies but it is not a court. Quasi-judicial bodies have powers of imposing laws on administrative agencies, instead of supervising over all types of disputes like courts. Their activity is restricted to the issues that concern the particular administrative agency. Their powers are usually limited to a particular area of expertise, such as financial markets (SEBI), human rights (NHRC), market practices (Competition Commission of India) etc. Their action may be appealed to a court of law. They act as an alternative justice system to lessen the burden of the courts.
Taking the example of the Central Information Commission - its powers and functions, as defined under the Right to Information Act of 2005 sufficiently indicate that it has adjudicatory powers quite akin to the court system. The Commission may be called upon to decide how far the right to information is affected where information sought for, is denied or whether the information asked for is ‘exempted’ or impinges upon the ‘right to privacy’ or where it falls in the ‘no go area’ of applicability of the Act.
Hence, the functions of these authorities are more aligned towards the judicial functions of the courts rather than mere administrative acts of the State authority.
11. On what grounds a people’s representative can be disqualified under the Representation of Peoples Act, 1951? Also mention the remedies available to such person against his disqualification.
The Representation of the People Act, 1951 provides for the conduct of elections to the Houses of Parliament and to the Houses of the State Legislature, the provisions regarding qualification and disqualification for the membership, and remedies of disputes in connection with such elections.
The Act of 1951 has laid down certain criteria for disqualifications. According to it, the person is disqualified if he/she:
- is found guilty of certain election offences or corrupt practices in the elections;
- is convicted for any offence resulting in imprisonment for two or more years (except for the detention under a preventive detention law);
- has failed to lodge an account of his/her election expenses within the time;
- has any interest in government contracts, works or services;
- is a director or managing agent or holds an office of profit in a corporation in which the government has at least 25% share;
- has been dismissed from government service for corruption or disloyalty to the State;
- has been convicted for promoting enmity between different groups or for the offence of bribery;
- has been punished for preaching and practising social crimes such as untouchability, dowry and sati.
The Act of 1951 also provides for the following remedies against disqualification:
- An election can be called in question only by an election petition. Election petitions are to be heard in the High Court with its appeal lying at the Supreme Court. They act as a mechanism of grievance redressal for the affected parties.
- Furthermore, on the question of whether a legislator is subject to any of the disqualifications the final authority to decide rests with the President (in case of members of Parliament) and the Governor (in case of members of State legislature).
- However, the President or Governor shall act according to the advice of the Election Commission of India.
- In case of any enquiry, the Election Commission is conferred the powers of a civil court for summoning and enforcing the attendance of any person or any evidence.
- Besides, after a legislator is disqualified, the Election Commission may, on certain grounds, remove any disqualification or reduce the period of any disqualification.
11. Whether the Supreme Court Judgment (July 2018) can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine. (2018)
Parliament via 69th Constitutional Amendment Act of 1991 inserted Article 239AA which made provisions for Legislative Assembly and Lieutenant Governor for NCT Delhi. Since the insertion of the new provisions the political tussle between Lt. Governor and elected government of Delhi has been observed regarding running of day to day business, stalling Council of Minister’s (CoM) decisions, and control over the bureaucratic machinery. Prima facie the tussle relates to the supremacy of the Union appointed Lt. Governor and the elected government. It becomes more palpable when different parties are in power at centre and at Union Territory of Delhi.
According to the Article 131 of the constitution of India, Supreme Court has original jurisdiction in any dispute between the Government of India and one or more States. Accordingly, the Supreme Court in its recent judgment of July 2018 provided for a solution to settle this political tussle.
- In relation to the issue of power to legislate and make policies, the Supreme Court held that by virtue of Clause (4) of Article 239AA, the elected government has the power to legislate on all issues except for subjects relating to land, police and public order, which is under the exclusive domain of Union Parliament.
- On issues of discord between the Lt. Governor and Council, the Supreme Court held that Lieutenant is not to act in a mechanical manner and stall CoM’s decision. Further in case of any difference, matter can be referred to President but it should be in exceptional cases and not a general rule of business.
