61 Solved Questions with Answers
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.
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. Which steps are required for constitutionalization of a Commission? Do you think imparting constitutionality to the National Commission for Women would ensure greater gender justice and empowerment in India? Give reasons.
Constitutionalisation involves the attempt to subject governmental action within a designated field to the structures, processes, principles, and values of the ‘Constitution’.
Steps to Constitutionalise a Commission
- Constitutionalisation of a Commission will require the passing of a Constitutional Amendment Bill under Article 368.
- The Bill is passed in each House by a majority of the total membership of that House present and voting.
- After receiving the assent of the President the Constitution shall stand amended in accordance with the terms of the Bill.
- Example: 102nd Constitution Amendment Act, 2018 provides constitutionalstatusto the National Commission for Backward Classes (NCBC). The Act inserted new Articles 338 B and 342 A.
Benefits of Imparting Constitutional Status the National Commission for Women (NCW)
- Power of Civil Court: It will provide the National Commission for Women (NCW) with the power of a Civil Court enabling NCW to safeguard women’s interest more effectively.
- Mandatory Tabling of Reports: Constitutional status will make the discussion of NCW reports by Parliament binding, thus enhancing the reach of women’s voice.
- Autonomy: It will provide NCW greater autonomy to act and regulate its own procedures.
However, if we study the functioning of other Constitutional bodies like NCST or NCBC the reality projects a different picture.
- Advisory Role: Their recommendations are advisory and they cannot issue binding directions or injunction orders and their reports could not be mandatorily enforced and executed.
- Adjudicatory Role: The Commissions are not adjudicatory bodies and their orders are not an alternative to the hierarchical judicial system envisaged under the Constitution.
- Other Constraints: Inadequate funds and manpower, political interference are the limitations that reduce the effectiveness of Commissions.
Granting constitutional status the NCW helps in ensuring greater gender justice and empowerment. But it will also require steps like mandatory execution of injunctions, proper funding and upgrading its status to the adjudicatory body.
15. Do Department-related Parliamentary Standing Committees keep the administration on its toes and inspire reverence for parliamentary control? Evaluate the working of such committees with suitable examples.
Department-Related Parliamentary Standing Committees comprise 31 members (21 from Lok Sabha and 10 from Rajya Sabha) to be nominated by the Speaker, Lok Sabha and the Chairman, Rajya Sabha respectively. The term of office of these Committees is not more than one year.
The Committees have often been found keeping the administration on its toes thereby setting a benchmark of parliamentary control. This can be ascertained from the functions of such Committees, viz.:
- They examine the demands for grants of the related ministries/departments and report thereon.
- They verify bills, belonging to the related ministries/departments, referred by the Chairman or the Speaker.
- Laying importance on the long-term plans and policies guiding the working of the executive, these committees give necessary direction, guidance and inputs for broad policy formulations.
- They facilitate input from experts and those who may be directly affected by a policy or legislation.
Nevertheless, the functioning of the Committees is marred with several issues, such as:
- The meetings happen behind closed doors leading to the issue of transparency.
- The Committees’ suggestions are not enforceable in nature.
- It is not necessary to route all the bills to the Committees. Thus, proper scrutiny of all the bills is not guaranteed.
- The Committees can hardly be considered a specialised body as their tenure is just of one year.
Thus, though it is comparatively less difficult to examine an issue in depth by a committee of 30 than by an assembly of 700, the issues faced by these Committees limits their scope.
15. Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct.
The Election Commission of India (ECI) is an autonomous constitutional body responsible for administering Union and State election processes in India. In the context of free and fair elections, Model Code of Conduct (MCC) plays a crucial role.
The Model Code of Conduct is a set of guidelines issued by the Election Commission to regulate political parties and candidates prior to elections. MCC is operational from the date on which the election schedule is announced until the date of result announcement.
Evolution of Model Code of Conduct
- The origins of the Model Code of Conduct lie in the Assembly elections of Kerala in 1960, when the State administration prepared a ‘Code of Conduct’ for political factors.
- In the Lok Sabha elections of 1962, the Election Commission of India circulated the code to all recognized political parties and State Governments, and it was followed.
- In 1991, the Election Commission decided to enforce the Model Code of Conduct more strictly because of repeated flouting of the election norms and continued corruption.
Role of ECI in the Enforcement of MCC
- As part of its mandate to conduct free and fair elections under Article 324 of the Constitution, the Election Commission ensures that ruling parties at the Centre and in States adhere to the code.
- In case of electoral offences, malpractices, and corrupt practices like inducements to voters, bribery, intimidation or any undue influence, the Election Commission acts against violators.
- The Election Commission has devised several mechanisms for efficient enforcement of MCC such as:
- Joint task forces of enforcement agencies and flying squads.
- Introduction of the c-VIGIL mobile app through which audio-visual evidence of malpractices can be reported.
Model Code of Conduct does not have any statutory backing, it has come to acquire strength in the past decade because of its strict enforcement by the Election Commission. The various technological advancement has presented new challenges in the path of ensuring fair elections, but initiatives took by the Election Commission regarding the enforcement of model code of conduct seem to have been fruitful.
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.
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. “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. Rajya Sabha has been transformed from a ‘useless stepney tyre’ to the most useful supporting organ in past few decades. Highlight the factors as well as the areas in which this transformation could be visible.
The Constituent Assembly favoured Rajya Sabha, as a vast country like India with immense diversities required a platform for the states at Parliament to raise their voices and to check legislation passed in haste. Rajya Sabha shares an unequalstatuswith Lok Sabha in terms ofmatterslikemoney bill, appropriation bill, no-confidence motion, etc. but its position is special as:
- It can authorise the Parliament to make a law on a subject enumerated in the State List (Article 249).
- Rajya Sabha can authorise the Parliament to create new All-India Services common to both the Centre and States (Article 312).
- It checks hasty, defective, careless and ill-considered legislation made by the Lok Sabha by making provision of revision and thought.
- It maintains the federal equilibrium by protecting the interests of the states against the undue interference of the Centre.
Rajya Sabha has emerged as the most useful supporting organ in the past few decades because of several factors:
- Cooperative Federalism: With the strengthening of democracy in India, the spirit of cooperative federalism has pervaded. It has obliged the Government to appropriate the advice of the Rajya Sabha.
- Rise of Regional Parties: Since the 1980s, a rise in the popularity of regional parties was witnessed. It allowed regional parties to have a greater share in the membership of Rajya Sabha, thus enhancing the influence of Rajya Sabha while passing a Bill.
- Coalition Governments: The 1990s brought a new era in Indian polity, an era of coalition government. It required a wider consensus in the enactment of statutes.
