Mains Gsii

MAINS COMPASS
The Civil Services Mains Examination is all about collection, processing and application of INFORMATION – whether
conceptual or current - of each subject according to the question asked.
In essence, MAINS EXAMINATION is more about a combination of
 Conceptual knowledge
 Analytical skill
 Inter-disciplinary approach
 Articulate and objective presention of information
The Mains Compass booklets are designed to meet two objectives:
 Knowledge enhancement:
 Important themes have been identified after studying the previous year papers, past 18 months current
affairs and syllabus.
 Each theme has been designed to cover 360-degree view of the topic to develop the analytical skill among the
aspirants.
 Each theme has been designed with proper sub-headings so that aspirant can easily differentiate how to
utilize that in answer writing.
 Each theme has been supplemented with SPICE (Social, Political, Institutional, Cultural and Economic)
APPROACH to develop multi-dimensional
approach among the aspirants.
 Time management: Social
 The content has been compiled so that Dimension
aspirant may save time by avoiding
reading from different sources.
How to use this book? Economic Political

Dimension dimension
 The first part of the book provides MAIN
detailed analysis of the previous year THEME
papers theme-wise and expected
topics for the Mains 2019. Read this
section thoroughly to get an idea about
the pattern of questions asked in the Cultural Institutional
examination. dimension dimension
 The second part covers detailed analysis
of each theme with proper sub-
headings. Student should read the topic thoroughly and design self-notes for last minute revision.
 Read the SPICE APPROACH to develop a multi-dimensional approach. Utilize the information to broaden your
outlook as question is usually designed keeping at least one dimension in loop.
CONTENTS
SYLLABUS AND PREVIOUS YEAR QUESTIONS & THEME MAP 01 ►CLEMENCY POWER OF PRESIDENT AND GOVERNOR 45
►DISCRETIONARY POWERS OF THE GOVERNOR 47
►SIGNIFICANCE OF STRONG OPPOSITION IN DEMOCRACY 51
►DUTIES AND ROLE OF PRIME MINISTER 53
►COALITION GOVERNMENT: MERITS AND DEMERITS 54
►OFFICE OF PROFIT: CONCEPT AND ISSUES 55
►PRIVILEGES OF THE PARLIAMENT 56

10 ►RELEVANCE OF RAJYA SABHA 59
►BASIC STRUCTURE OF THE CONSTITUTION 11 ►STRENGTHENING OF COMMITTEE SYSTEM IN PARLIAMENT 61
►VALUES IN THE CONSTITUTION 12 ►ANTI-DEFECTION LAW 64
►PRESIDENTIAL AND PARLIAMENTARIAN SYSTEM OF ►POWERS OF SPEAKER WITH RESPECT TO MONEY BILL 67
GOVERNMENT 14 ►ISSUE OF LG AND CM IN STATES 68
►AMENDMENT TO THE CONSTITUTION 17 ►ARTICLE 35A AND J&K 71
►NATIONAL REGISTER OF CITIZENS 19 ►HOW TO STRENGTHEN PARLIAMENT? 73
►CITIZENSHIP RULES AMENDMENT ISSUE 21 ►CONSTITUTION OF CABINET COMMITTEES 75
►LAW COMMISSION REPORT ON HATE SPEECH 23
►LAW COMMISSION REPORT ON SEDITION 26
►RESERVATION OF ECONOMICALLY WEAKER SECTION 29
►RIGHT TO PROTEST: A FUNDAMENTAL RIGHT 30
►PASSIVE EUTHANASIA 32
►RIGHT TO PRIVACY & AADHAAR 33