The noble principles of democracy and deliberation have been worded by Supreme Court in this case, which provide ample amount of guiding light to settle the power tussle. But the solution to political tussle between the Lt. Governor and elected government of Delhi lies in discarding the anarchist or absolutist approach, focus on working harmoniously, settling disputes by discussion and keeping the interest of people above narrow political interest.
11. Explain the salient features of the constitution (One Hundred and First Amendment) Act, 2016. Do you think it is efficacious enough ‘to remove cascading effect of taxes and provide for common national market for goods and services’? (2017)
The Constitution (One Hundred and First Amendment) Act, 2016 provides for the introduction of Goods and Services Tax (GST) in India. GST is one of the biggest indirect tax reforms in India.
Salient Features of the Act
- It amalgamates a large number of Central and State taxes (like Central Excise Duty, Countervailing Duty, Service Tax, value added tax, octroi etc) into a single tax.
- It inserts a new Article 246A in the Constitution to give the central and state governments the concurrent power to make laws on the taxation of goods and services.
- Only the
centremay levy and collect an integrated GST in the course of inter-state trade – to be divided between the centreand the states.
- It provides for the constitution of a GST Council to develop a harmonized national market of goods and services.
- It makes provision for compensation to states for revenue losses arising out of the implementation of the GST.
Cascading Effect of Taxes
GST follows a multi-stage collection mechanism in which tax is collected at every stage and the credit of tax paid at the previous stage is available as a set off at the next stage of
transaction. This means that tax paid on inputs is deducted from the tax payable on the output produced (input tax credit). This is expected to mitigate the ill effects of cascading. However, the effectiveness of this will depend on the level of digital literacy of the traders and the efficient functioning of the GST Network (GSTN).
‘One Nation, One Tax and One Market’
GST aims to make India a common national market through:
- uniform tax rates and procedures, and
- removal of hurdles in inter-State transactions as only IGST will be applied on inter-State trade.
However, the efficaciousness of a uniform market is hindered by multiple tax slabs (0%, 5%, 12%, 18% and 28%), tax exemption to real estate, petroleum and alcohol, and exclusion of the informal or
unorganizedeconomywhich accounts for nearly 50% of India’s gross domestic product.
Any new reform is expected to experience a few teething problems. Since it is expected to be beneficial to the Indian economy in the long-term, the gradual course-corrections should
continue toensure that it is able to meet its intended objectives.
12. Parliament’s power to amend the constitution is limited power and it cannot be enlarged into absolute power”. In light of this statement explain whether parliament under Article 368 of the constitution can destroy the Basic structure of the constitution by expanding its amending power?
Article 368 of the Indian constitution gives the parliament the power to amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down by the law. The power to amend the constitution is necessary to overcome the challenges and to meet the demands for the nation’s growth and development.
However, in the process of amending the constitution under Article 368, the Parliament at times have breached the constitutional limits by transgressing the areas related to federal relation between Union and States, issues of Individual liberty and to a certain extent misused Article 368 itself. This is evident from amendments like 25th and 42nd Constitutional amendment Acts which has threatened the principle of constitutionalism.
Therefore, the Supreme Court intervened to create a harmonious balance between fundamental rights and the Directive Principles which eventually led to the emergence of the doctrine of ‘basic structure’ of the constitution.
The emergence and the application of the doctrine of ‘basic structure’ can be seen in light of following Supreme Court judgments:
- Kesavananda Bharati Case (1973): The Supreme Court held that Parliament’s power to amend the constitution is limited as it cannot alter the ‘basic structure’ of the constitution.
- A limited amending power is one of the basic features of the constitution and, therefore, the limitations on that power cannot be destroyed.
- Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitutional provisions which threatens the basic features or the Constitution itself.
- Minerva Mills v/s Union of India Case (1980): The Supreme Court struck down clauses (4) and (5) of Article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution.
