Indian polity

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.

The local self government system (LSGs), having an important role in local planning, development and administration, 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-up approach. 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 (2^nd 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 organisation building requirements as also the professional and skills upgradation of individuals associated with these bodies.
• Putting in place a well-delineated activity mapping for LSGs.

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.

Recently the Supreme Court  struck down 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.

However this judgement faced criticism based on following arguments-

• 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 judgement failed 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 judgement that all is not well within the opaque  collegium system 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 appointment process. With evident loopholes in the collegium system, time has come for a review of the verdict by a larger bench.

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.

Recently the debate over simultaneous holding 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 79^th 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 bound State. 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 desirable provided 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.

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.

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 making process. 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 and gender – 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 to any identities or entities – but were issue based, yet led to legislative action at the Centre.

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.

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.

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.

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.

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 centre may levy and collect an integrated GST in the course of inter-state trade – to be divided between the centre and 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 unorganizedeconomy which 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  to ensure that it is able to meet its intended objectives.

In a recent judgement 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.

The judgement will 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  freedom guaranteed under article 19 will also get amplified and all the legislative acts and executive actions will have to meet the rigours of right to 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 judgement may 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 sex marriage 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.

However it should not be forgotten that no fundamental rights are absolute in India and therefore right to privacy will also be guided by the same. Different limitations has been imposed by the constitution itself on the exercise of the fundamental rights. Thus right to privacy will be tested on case-to-case basis. However, the  judgement of 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.

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 joint sitting 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. 

Exception to 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 approval of 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 expiry of the above period. Therefore there is no need of summoning a joint session in the case of money bill.

B. Constitution Amendment Bill

As per Article 368, the Indian Constitution can be amended by both houses of parliament by 2/3^rd majority. In case of disagreement between both houses, there is no provision to summon joint session 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.

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.
  
• Budget of 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 along the 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 offence.
  
• 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 polling booth.
  
• Persons charged with cognizable offences shall be de-barred from contesting in the elections, at the stage when the charges are framed by the competent court provided the offence is punishable by imprisonment of at least 5 years, and the case is filed at least 6 months prior to the election in question.

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 weaker section 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 light and 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 organising ParivarikMahila 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 women in 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 use of 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.