- Expert or Informed Opinion: Requirement of expert or informed opinion in matters like Personal Data Protection Bill, Surrogacy Bill, etc. have made the role of Rajya Sabha indispensable.
The transformation can be seen in:
- Abrogation of Article 370, where the support of Rajya Sabha was vital for the benefit of people of Jammu and Kashmir and Ladakh.
- GST reforms was another subject where Rajya Sabha’s role was proactive. States’ support was essential in the implementation of the reforms.
- The passage of POTA Act in 2002 whereby due to objections of Rajya Sabha joint sitting of Parliament was called under Article 108 to discuss the provisions.
Even though the ups and downs of Indian politics, the Rajya Sabha has remained a vanguard for political and social values, a melting pot of cultural diversity. It has helped in assimilating the aspirations of the people of India and protecting their interests.
14. Explain the constitutional provisions under which Legislative Councils are established. Review the working and current status of Legislative Councils with suitable illustrations.
India follows a bicameral system at both the Centre and State level. Under this system, the State’s legislature is divided into two parts - Legislative Assembly or Vidhan Sabha and Legislative Council or Vidhan Parishad.
The Legislative Council is the upper house of the State. Its institution is outlined in Article 169 of the Constitution. Presently, only Andhra Pradesh, Karnataka, Telangana, Maharashtra, Bihar, and Uttar Pradesh have Legislative Councils.
- As per Article 169, the Parliament can abolish a Legislative Council (where it already exists) or create it (where it does not exist) by a simple majority, if the Legislative Assembly of the concerned State, by a special majority, passes a resolution to that effect.
- As per Article 171 of the Indian Constitution, the total number of members in the Legislative Council of a State shall not exceed one-third of the total number of members in the Legislative Assembly.
- The members of the Council are either nominated by the Governor of the state or are indirectly elected. Of the total number of members of the Legislative Council:
- 1/3 of members are elected by electorates consisting of the members of local authorities,
- 1/12 are elected by electorates consisting of graduates residing in the state,
- 1/12 are elected by electorates consisting of persons engaged in teaching,
- 1/3 are elected by the members of Legislative Assembly and
- the remaining are nominated by the Governor.
- 1/3 of the members of Legislative Council retire every 2 years.
- Legislative: Non-money bills can be introduced in the Legislative Council. When a non-money bill, passed by the Legislative Assembly, comes to the Legislative Council, the latter can pass it or can send it back with amendments to the Legislative Assembly for its reconsideration.
- Financial: The Legislative Council has only limited powers in financial matters. A money bill cannot be introduced in the Legislative Council. It can be introduced only in the Legislative Assembly.
- Control over Executive: The Legislative Council does not have much control over the executive. The Council of Ministers is responsible to the Legislative Assembly. Even if the government is defeated in the Legislative Council, it is not bound to resign.
- Miscellaneous: The Legislative Council elects its own Chairman and Deputy Chairman. The Council discusses technical matters as there are experts as its members.
The legislative power of the Councils is limited. They lack a constitutional mandate to shape non-financial legislation. Besides, the Assemblies can override suggestions/amendments made to legislation by the Council. Critics of Legislative Councils state that the Councils act as a burden on the State budget and are used to park leaders who have not been able to win an election.
Nevertheless, the Legislative Councils serve some useful purposes. They act as a check against hasty legislation passed by the Assemblies. They also accommodate election shy talent. That is, the elderly, experienced and sober individuals, who cannot-bear the ordeal of electioneering get onboarded to the Council. For example, Bihar Chief Minister is a member of the Legislative Council.
14. Critically examine the procedures through which the Presidents of India and France are elected.
France is one of the earliest republics of the modern world. India adopted the word republic from France constitution. President of India and President of France are executive head of the state. As the executive head of the state both the offices enjoy certain ceremonial positions as commander-in-chief of their respective armed forces.
Commonalities between election procedure of President of India and France
- Election is held after every 5 years.
- There are rounds of election procedures till the candidate secures absolute majority.
- Both the Presidents have to secure absolute majority though from different college of electors to win the election.
Dissimilarities between election procedure of President of India and France
- The President of France is elected by universal adult franchise. On the other hand, the President of India is elected by the elected members of Parliament and State Legislative Assemblies.
- The nomination of President of India requires 50 electors as proposers and 50 electors as seconders, whereas President of France requires 500 elected officials as proposers.
- The French presidential election is split up into two rounds. In the first round, people can vote for any of the candidates that have gathered the 500 signatures. If no candidate receives an absolute majority, then in second round candidate can vote for only remaining candidate who emerged first and second in first and second round.
- There is no procedure of security deposits in French Presidential elections unlike Indian Presidential election.
Thus, we can say that there are some similarities as well as dissimilarities in election procedure of Presidents India and France. However, the procedure of election may be different but their role as head of the respective republics to embark on the road of growth and development of nation and their ability to maintain social harmony in diverse nation are equally similar.
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.
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 strength and sustenance of local institutions in India has shifted from their formative phase of ‘Functions, Functionaries and Funds’to the contemporary stage of ‘Functionality’. Highlightthe critical challenges faced by local institutions in terms of their functionality in recent times.
“When the panchayat raj is established, public opinion will do what violence can never do.” – Mahatma
Gandhi Local Self Government is the management of local affairs by such local bodies who have been elected by the local people. The history of local institutions in India goes back to 1952 when the Community Development Programme (CDP) was introduced.
Formative Years of Local Institutions
- In the developing phase of the local institutions, the debate was around what functions shall be allotted to these institutions, who will execute these functions and how the funds will be mobilised for their implementation.
- In 1957, Balwant Rai Mehta Committee reviewed the working of the CDP. The committee suggested a threetier PRIs, namely, Gram Panchayats at the village level, Panchayat Samiti at the block level, and Zilla Parishad at the district level.
- In 1977, Ashok Mehta Committee recommended compulsory power of taxation and in 1985 the GVK Rao Committee recommended assigning an role with respect to planning, implementation and monitoring of rural development programmes.
- The Gadgil Committee in 1988 made comprehensive recommendations on local institutions. Based on its recommendations, 73rd and 74th Constitutional Amendments were passed.
- It provided a three-tier system for local government and assigned them constitutional status.
- Gram Sabha is the foundation of the Panchayati Raj system.
- All members of local bodies shall be directly elected by the people and seats shall be reserved for SC/ST and women at all three levels.
- State Election Commission to supervise elections.
- Endowment of power and functions, such as preparation of plans for economic development and social justice.
- Formation of State Finance Commission every 5 years to review the financial provisions of local bodies.