- Chandra Kumar v/s Union of India (1997): The judgment held that every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
Thus, Parliament is restricted in its power to amend the Constitution so that the soul of Constitution as envisaged by founding father of India remains intact. It is to be noted that, the doctrine of basic structure does not undermine the legislative competence of the parliament, rather it helps in maintaining the supremacy of the constitution and upholding the constitutional spirit.
- Kesavananda Bharati Case (1973): The Supreme Court held that Parliament’s power to amend the constitution is limited as it cannot alter the ‘basic structure’ of the constitution.
12. How far do you agree with the view that tribunals curtail the jurisdiction of ordinary courts? In view of the above, discuss the constitutional validity and competency of the tribunals in India? (2018)
A tribunal is a quasi-judicial body established by an Act of Parliament or State Legislature under Article 323A or 323B to resolve disputes that are brought before it. It is not a court of law, but enjoys some of the powers of a civil court like issuing summons and allowing witnesses to give evidence.
Tribunals Curtailing Jurisdiction of Ordinary Courts
- Tribunal, being a quasi-judicial body, goes against the Doctrine of Separation of Powers and allows dilution of judicial mechanism - the exclusive arena of ordinary courts.
- The Supreme Court (SC) in Chandra Kumar case (1997) held that the power of the High Court (HC) under Article 226 and 227 to exercise judicial superintendence over the decisions of all courts and tribunals is a part of the basic structure of the Constitution. However, decisions of some of the tribunals, like National Green Tribunal continue to be taken on appeal only before the SC bypassing the HC as Court of Appeal, depriving them of their power of judicial review.
- Conferring a direct right of appeal to the SC from tribunals has changed the SC from a constitutional court to a mere appellate court and has also resulted in a backlog of cases.
- Appeals from SC would require SC to deal with the finer nuances of disputes under specialised areas of law from afresh. This is not ideal for a court of last resort.
Competency of Tribunals
Tribunals are dependent for appointment, tenure, funding, infrastructure and mode of removal on the Executive - the largest litigant in the country. This creates a conflict of interest situation, putting a question mark over their independence. However, tribunals play significant role in following ways:
- Their administrative members can better appreciate the technical nuances of the matters brought before them and can enhance the quality of justice delivery system.
- They have flexibility and adaptability in adjudication as they are not restrained by rigid rules of procedure.
- They are less formal, less expensive, and a faster way to resolve disputes.
- They also give much needed relief to ordinary courts of law, already overburdened with numerous suits.
Given their benefits, tribunals should be revamped keeping in mind the 272nd Law Commission report for restructuring of tribunals and the ruling of SC in Chandra Kumar Case, and bringing tribunals under independent agency. Hence, tribunals are meant to supplement ordinary courts and cannot supplant them.
12. Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy. (2017)
In a recent
Constitution Bench of the Supreme Court has expanded the scope of Fundamental Rights further by ruling that right to privacy is intrinsic to right to life and personal liberty under article 21 and is inherently protected under the various fundamental rights enshrined under Part III of the Indian Constitution. judgement
judgementwill amplify the scope of fundamental rights in the following ways-
- The concept of privacy is embedded in the right to liberty/dignity and that everything done in the exercise of freedom could be attributed to privacy. Therefore different kinds
of freedomguaranteed under article 19 will also get amplified and all the legislative acts and executive actions will have to meet the rigoursof rightto privacy.
- Similarly, right to equality under article 14 can only be exercised through liberty and freedom of choice.
- Sexual orientation is a part of the right to privacy and thus the
judgementmay cast doubts over the legality of Section 377 of the IPC. It may open up a new era of liberty for homosexual individuals and acceptance of same sexmarriage in India.
- Three elements are considered as the core to the right to privacy: Personal autonomy, the freedom to make choices and the right to determine what happens with information about oneself. It will question the Aadhaar scheme, being enforced by the government to avail different kinds of public services. Although the constitutional validity of the Aadhar scheme is yet to be decided by the Constitutional Bench of the Supreme Court.
Howeverit should not be forgotten that no fundamental rights are absolute in India and therefore rightto privacy will also be guided by the same. Different limitations hasbeen imposed by the constitutionitself on the exercise of the fundamental rights. Thus rightto privacy will be tested on case-to-casebasis. However, theof the Supreme Court will open a new path for securing the privacy, liberty, equality and dignified life for the common man. It will also be helpful in creating a robust legal framework for privacy in India. judgement
- The concept of privacy is embedded in the right to liberty/dignity and that everything done in the exercise of freedom could be attributed to privacy. Therefore different kinds
13. "The reservation of seats for women in the institutions of local self-government has had a limited impact on the patriarchal character of the Indian Political Process." Comment.
A million women have been elected at the village, block and district levels, following the 73rd Constitutional Amendment which reserved 33 percent of seats in Panchayati Raj Institutions for women. The process of decentralization has provided representation but representation has not always led to their participation in the Indian political process.
Patriarchal Character of Indian Political Process
- The practice of “Sarpanchpatis”: The effective political power and decision making are wielded by husbands or other male relatives of elected women representatives. This makes the intended empowerment of women through reservation infructuous.
- Rubber stamps: Most of these women are just rubber stamps with the men in their house- can be the husband, father or the son - running the show. They also work as proxies for rural elites hence restricting their autonomy.
- Lack of exposure of women themselves to politics and the absence of any experience in exercising their political responsibilities hinder their participation. Since most women are illiterate and do not have any training of handling technical issues and financial deals, they have no option but to take assistance from male family members.
- Stereotypes and traditional norms: This relegates women to the domestic sphere and dissuades them to engage in public affairs. Caste and class factors also play a key role that restrict women to take leadership roles.
- The burden of household responsibilities, purdah (veil) system, etc adversely affect their performance.
However, there have also been many positive impacts of women representation:
- Women have done considerable development work on the ground, for example, women sarpanch of Dhani Miyan Khan Gram Panchayat in Haryana built a training centre for women and ensured that every village child went to school.
- Elected women representatives are also more accessible than their male counterparts who are often not around.
- It has been seen that though women lacked confidence initially but exposure to local politics gave them new confidence to take independent decisions and not become a proxy of male candidates.
- There has been a marked improvement in social development parameters such as education and health where panchayats are led by women.
- Capacity Building of Elected Women Representatives (EWR) and Functionaries of PRIs: This would prepare women to discharge multiple roles, enabling them to raise local priorities to the planning process.
- Strengthening women’s groups and building networks: Formation of women’s forums and networks to develop a sense of solidarity amongst the women.
- Institutionalisation of mechanisms to strengthen the capacity building of EWRs to better understand and perform their functions.
- Mobilisation of community and strengthening the processes of constituency building to enable women to better articulate their voices and participate in the electoral process.
The reservation of women at the local level has had various social and developmental impacts like promotion of nutrition, sanitation drive, behavioral changes, etc. Also, women are more aware of their rights now which could be seen in women voters outnumbering men voters in states like Bihar. However, women’s participation in politics in a true sense is still to be realized. Their participation in the political process is a matter of human right and a key in deepening our democracy. It would also help India in realizing the SDG-5 (Sustainable Development Goal) that aims to end gender inequality in all forms.
13. The Indian Constitution has provisions for holding a joint session of the two houses of the Parliament. Enumerate the occasions when this would normally happen and also the occasions when it cannot, with reasons thereof. (2017)
The Parliament of India is bicameral and concurrence of both houses is required to pass any bill. However, sometimes there are situations of deadlock between the upper house i.e. Rajya Sabha and the lower house i.e. Lok Sabha. Article 108 of Indian Constitution has the provision of
jointsitting of both the houses of the Parliament under these special circumstances. President summons the joint sitting which is presided by the Lok Sabha speaker.
Occasions when this would normally happen
- If after a Bill has been passed by one House and transmitted to the other House and-
- The Bill is rejected by the other House; or
- The Houses have finally disagreed as to the amendments to be made in the Bill; or
- More than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it.
Exceptionto joint sittings
Not all bills can be referred to a joint session of Parliament. There are two exceptions.