- The above amendments have been able to address the functions, functionaries and funds debate. However, in recent times strength and sustenance of local bodies are facing functionality related issues.
Functionality related challenges
- Structural Deficiencies: PRIs suffer from structural deficiencies i.e. inadequate secretarial support and lower levels of technical knowledge which restricted the aggregation of bottom-up planning.
- Adhocism: There is a presence of adhocism i.e. lack of clear setting of agenda in Gram Sabha, Gram Samiti meetings and no proper structure.
- Proxy Representation: Though women and SCs/STs have got representation in PRIs through reservation mandated by 73rd amendment, proxy representation, for example, in case of women through Panch-Pati, acts as a major hurdle.
- Overlapping Functions: The issue of ambiguity in the division of functions and funds has allowed concentration of powers with the states and thereby restraining the elective representatives who are more aware and sensitive to the ground level issues to take control.
Local institutions have been able to strengthen democracy at the root level. But as the institutions have evolved, new challenges have emerged. Their rectification will require raising awareness among masses and their representatives, clear demarcation of responsibility and a system of accountability.
13. Analyse the distinguishing features of the notion of Right to Equality in the Constitutions of the USA and India.
Both the United States and India are the largest democratic countries in the world, based on federalism, in their political structure. Democracy can only thrive and flourish where the individuals in society are treated equally and without discrimination. Thus, it was necessary to incorporate provisions in the Constitution to remove the hurdle of existing social and economic inequalities and enable the diverse communities to enjoy the rights and liberties guaranteed under the Constitution.
The right to equality means the absence of legal discrimination on grounds of caste, race, religion, sex, and place of birth and ensures equal rights to all citizens.
- Right to Equality in India: In India, Chapter III named as “Fundamental Rights” was added in the Constitution by the Constituent Assembly. The Constitution follows both the British model of ‘Equality before Law’ and American model of ‘equal protection of law’ (Article 14). It also provides for both civil-legal as well as socio-economic equality. It also highlights substantive equality. The Constitution also provides for affirmative action to ensure equality (Article 16). It focuses on ensuring equality of outcomes along with equality of opportunity. The right also prevents discrimination and abolishes untouchability (Article 17).
- Right to Equality in the US: The original Constitution did not prevent discrimination. The US derived Right to Equality from Declaration of Rights and the Bill of Rights. It was inserted in the Bill of Rights through fourteenth Amendment in year 1868. The US follows the concept of ‘equal protection of law’ which highlights the equal treatment under equal circumstances. The right majorly emphasises on civil and legal equality.
The Right to Equality is considered a basic feature of both the Constitutions and plays a key role in achieving social and economic justice in our society where upliftment of certain classes is considered necessary for our country to flourish. The emphasis is on the fundamental unity of individuals by providing equal opportunities and treatment to all.
13. "While the national political parties in India favour centralisation, the regional parties are in favour of State autonomy." Comment.
Centralisation means concentration of decision making and planning at one unit so as to bring in uniformity in the process. It often means consolidation of power or authority. State autonomy refers to degree of control over resources independent of any central authority. There has been tussle between the national and regional political parties over issues such as development, representation at forums and finances.
Political parties are recognised as national parties or state parties depending upon their performance in general election of Lok Sabha or Vidhan Sabha. The conditions for being listed as a national or a state party are specified under the Election Symbols (Reservation and Allotment) Order, 1968.
National Political Parties favour centralisation
- To achieve uniformity in goals and objectives of political parties
- To have better control over party cadre members
- To achieve uniformity in programme of political parties
- To better target the public at large
- To better their chances of winning upcoming elections
However, centralisation is generally associated with annihilation of regional parties and regional issues and gives prime importance to issues concerning national security. It often demands obedience, overlook accountability and transparency. Thus, centralisation should not overlook the regional issues like development of region, employment etc.
Regional parties favour state autonomy
- Regional parties are formed on the lines of identity, statehood, ethnicity, development.,
- They are in close proximity with the local issues, needs and demands
- They are against the bureaucratic bottleneck
- To fasten the decision making at ground level
- To better mobilise resources according to the need of population
- To better their ambition of becoming national parties
Regional parties in India are of opinion that regional issues are different from national issues. However, rise in regional parties has also led to another problem of horse trading of members which has pushed the state’s demand for autonomy and development at backseat for certain political gains. This is unhealthy for any democracy. Thus, it is necessary that demand of regional parties are aligned with unity and integrity of India.
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
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. 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. Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities.
The doctrine of separation of power divides the state into three branches – the legislative, executive and judicial – and gives each the power to fulfil different tasks.
- The executive is vested with the power to make policy decisions and implement laws.
- The legislature is empowered to issue enactments and review the functioning of the executive.
- The judiciary is responsible for adjudicating disputes. The judiciary also exercises judicial review over the executive and legislative action (Article 32 and 226).
- The separation of powers is important because it provides a vital system of ‘checks and balances’.
- Making law is the domain of the legislature. But occasionally, the judiciary has issued guidelines and made policies in the cloak of judgments, assuming the power of the legislature.
- For example, in Arun Gopal case (2017), the Supreme Court fixed timingsfor bursting Diwali fireworks, although there are no laws to that effect.
- In M.C. Mehta case (2018), the court annulled the Rule 115(21) of the Central Motor Vehicle Rules, 1989, when it directed that only BS-VI vehicles can be sold after March 30, 2020.
PIL and Judiciary
- Public Interest Litigation (PIL) is filed for the protection of “Public Interest”, such as pollution, road safety, constructional hazards etc.
- The judiciary has been compelled to intervene in the domain oflegislature and issue guidelinesto the executives due to several reasons such as:
- When the legislature fails to make the necessary legislation to suit the changing times.
- When authorities fail miserably to perform their administrative functions sincerely.
- When the fundamental rights of the people are threatened by the state.
- For instance, in Vishaka case (1997), the judgement recognized sexual harassment as a violation of the fundamental rights.The guidelines also directed for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
- In K. Puttaswamy case (2017), the Court pronounced that the right to privacy is intrinsic to the right to life and provided the three step test to decide on the constitutionality of any law infringing privacy.
Thus, though Judicial Legislation is antithetical to the doctrine of separation of powers, sometimes it becomes justifiable for the judiciary to issue guidelines to executive authorities. Nevertheless, with a view to see that judicial activism does not become judicial adventurism, the courts must act with caution and proper restraint.
12. Though the Human Rights Commissions have contributed immensely to the protection of human rights in India, yet they have failed to assert themselves against the mighty and powerful. Analysing their structural and practical limitations, suggest remedial measures.