A. Money Bill
Under the Constitution of India, money bills require
approvalof the Lok Sabha only. Rajya Sabha can give suggestions to Lok Sabha, which it is not required to accept. Even if Rajya Sabha doesn't pass a money bill within 14 days, it is deemed to have been passed by both the Houses of Parliament after expiryof the above period. Therefore there is no need of summoning a joint session in the case of moneybill.
B. Constitution Amendment Bill
As per Article 368, the Indian Constitution can be amended by both houses of parliament by 2/3rd majority. In case of disagreement between both houses, there is no provision to summon
jointsession of parliament.
Dowry Prohibition Act, 1960, Banking Service Commission Act, 1977 and POTA, 2002 were the few Bills that got passed through the joint session of Parliament.
14. “The Attorney-General is the chief legal adviser and lawyer of the Government of India.” Discuss.
The Constitution under Article 76 has provided for the office of the Attorney-General for India (AGI). He is appointed by the President and holds the office during the pleasure of the President. He must be a person who is qualified to be appointed as a judge of the Supreme Court.
As the chief legal adviser of the Government of India, the Attorney-General has the following duties:
- To give advice to the Government of India on legal matters, which are referred to him by the President.
- To perform other duties of a legal character that are assigned to him by the President.
- To discharge the functions conferred on him by the Constitution or any other law.
The AGI is the highest law officer in the country and acts as the lawyer of the Government of India. Through a notification of 1950, he has been assigned the following duties by the President:
- To appear on behalf of the Government of India in the Supreme Court and high courts.
- To represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
Along with these duties, the AGI also has the right of audience in all courts in the territory of India. He also enjoys all the privileges and immunities that are available to a member of Parliament.
However, the Attorney-General is not the full-time counsel of the Government. He does not fall in the category of government servants and he is not debarred from private legal practice. But, he should not advise or hold a brief against the Government of India and he should not defend accused persons in criminal prosecutions without the permission of the Government of India.
Thus, the duties and privileges of the AGI, combined with the limitations imposed on him, make him the chief legal adviser and lawyer of the Government of India. Nevertheless, the separate law minister in the Central cabinet to look after legal matters at the government level, to some extent, gives the office of AGI a subordinate position.
14. How is the Finance Commission of India constituted? What do you know about the terms of reference of the recently constituted Finance Commission? Discuss. (2018)
Article 280 of the Constitution of India provides for a Finance Commission (FC) consisting of a chairperson and four other members. They are appointed by President, every 5th year or at such earlier time as he considers necessary.
The chairperson should be a person having experience in public affairs and the four other members should be from amongst the following:
- a judge of high court,
- a person with knowledge in governments finance and accounts,
- a person who has wide experience in financial matters and administration,
- a person with specialised knowledge in economics.
The Union Cabinet recently approved the setting up of the 15th Finance Commission with N.K. Singh as its Chairman for the period 2020-25.
Terms of Reference of 15th FC and Issues
The Terms of Reference of 15th FC has proposed the performance based incentives for states but some of the Terms of Reference has led to concerns among various state governments:
- Use of Census 2011 for distribution of tax revenue between centre and states:
- Previously FCs were using 1971 Census, but using 2011 Census might lead to smaller share of revenue for some states, mainly Southern States, which have stabilized their population over the period.
- Progress made in promoting ease of doing business:
- This has raised concerns as this does not consider geographical limitations of a state.
- Control over expenditure on populist measures by states:
- This appears to challenge the decision-making ability of state government. What may appear to be a populist measure, can also be a necessity in a particular state.
- Examine whether revenue deficit grants should be provided at all:
- Though in line with the Fiscal Responsibility and Budget Management Act, 2003, which recommends zero revenue deficit, it is important for states with persistent deficits.
- Progress made by states in sanitation, solid waste management and bringing in behavioural change to end open defecation.
- Achievements of states in implementation of flagship schemes of Government of India, disaster resilient infrastructure, sustainable development goals, and quality of expenditure.