The National Human Rights Commission (NHRC) of India was established on 12th October, 1993 under the Protection of Human Rights Act (PHRA), 1993. The NHRC is an embodiment of India’s concern for the promotion and protection of human rights.
Functions of NHRC:
- Complaints and redressal mechanism.
- Awareness raising, human rights education, training and research.
- Cooperation with civil society, NGOs and human rights defenders.
- Coordination with all State Human Rights Commissions.
- Engagement at international and regional bodies and mechanisms.
Contributions of NHRC:
- The Commission took cognizance of many individual cases of displacement on account of mega projects, disasters and conflicts.
- In the aftermath of Godhra riots in Gujarat, the Commission filed a writ petition in the Supreme Court and ensured that guilty persons were brought to book.
- With respect to the high suicide rates by debt-ridden farmers, the Commission took suo motu cognizance of the reports about suicide by farmers.
- NHRC can only make recommendations without the power to enforce decisions. It does not have any mechanism of investigation. In majority cases, it asks the concerned Central and State governments to investigate the cases of the violation of human rights.
- It has been termed as ‘India’s teasing illusion’ by Soli Sorabjee (former Attorney-General of India) due to its incapacity to render any practical relief to the aggrieved party.
- A large number of grievances go unaddressed because NHRC cannot investigate the complaint registered after one year of incident.
- State Human Rights Commissions cannot call for information from the Central government which means that they are implicitly denied the power to investigate armed forces under the control of the Union government.
Possible Remedial Measures:
- NHRC efficacy can be enhanced by government if the decisions of the Commission are made enforceable.
- There is need to change in composition of the Commission by including members from civil society and activists.
- NHRC should have its autonomous investigating staff recruited by itself instead of the present practice of deputation.
- To improve and strengthen the human rights situation in India, state and non-state actors need to work in tandem.
Manifold challenges are presented by the situation of persistent human rights violations across the country. There is an urgent requirement to improve and strengthen the human rights situation. It is necessary to empower NHRC to make it work more efficiently and independently.
12. Discuss the essential conditions for exercise of the legislative powers by the Governor. Discuss the legality of re-promulgation of ordinances by the Governor without placing them before the Legislature.
The Governor is a part of the state executive in India and the constitution of India has given her/him various legislative powers under part VI of the constitution.
There are different essential conditions under which the Governor uses its legislative powers:
- Every new year the first session of the state legislature is addressed by the Governor.
- If the office of the speaker or the deputy speaker (chairman or deputy chairman in case of the legislative council) is vacant to preside the state legislative assembly (SLA), then Governor can appoint any member from the SLA to preside for the meeting.
- Governor can reserve any bill of the state legislature (except the money bill) for reconsideration by the president.
- In the condition of the disqualification of the member of the state legislature, Governor can decide its legality after consultation with the Election Commission.
- The most important legislative power the Governor perform is that he can make ordinances when the state legislature is not in session.
Under Article 213 of the constitution, the Governor can issue ordinances when the state legislature is not in session and he can re-promulgate the ordinance thrice.
DC Wadhwa Case 1987: The Supreme court held that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature.
Krishna Kumar Singh Case 2017: Supreme court stated that the re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.
Indian Constitution has provided for the separation of powers among the legislature, executive, and judiciary where enacting laws is the function of the legislature. Hence, if certain circumstances arise, then the Governor can re-promulgate the ordinances after giving answers to some questions of the legislature like about their urgency and absolute needs.
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.
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. 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. Indian Constitution exhibits centralising tendencies to maintain unity and integrity of the nation. Elucidate in the perspective of the Epidemic Diseases Act, 1897; The Disaster Management Act, 2005 and recently passed Farm Acts.
During the Constituent Assembly debates, the prominent members of the assembly asserted a stronger Union government necessary for India’s survival and political stability, given its vast diversity. The Indian Constitution has an inherent bias for the Union government as the central government is the superior authority to the states in various ways.
Centralising Tendencies of the Constitution
- Article 1 describes India as a Union of States. That is, an indestructible Union of destructible States.
- The Union list contains more subjects than the State list and in case of a deadlock between the Union and States over subjects in the concurrent list, the Union law prevails. Further, the residual powers rest with the Union.
- Provisionslike single Constitution;single citizenship; all-India public services etc. are othersuch manifestations of centralising tendencies.
- The application of centralising provisions was recently visible as the Union implemented several Acts to fight the Coronavirus, and to reform the agriculture sector.
Disaster Management Act, 2005
- It was enacted by the Union under the residual powers. The Act proved to be instrumental in combat against the COVID-19 though ‘Public health and sanitation’ is a subject under Entry 6 of State list.
- Under the Act, irrespective of any law in force, the Center can issue any directions to any authority anywhere in India to facilitate or assist in disaster management.
Epidemic Diseases Act, 1897
- The Act was formulated pre-independence mainly to control plague in the late 1800s.
- Under this Act, State governments have the prerogative to take appropriate measures for arresting the outbreak or spread of a contagious disease.
- During the outbreak of COVID-19, the Union Health Ministry had advised all the states/UTsto invoke provisions of Section 2 of the Act so that all advisories being issued from time to time are enforceable.
- The Act empowers the Central government to take measures for inspecting and detaining persons travelling out of or into the country during the epidemic.
The Three Farm Acts
- The Central government recently introduced major agricultural market reforms through three Acts: The Essential Commodities (Amendment) Act, 2020, The Farming Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, and The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020.
- These have been enacted under Entry 33 of Concurrent List which deals with trade and commerce, and production and supply of foodstuffs – an issue that holds enormous importance for enhancement of farm income.
- However, these three inter-linked Acts constitute the concerted entry of the Centre into the sphere of agriculture, which was designated a State subject in the Constitution.
Thus, a strong Union seems essential for coordinating vital matters of common concern and ensuring peace. Moreover, though there are some centralising tendencies, there also exists some highly federal features like dual polity and bicameral structure of the parliament.
11. The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular State is being questioned by various States. However, the power of the States to withhold consent to the CBI is not absolute. Explain with special reference to the federal character of India.
Federalism is a system of government in which the power is divided between a central authority and various constituent units of the country. The Constitution clearly provided a threefold distribution of powers between the Union Government and the State Governments.
Known as India’s premier investigation agency, Central Bureau of Investigation (CBI) deals with matters of corruption and major criminal matter. It investigates cases connected to infringement of economic and fiscal laws. The CBI derives its power from the Delhi Special Police Establishment (DSPE) Act, 1946.
According to Section 6 of the DSPE Act, the State’s consent is required to extend CBI investigation beyond Union Territories. There are two types of consent for a probe by the CBI:
- General Consent: When a State gives a general consent to the CBI, the agency is not required to seek fresh permission every time it enters that State in connection with investigation.
- Specific Consent: When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned State government. If specific consent is not granted, the CBI officials will not have the power of police personnel when they enter that State.
However, the power of the States to withhold consent to the CBI is not absolute. The CBI can be ordered by the Supreme Court and the high court to investigate a crime without the consent of the State. Moreover, the withdrawal of general consent does not affect pending investigation (Kazi Lendhup Dorji case, 1994) or the cases registered in another State in relation to which investigation leads into the territory of the State which has withdrawn general consent.
In context of federal structure, Police is exclusively a State subject. However, the establishment of CBI under the DSPE Act is an exception as it encroaches upon the State jurisdiction. Federal issues are caused recurrently with the jurisdiction of CBI often coming into direct confrontation with the State police. The existence of different political parties at the State and Central level often leads to a more prominent conflict between the State and Centre over CBI.
11. Discuss the procedures to decide the disputes arising out of the election of a Member of the Parliament or State Legislature under The Representation of the People Act, 1951. What are the grounds on which the election of any returned candidate may be declared void? What remedy is available to the aggrieved party against the decision? Refer to the case laws.
The Representation of the People Act, 1951 provides for the conduct of elections. This Act also lays down the procedure for settling disputes arising out of elections.
To decide election disputes, the procedure begins with filing an election petition inquiring into the validity of the Parliamentary or local government elections’ result. The petition shall be filed in the respective High Court by any candidate, or an elector related to the election personally. Moreover, an election petition calling in question an election shall be filed within 45 days from the results declaration date.
The election of a particular candidate can be declared void if the High Court opines that:
- On the date of his/her election a returned candidate was not qualified or was disqualified to be chosen to fill the seat.
- Any corrupt practice has been committed by a returned candidate.
- There was an improper acceptance of any nomination.
- There has been any improper reception, refusal or rejection of any vote or the reception of any vote which is void.
- There has been any non-compliance with the provisions of the Constitution or RPA.
Certain remedies are available to the aggrieved parties against the order(s) of the High Court. The aggrieved party can file an appeal to the Supreme Court within 30 days from the order of the High Court.
In the Azhar Hussain v. Rajiv Gandhi case (1985), the election petition by Azhar Hussain was dismissed both by the High Court and the Supreme Court due to a lack of evidence substantiating the allegation of corrupt practices by the returning candidate.
An application for a stay on the High Court’s order can be made to the High Court. The Supreme Court can also put a stay on the operation of the order made by the High Court based on the aggrieved party’s appeal.
For example, in the Indira Gandhi v. Raj Narain case (1975). Her election was initially voided by the Allahabad High Court on charges of corrupt practices. She later appealed to the Supreme Court which upheld her election.
Thus, the Representation of the People Act, 1951 is crucial for the efficient functioning of the Indian democracy as it enables the conduct of streamlined elections and provides the necessary redressal mechanism to the aggrieved parties involved.
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.
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.
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.
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.
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. 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. ‘Once a Speaker, Always a Speaker’! Do you think this practice should be adopted to impart objectivity to the office of the Speaker of Lok Sabha? What could be its implications for the robust functioning of parliamentary business in India?
The Speaker of the House is a key office in parliamentary democracy. The Speaker facilitates the business of the House and maintains decorum in the House. The Speaker has functions to perform in regulatory, administrative and judicial matters.
However, the Speakers have often been alleged to be working under their respective party affiiliations. There have been incidents when the opposition members have been denied chance to raise questions. In a recent case, the demand for recording of votes has been declined by the Speaker and the motion had been passed by voice vote.
Speakers have also been blamed for harboring political ambitions asthe person elected as Speaker are eligible for further appointment. For example, G.S. Dhillon, Speaker of the Lok Sabha (for two terms), stepped down in 1975, and became the Union Minister for Shipping.
As a revamp in the structure of the office, the UK practice of Once a Speaker always a Speaker is sometimes suggested. In the United Kingdom, once elected, the Speaker gives up all party affiliations and remains in office until retirement. Political parties do not field candidates from the constituency of the Speaker to ensure his/her re-election to the house. The British Parliament automatically elevates the Speaker to the House of Lords once they demit office.
Implications of adopting UK system of Speaker in India:
- The UK system ensures impartiality, fairness and autonomy of the Office of the Speaker.
- It ensures the freedom from interference and pressures which provide the necessary atmosphere where one can work with absolute commitment to the cause of neutrality as a constitutional value.
- It also ensures security of tenure.
- Nevertheless, uncontested re-election impacts representative democracy at the level of constituency.
- One person at one post for life also prevents bringing new conduct and alternative point of views in the office.
- The level of autonomy this system provides requires establishment of a similar level of accountability mechanism.
Given the need for reform for the office of the Speaker in India, it is necessary to strengthen the office of Speaker in India.
- In Ireland, the position of Speaker is given to someone who has built up credibility by relinquishing his or her political ambitions.
- Speaker can be disallowed from future political office, except that of the President, while being given a pension for life.
- Issues associated with representative disqualification can be determined by a separate tribunal.
- The restrictions can be placed on the discretionary powers of the Speaker. These may include imposing deadlines to deal with the cases of resignation or disqualification or floor tests.
It is time to ensure impartiality and transparency in the office of the Speaker by imposing a deadline and a set of guidelines required to exercise all the entrusted powers. It is only after such changes are put in place that the revered office of the Speaker can truly be called the symbol of India’s freedom and liberty.
5. Discuss the role of the National Commission for Backward Classes in the wake of its transformation from a statutory body to a constitutional body.
The National Commission on Backward Classes (NCBC) was a statutory body under the Ministry of Social Justice and Empowerment. Later, the 102nd Constitutional Amendment Act of 2018, provided constitutional status to the NCBC.
There are various transformations that have happened in the new NCBC:
- As a statutory body, it derives its powers from statutes or laws made by parliament while now as a constitutional body it derives its powers and authorities from the Indian constitution.
- 102nd Constitutional Amendment Act (CAA) inserted Article 338B which is regarding NCBC to examine complaints and welfare measures. This was lacking in the previous NCBC.
- 102nd CAA also inserted a new Article 342A, which brings greater transparency as the Act specified the concurrence of parliament which is mandatory in the amendment of the list of backward classes.
- In the new NCBC, the focus has shifted from reservation to the development of the backward class and the inclusion of grievance redressal.
However, there are some underlying issues like, the recommendation of the NCBC is not mandatory and it has no responsibility to define backwardness.