The Constitution envisages the FC as the balancing wheel of the fiscal federalism in India. While it is expected to ensure that centre is not fiscally constrained given its role in key national public goods such as defence, at the same time it should give due share to state governments which play a major role in the Indian socio-economy.
Term of Reference (TOR) - The notification announcing constitution of each FC comprises terms that list out the Commission’s work and considerations while making recommendations, is called the Terms of Reference.
14. To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What are the suggested reforms and how far are they significant to make democracy successful? (2017)
Electoral reform basically aims at introducing an electoral system of conducting free and fair elections. Keeping in view the necessity to strengthen democracy the Election Commission suggested significant reforms:
- Constitutional protection for all members of the election commission of India: ECI suggested that other election commissioners should also be protected in the same manner as Chief Election Commissioner is protected under clause (5) of Article 324.
Budgetof the commission to be 'charged': Presently, the administrative expenditure of the Commission is a voted expenditure. The Commission sent a proposal that the expenditure of the Commission should be charged/ non-votable expenditure on the Consolidated Fund of India similar to other constitutional bodies.
- Independent Secretariat: The Commission proposes that it should have an independent Secretariat
alongthe lines of the Lok Sabha, Rajya Sabha and Registries of the Supreme Court and High Courts.
- Proxy voting: Section 60 of The Representation of the People Act, 1951 should be amended to provide overseas electors the alternative option of proxy voting or postal ballot voting.
- The Commission proposes that making of any false statement or declaration before the Election Commission should be an electoral
- The Commission has proposed amendments and suggested dividing the seats in the Council of States and State Legislative Councils into three categories and specifying the term for each category in such a way that biennial retirement of 1/3rd of the members would be ensured.
- Use of totalizer for counting of votes: EVM totalizer can count votes of multiple Electronic Voting Machines (EVMs) simultaneously. This way the results of votes in a group of EVMs can be taken without ascertaining the result in individual EVM corresponding to
- Persons charged with cognizable
offencesshall be de-barredfrom contesting in the elections, at the stage when the charges are framed by the competent court provided the offenceis punishable by imprisonment of at least 5 years, and the case is filed at least 6 months prior to the election in question.
- Constitutional protection for all members of the election commission of India: ECI suggested that other election commissioners should also be protected in the same manner as Chief Election Commissioner is protected under clause (5) of Article 324.
15. Individual Parliamentarian’s role as the national law maker is on a decline, which in turn, has adversely impacted the quality of debates and their outcome. Discuss.
The Rights of Transgender Persons Bill, 2014 was introduced as a private member’s Bill by the Dravida Munnetra Kazhagam MP Tiruchi Siva, and passed by the Rajya Sabha in April 2015. It was the first time in four decades that the Rajya Sabha had passed a private member’s Bill. The Bill brought into picture the plight of transgenders in the country and mainstreamed the issue in the public debate.
Ministers or parliamentarians representing a political party are often bound by populist decision making, election manifestos and the ideology that governs the party. Individual parliamentarians or the private members are free from such boundations and offer a more fertile ground, on the floor of the Parliament, for dissent and debate around various issues that affect the nation.
However, the Individual Parliamentarian’s role as national law maker has been on a decline of late. From 2014-2018 about 900 private member Bills were introduced in the Parliament but not even 2% of these bills were discussed.
In a mature parliamentary system, all ideas should be debated and decided upon. While the legislative ideas piloted by the government get discussed, the ideas of individual MPs get accumulated and more than often remain ignored.
Reasons for the Decline
- A successful passing of a private member’s Bill is often perceived by many as incompetence on the part of the government and intrusion into the respective Ministry’s domain. If such a legislation is seen getting support in Parliament, the government requests the MP to withdraw it and promises to introduce it as a Government Bill instead.
- Without support from the ruling party or a party that commands majority, it becomes impossible to pass a private member’s Bill especially in the Lok Sabha.
- There has also been a shift to law-making by ordinance, which completely bypasses the formal route of debate and discussions. For e.g., the promulgation of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018.