Thus, NCBC is an important commission for social progress. It should be gender sensitive and there should be no vote bank politics for better implementation of its rules.
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.
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. 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. 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. The judicialsystemsin India and the UK seem to be converging as well as diverging in recent times. Highlightthe key points of convergence and divergence between the two nationsin terms oftheirjudicial practices.
Both India and the United Kingdom are democratic countries with parliamentary form of government. Besides, there are differences as well as similarities on how the Executive, Legislature and Judiciary of these countries function.
The Indian Judicial System has its origin in the ‘Mayors Courts’ established by the East India Company in 1726. During the course of the British Rule, the judicial systems developed imbibing the features like rule of law, and recording judicial precedents.
After Independence India inherited the same judicial system but made changes to suit the peculiar Indian situation.
The points of convergence in the judicial system include:
- Independence of Judiciary: In Britain as well as in India the judges can only be removed from the office for serious misbehavior and with the consent of both the Houses of Parliament.
- Ultra-vires: Courts in both the UK and in India can declare the action of executive as ultra-vires i.e. acting or done beyond one’s legal power or authority.
- Interpretation of Constitution: The courts in both India as well as in the UK act as the highest interpreter of the constitution.
The points of divergence in the judicial system include:
- Sovereignty of Parliament: Under the doctrine of Parliamentary sovereignty, the judiciary in the UK lacks the power to strike down an Act of Parliament. However, in India, the courts have been given this power.
- Basic Structure Doctrine: The courtsin India have come up with the Doctrine of Basic Structure, which prevents executive from making laws or amendments which alter or deviate from the basic values enshrined in constitution. British system lacks the concept of ‘Basic Structure’.
- Unified Three-Tier System: The United Kingdom does not have a single unified legal system, England and Wales have one system, Scotland another, Northern Ireland a third. The Constitution of India has established a unified three-tier system of judiciary, with the Supreme Court at the top.
- Appointment of Judges: In the UK, the Constitutional Reform Act, 2005 has created the Judicial Appointments Commission for appointment of judges. However, in India, the Judges of the Supreme Court, as well as High Courts, are appointed by the President under collegium system.
The British judicial system provided the foundation on which its Indian counterpart was built. But Indian judicary has evolved and learnt from the best practices around the world to safeguard democracy and rule of law.
4. To what extent, in your view, the Parliament is able to ensure accountability of the executive in India?
The Constitution of India provides for a parliamentary form of government, where the Executive is responsible to the Parliament for its policies and acts. The parliamentary democracy provides for a daily assessment of accountability of the executive to the legislature.
The Parliament ensures the accountability of the Executive in the following ways:
- Question-hour, zero hour, calling attention motion, adjournment motion, no-confidence motion, censure motion, and other discussions.
- MPs may pose questions to ministers related to the implementation of laws and policies by the government.
- Budgetary control for appropriation of grants and post-budgetary control through committees like Public Accounts Committees.
- The system of committees – such as standing committees, select committees and ad hoc committees etc. – facilitate scrutiny of the actions and activities of the executive.
Nevertheless, there have been some recent instances wherein the Parliament was found to be unable to ensure accountability of the executive:
- Evading route of debates/discussions/checks, such in the cases of Aadhaar Act (money bill route), farm laws (use of voice vote mechanism), etc.
- The Parliament side-lined the parliamentary institutions as lesser bills were referred to parliamentary committees.
- Due to lack in coordination and decorum, there were disruptions during the sessions and question hour registered low productivity.
Thus, though the Parliament seems to be quite empowered to hold the political executive to account, there are several limitations and constrains over this power in practice. Some such constraints may be enumerated as follows:
- Dominance of the majority party or majority coalition in the parliament.
- The compulsions of anti-defection law and the role of party whips.
- Complex and technically complicated presentation of policies, laws and the budgets.
- Frequent use of exceptional provisions of the Constitution like ordinance making power.
To ensure complete accountability of the Executive to the Parliament, some steps need to be taken. One can accommodate the 15-point reform charter as suggested by the Vice President. It is also required to make the committee system function effectively and efficaciously by ensuring that the members of the committee are nominated on the basis of domain knowledge and for a longer assured term.
4. Discuss the role of the Vice-President of India as the Chairman of the Rajya Sabha.
The office of the Vice-President of India is the second highest constitutional office after the President. Articles 63-71 in Part V of the Constitution of India deals with the office of the Vice-President.
Role of the Vice-Presidents of India as the Chairman of the Rajya Sabha
- He presides over the meetings of the House and ensures that the proceedings of the House are conducted in accordance with the relevant constitutional provisions and conventions.
- The communications to the President are made through the Chairman and he also communicates the decision of the House to the concerned authorities.
- He is empowered to adjourn the House or to suspend its sitting during the absence of quorum.
- He does not take part in the deliberations of the House except in the discharge of his duties as the Presiding Officer.
- When a Bill is passed by the Houses and is in possession of the Rajya Sabha, the Chairman authenticates the Bill before presenting it to the President for assent.
- He exercises only a casting vote in the case of equality of votes.
- He is the custodian and guardian of the rights and privileges of the House and its members.
- He determines the question as to disqualification of a member of the Rajya Sabha on ground of defection.
- The Secretariat of Rajya Sabha functions under the control and direction of the Chairman.
The Vice-President of India has been clothed with a dual capacity as the second head of the Executive and as the Presiding Officer of the Upper House of Parliament.
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.
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. 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. How far do you think cooperation, competition and confrontation have shaped the nature of federation in India? Cite some recent examples to validate your answer.
A federation is a political entity characterized by a union of partially self-governing states or regions united by a central government. Granville Austin describes the Indian federation as an example of cooperative federalism that produces a strong Central government but does not result in weak provincial governments. Such distinctive nature of federalism gives rise to cooperation, competition and sometimes confrontation among the federal units.
- It was seen during the GST reforms when each state agreed to leave some part of their share in the tax pool for the long-term goods.
- Collaboration was also evident during the COIVD-19 pandemic when states and the Centre acted as one in the fight against the virus.
- With the Liberalisation Reforms of 1991, there has been a competition among the states to attract foreign investment and industries.
- Planning Commission was replaced by NITI Aayog to promote competition among states and promote the spirit of cooperative federalism. The NITI Aayog publishes rankings of different states in accordance with Ease of Doing Business and this has led to several states and districts doing reforms at the ground level.
- The Aspirational Districts Programme (ADP) started by the NITI Aayog aims to identify 115 laggard districts in termsofsocio-economicoutcomesandinstituteaprogrammewithconvergence, collaborationandcompetition as the core tenets.
- From 1967 to 1990, India had witnessed confrontational federalism due to the emergence of regional parties. The confrontation between States and the Union was due to the role of the governor and the use of Article 356.
- Politically, the rise of coalition politics increased the role of states at national level. This can be seen in the role of West Bengal in River Sharing Agreement with Bangladesh and of Tamil Nadu during India’s role in conflict with LTTE in Sri Lanka.
This collaboration, competition and confrontation has shaped the Indian federation. It is visible in following ways:
- The diverse regional aspirations havemanaged to constantly assertthemselves,resulting in the decentralisation of governance in India and the institutionalisation of the Local Self -government under the 73rd and 74th Constitutional Amendment Acts.
- The passing of the Goods and Services Tax (GST) is anothersuch example. By implementing GST the Centre and States have become equal fiscal partners in sharing a common indirect tax base.
- The Union government accepted the 14th Finance Commission recommendation to give the States 42% share of the funds from the central pool.
Cooperative and competitive federalism are complementary ideas that will drive India’s growth story in the coming decades. However, it is necessary to avoid confrontations among the units of federalism. Inter-state Council can play an enabling role in bringing the Centre and the States together on contentious policy issues.
3. How have the recommendations of the 14th Finance Commission of India enabled the States to improve their fiscal position?
The Fourteenth Finance Commission was constituted by the President under Article 280 of the Constitution in 2013 to make recommendations for the period 2015-20. Dr. Y. V. Reddy was appointed the Chairman of the Commission. Finance Commission is a constitutional body created to address issues of vertical and horizontal imbalances of federal finances in India.
The 14th Finance Commission enabled the States to improve their fiscal position in the following ways:
- Share in Centre’s Divisible Pool: The commission recommended an increase in the share of States in the Center’s divisible tax pool to 42% from 32% at present. This will enhance the states autonomy in deciding their expenditure priorities.
- Centrally Sponsored Schemes: The Commission also recommended eight centrally sponsored schemes (CSS) to be delinked from support from the Centre. Thus, States will be sharing a higher fiscal responsibility and autonomy to implement development initiatives.
- Taxation: The Commission has recommended that tax devolution should be the primary source of transfer of funds to States. This would increase the flow of unconditional transfers and give States more flexibility in their spending.
- Grants: Transfers were proposed including grants to rural and urban local bodies, a performance grant along with grants for disaster relief and revenue deficit. These transfers total to approximately 5.3 lakh crore for the period 2015-20.
- Compensation: The commission recommended compensating States fully for three years in case of revenue loss after GST implementation. The Commission suggested that 100% compensation be paid to the States in the first, second and third years, 75% compensation in the fourth year and 50% compensation in the fifth and final year. It also recommended the creation of an autonomous and independent GST compensation fund through legislative actions
The Finance Commission recommendations will reform the State finances which will assume greater significance for macroeconomic management as the fiscal deficit of State governments reached unsustainable levels. After the recommendations, States will get autonomy in deciding their expenditure priority, which will enhance the spirit of “balancing wheel of fiscal federalism”.
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.
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. 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. “Recent amendmentsto the Rightto Information Act will have a profound impact on the autonomy and independence of the Information Commission”. Discuss.
The basic objective behind the Right to Information (RTI) Act was to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense.
The recent amendments to the RTI Act
- The Right to Information (Amendment) Act, 2019 has changed the status, salary and tenure of the Central Information Commissioners (CICs) and State Information Commissioners (SICs).
- The original Act prescribed salaries, allowances and other terms ofservice of the state CIC as “the same asthat of an Election Commissioner”, and the salaries and other terms of service of the StateIn formation Commissioners as “the same as that of the Chief Secretary to the State Government”.
- The amendment says that these “shall be such as may be prescribed by the Central Government”. Thus, the Centre now has the powers to decide the salaries, term, and service conditions of CICs and SICs.
It has been argued that the amendments were necessary to correct certain anomalies. For example, the mandate of Election Commission of India and Central and State Information Commissions are non-identical, so should be their status and service conditions.
However, the amendments have the potential to impact the autonomy and independence of the Information Commissions.
- Independent structures set up to regulate and monitor the government are vital to a democratic state committed to delivering justice and constitutional guarantees.
- The amendment allowsthe interference of the executive in the functioning of information commissions which are quasi-judicial bodies. This may affect the doctrine of separation of powers, which underscores this independence and is vital to our democratic checks and balances.
- Apart from this, the amendment also affects the constitutional principles of federalism, as now the Central government can change terms of service of state information commission.
- The amendment hasthe potential to make accessto information difficult. Easy and quick accessto information is vital to ensure the accountability of the representatives and the state.
The 2nd ARC held that RTI is the master key to governance as it checks the misuse and arbitrariness of power and corrupt governance. Therefore, in the pursuit of good governance, the RTI Act requires strengthening of the provisions.
2. Discuss the desirability of greater representation to women in the higher judiciary to ensure diversity, equity and inclusiveness.
In the recent instances concerning women in judiciary, the Chief Justice of India, N.V. Ramana called for 50% representation of women in the judiciary.
According to the latest data on the gender gap in judiciary, it is highlighted that the Supreme Court only has 2 women judges and there has never been a female Chief Justice of India. There are only around 80 women judges out of the total sanctioned strength of around 1100 judges in the higher judiciary.
The Sustainable Development Goals (SDG 5 and SDG 16, in particular), address the global responsibility of having gender equality and women’s representation in public institutions such as the judiciary. Achieving equality for women judges, in terms of representation at all levels of the judiciary, should be the ultimate goal.
Being a woman does not limit her critical thinking and capability to render justice. Judicial benches having representation of women give either a new dimension or broader acceptance to legal principle/interpretation.
By their mere presence, women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice. The legal profession, as a gatekeeper of equality and as an institution committed to the preservation of rights, should be emblematic of gender equality.
Improving the representation of women in the judiciary is of crucial importance and has to go a long way towards a more balanced and empathetic approach in cases involving sexual violence. Changing the long-established demographics of a court can make the institution more amenable to consider itself in a new light, and potentially lead to further modernization and reform.
2. "Right of movement and residence throughout the territory of India are freely available to the Indian citizens, but these rights are not absolute." Comment.
The Right of movement and residence throughout the territory of India is one of the most important fundamental rights available to the citizens of India.
Article 19(1)(d) of the Indian Constitution entitles every citizen to move freely throughout the territory of the country. Moreover, it is available only to the citizens and to shareholders of a company but not to foreigners or legal entities like companies or corporations, etc.
Freedom of movement has two dimensions — internal and external. Article 19(1)(d) protects only the internal dimension, i.e., the right to move withing the country.