- Even individual parliamentarians are obliged to toe the party line, through regulatory frameworks like the Anti-Defection Act. This discourages any deviation from the party decision and takes out the possibility of diverse perspectives that parliamentarians as individuals can offer.
- Quality of the elected Individual Parliamentarians also affect the quality of debate and discussions in the house. According to the Association for Democratic Reforms’ report (2014), 30% of sitting MPs and MLAs were facing some form of criminal proceedings, and only 0.5% were convicted of criminal charges in a court of law.
- Currently, a large part of the voting population views their representatives as their problem solvers. So they are willing to vote for a candidate who can get things done ignoring his involvement in a crime.
- The Anti-Defection Act needs to be recast, and used only in the most exceptional circumstances, while allowing MPs greater freedom of self-expression.
- The UK, for example, has the concept of a free vote allowing MPs to vote as they wish on particular legislative items. This in effect allows voting in line with the parliamentarians’ conscience, judgement and interests of her electorate.
- Research staff and resources should be increased for Individual Parliamentarians as the availability of expert in-house advice can further boost their ability to contribute to the national law making process.
- People’s perception of what they want from their representative should change so that MPs can be viewed as lawmakers with character and integrity. This requires a fresh pool of candidates who can appeal to the voters by their abilities as good lawmakers with innovative ideas.
- However, apart from paying respect and giving encouragement to the legislations framed by the Individual Parliamentarians, several other issues also need to be addressed to improve the overall quality of discussions in the Indian Parliament and in governance in India. For eg, Members of Parliament have to address their low attendance and increase their engagement in the discussions. Similarly they have to utilise the limited parliamentary time for proceedings judiciously without unnecessary disruption.
15. Is the National Commission for Women able to strategise and tackle the problems that women face at both public and private spheres? Give reasons in support of your answer. (2017)
National Commission for Women is a statutory organization formed in 1992. It is mandated to review the constitutional and legal safeguards for women; recommend remedial legislature measures; facilitate redressal of grievances and advise the Government on all policy matters affecting women.
Since its inception, the Commission has occupied a considerable space in protecting the rights of
weakersection of the population on gender lines. In the past, it has proposed the amendments to the acts such as IPC, 1860 to curb the sale of minor girls, Hindu Marriage Act 1955 to omit epilepsy as grounds for divorce, Dowry Prohibition Act in order to bring the problems of Dowry deaths in to the lime lightand deal with them appropriately etc. It also proposed the Protection of Women from Domestic Violence Bill which was passed in 2005.
In recent times, the Commission has adopted the multi-pronged strategy of assisting women in redressal of their grievances, facilitating speedy delivery of justice to women by
organisingParivarikMahila Lok Adalats in different parts of the country as well as launching the awareness campaign regarding women’s rights. Recently, the Commission set up several inquiry committees to combat problems faced by women such as in the case of police atrocities and misbehavior with girl students of Kurukshetra University, rape case of a womenin Safdarjung Hospital, gangrape of 15 years old girl at Lucknow etc. Further, its Research Cell looks into the emerging problems of Indian women due to discrimination and gender bias.
However, there are also examples when the Commission has not been able to come up to the expectations of women in India. For example - on the other serious issue of
useof sexual violence against women by police and army personnel in the highly militarised areas of Jammu and Kashmir, north-east and now Chhattisgarh, there has been a silence on this on the part of the commission. Also, the commission has been limited in its fight for empowering Indian women due to shortcomings in its composition and structure:
- It only recommends amendments and submits reports which are not binding on the government
- It lacks autonomy in terms of appointment of its own members.
- It is depended on the government for funding which compromises its independence.
- Its jurisdiction is not applicable to Jammu and Kashmir where the violence against women has increased in the recent past.
Thus there is a need to safeguard the political autonomy of NCW by replacing the current nomination system with a transparent, democratic and non-partisan selection process for members and chairperson of the commission. It should also be given the wider power to enforce its recommendations and provide immediate relief to the victim of women discrimination and violence.