Restrictions on this freedom can only be imposed on two grounds which are mentioned in Article 19(5) of the constitution itself, namely, the interests of the public and the protection of interests of any Scheduled Tribe.
Article 19(1)(e) provides the right “to reside and settle in any part of the territory of India” to the Indian citizens. Just like Article 19(1)(d), this right is also subject to reasonable restrictions.
However, these rights are not absolute. For example, for protecting the interests of the Scheduled Tribes in India, various provisions have been enshrined in the Fifth and Sixth Schedule of the Indian Constitution. Some of these deal with the limitation or prohibition of the transfer of land in such areas as well as the regulation of the allotment of land.
Further, in the State of Uttar Pradesh v. Kaushaliya (1963), the Supreme Court held that the right of movement of prostitutes may be restricted on the grounds of public health and in the interest of public morals.
Thus, this right, while enhancing the mobility of the Indian citizens, is also subject to certain restrictions that help in maintaining a fine balance between freedoms and rights of the people.
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.
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. 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. 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. “There is a need for simplification of procedure for disqualification of persons found guilty of corrupt practices under the Representation of Peoples Act”. Comment.
The Representation of the Peoples Act (RPA), 1951 deals with the conduct of elections to the parliament and state legislatures. It also covers the qualifications and disqualifications for the membership of these Houses, the corrupt practices and other election offences.
Section 123 of RPA, 1951 provides for disqualification on ground of corrupt practices like:
- Bribery i.e. any gift/offer/promise or gratification to any person as a motive or reward.
- Undue influence i.e. any direct or indirect interference on part of the candidate with the free exercise of any electoral right.
- Publication by a candidate any statement of fact which is false.
- Promotion of feelings of enmity or hatred between different classes of citizens.
- The incurring of expenditure more than the stipulated limit.
Procedure of Disqualification under RPA
- The procedure of disqualification under the corrupt practices can be started only after the election is over and only in an election petition submitted in the State High Court in accordance with the provisions of Article 329 of the Constitution.
- Section 8 (3) of the Actstatesthat if an MP or MLA is convicted for any other crime and issent to jail for 2 years or more, he/she will be disqualified for 6 years from the time of release.
- Despite such an elaborate classification of corrupt practices that could potentially nullify the election of a candidate, electoral malpractice continues to flourish.
- Many of the provisions are extremely difficult to enforce despite an assertive Election Commission.
- Electoral frauds such as booth capturing and casting of false votes have been drastically reduced, but votebuying and unaccounted campaign expenditure continue unabated.
- A study by the Centre for Media Studies found that over the last decade, at least one-fifth of India’s electorate was paid cash for their votes.
- Besides, the cap on campaign expenditure is often breached by candidates.
- The petitions are filed before the High Courts, which already have a large number of pending cases. The RPA has mandated that the petitions be disposed of within a period ofsix months, in reality, they drag on for years.
- The RPAs lack clear provisions and guidelines on the matters related to the misuse of official machinery that gives an unfair advantage to the ruling party.
- The Law Commission has recommended changing the procedure for hearing election petitions. It said that special election benches should be constituted to dispose of election petitions quickly.
- It also recommended thatthe President ofIndia should decide the period of disqualification of guilty candidates on the advice of the Election Commission.
1. ‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions.
Constitutional Morality is defined as the adherence to the principles of the constitutional values. It includes commitment to inclusive and democratic political process. According to Dr. Ambedkar, the concept of constitutional morality implied the harmonious interaction between the governing and governed.
Though the term ‘Constitutional Morality’ is not found in the Constitution, nevertheless it is rooted in various facets of the Constitution, such as in:
- Preamble (values like justice, liberty, equality and fraternity)
- Fundamental Rights
- Fundamental Duties
- Directive Principles of State Policy
The doctrine of constitutional morality safeguards and upholds the enforcement of rule of law in the country. It recognizes this distinction and non-homogeneity and promotes diversity, helping to make the society more inclusive. It also promotes people to be an active participant of the system and fight the inequalities and non-constitutional elements.
The Supreme Court has been vocal about constitutional morality. To illustrate:
- In the Krishnamoorthy case (2015), the Court held that democracy expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance.
- In Justice K.S. Puttaswamy case (2018), the SC held that constitutional morality ensures that courts must neutralise the excesses of power by the executive and strike down any legislation or even executive action if it is unconstitutional.
- In the Government of NCT of Delhi case (2018), the Court equated constitutional morality to a ‘second basic structure doctrine’. It said that constitutional morality acts as a check on arbitrary use of power as it implies strict and complete adherence to the constitutional principles.
- In the Indian Young Lawyer’s Association case (2018), commonly known as the Sabrimala case, the Supreme Court bypassed the doctrine of essentiality (the principle protecting the ‘integral’ religious practices of a community) to uphold the supremacy of constitutional morality.
Constitutional morality is crucial for constitutional laws to be effective. Without constitutional morality, the operation of the constitution tends to become arbitrary. However, the concept of constitutional morality need not be determined by the Supreme Court at every given instance. It is a sentiment that needs to be cultivated in the minds of citizens.
1. "The most significant achievement of modern law in India is the constitutionalization of environmental problems by the Supreme Court." Discuss this statement with the help of relevant case laws.
Constitutionalisation of Environmental problem means aligning environmental problem to violation of fundamental rights of individual or community or abrogation of responsibility by government to enforce directive principles so as to impart meaningful decency to environmental problem.
Judicial pronouncement that led to constitutionalisation of environmental problems are:
- Right to Pollution Free Environment - In Subhash Kumar vs. State. of Bihar (1991) the Supreme Court held that right to life is a fundamental right under Art. 21 of the Constitution and it include the right to pollution free environment. Thus, SC imparted constitutionality to right to pollution free environment.
- Polluters Pay Principle- In M. C. Mehta vs. Union of India (1986) The Supreme Court introduced the “principle of absolute liability”. This enabled that now hazardous industries will be liable for environmental damage.
- Right to Clean Air- To ensure right of citizens to have clean air, SC introduced Graded Response Action Plan (GRAP) in Delhi and NCR region in M. C. Mehta case vs Union of India (2020) which ensured gradually curbing the industrial activities as pollution level peaks.
- Right to Compensatory Afforestation- The SC under it established Compensatory Afforestation Management and Planning Authority (CAMPA) to prevent the misuse of funds raised for afforestation, which inevitably resulted in legislation on the CAMPA Act 2016.
Thus, SC as guardian of fundamental rights has effectively employed the provision of laws and judicial pronouncement to protect citizens right to environment as fundamental right under Right to dignified life.