78
►MOB LYNCHING 37
►TRIPLE TALAQ 39 ►COLLEGIUM SYSTEM IN APPOINTMENT OF JUDGES 79
►RESERVATION IN PROMOTION FOR MEMBERS OF SC/ST 41 ►IMPEACHMENT OF THE CHIEF JUSTICE OF INDIA 81
►S.C.TO DECIDE ON MINORITY STATUS OF AMU 43 ►ISSUES RELATED TO UNDERTRIALS IN INDIA 83
►WITNESS PROTECTION SCHEME 86
►NEED OF STRONG JUDICIARY FOR MARKET ECONOMY 88
►CASSATION BENCH OF SUPREME COURT 91
►LOK ADALAT 92
►LAW COMMISSION REPORT ON TRIBUNALS 95
44 ►ARBITRATION COUNCIL OF INDIA 97
►COMMERCIAL COURTS AND DIVISIONS IN HIGH COURTS 97
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►NITI AAYOG ON JUSTICE REFORM SYSTEM 99 ►DECRIMINALISATION OF POLITICS 138
►CRITICAL ANALYSIS OF CAPITAL PUNISHMENT 101 ►AGAINST REPEATED PROPAGANDA IN ELECTION 139
►NEED FOR PRISON REFORMS IN INDIA 103 ►REGULATION OF POLITICAL PARTIES AND INNER PARTY
DEMOCRACY 141
►PUBLIC INTEREST LITIGATION 105
►DE-REGISTERING OF POLITICAL PARTY 142
►EC LAUNCHES APP TO REPORT MALPRACTICE – cVIGIL 143
► ELECTORAL BONDS 144
► EVMS, VVPAT & CHALLENGES 144
►AUTONOMY OF ELECTION COMMISSION OF INDIA 146

108 ►REGULATING PAID NEWS 146
►FEDERALISM IN INDIA: RECOMMENDATIONS OF SARKARIA AND ►CONCEPT OF INDEPENDENT CANDIDATES 148

PUNCHHI COMMISSION 109
►NONE OF THE ABOVE (NOTA) 148
►FISCAL FEDERALISM IN INDIA 112
►ELECTION PETITION 150
►INTER STATE WATER DISPUTE 114
►SIMULTANEOUS ELECTIONS IN INDIA – ONE NATION, ONE
►NITI AAYOG AND COOPERATIVE FEDERALISM 115 POLL 151
►ABOUT ZONAL COUNCIL, INTER-STATE COUNCIL & NORTH- ►SERVICE VOTERS 152
EASTERN COUNCIL 116
►RETURNING OFFICER 153
►SEPARATION OF POWER 121
►MODEL CODE OF CONDUCT 154
►ABOUT ELECTION MANIFESTO 155
►PROXY VOTING FOR CITIZENS RESIDING OUTSIDE INDIA 156
125
►ISSUES IN DECENTRALIZATION – LOCAL GOVERNMENT 126
►WOMEN EMPOWERMENT ISSUES IN PANCHAYATS 129
►SOCIAL AUDIT AND SOCIAL ACCOUNTABILITY 130
►PESA – IMPLEMENTATION ISSUES AND CHALLENGES 132
►RAJASTHAN RELAXED EDUCATIONAL CRITERIA FOR LOCAL

158
POLLS 134
►QUASI-JUDICIAL BODIES 159
►LOKPAL 160
►PUBLIC ACCOUNTS COMMITTEE & CAG 162
►TURF WAR IN CENTRAL BUREAU OF INVESTIGATION 164
►NITI AAYOG “STRATEGY FOR NEW INDIA@75 YEARS” 167
136
►ELECTION FINANCE REFORM 137
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►ISLAND DEVELOPMENT AGENCY 188
►BENAMI TRANSACTION ACT 188
►THE CRIMINAL LAW (AMENDMENT) ACT, 2018 190
►REAL ESTATE REGULATION IN INDIA 191
170 ►STATE PUBLIC SERVICE COMMISSION: CRITICAL ANALYSIS 193
►DISTRICT ADMINISTRATION: 2ND ARC RECOMMENDATIONS

►LATERAL ENTRY IN SERVICES 171 194
►INTEGRITY PACT FOR TRANSPARENCY AND ACCOUNTABILITY ►CIVIL SERVICES REFORMS 196
172
►MODERNIZING CITY GOVERNANCE FOR URBAN
►E-GOVERNANCE 173 TRANSFORMATION 198
►CITIZEN CHARTER: CRITICAL ANALYSIS 174 ►DATA LED GOVERNANCE AND POLICY MAKING 200
►OFFICIAL SECRETS ACT, 1923 175 ►ASPIRATIONAL DISTRICT PROGRAMME – NITI AAYOG 200
►RIGHT TO INFORMATION (RTI) ACT: CRITICAL ANALYSIS 177
►POLICE REFORMS 179
►STATUS OF WOMEN IN POLICE 184
►PRESSURE GROUPS & NGOS 185
►CORPORATE GOVERNANCE 186
iii
SYLLABUS & PREVIOUS YEAR QUESTIONS AND THEME MAP
Syllabus (Polity and Governance)
• Basic features of the constitution
ο Indian Constitution- historical underpinnings, evolution, features,
ο Amendments significant provisions
ο Basic structure of the constitution
ο Comparison of the Indian constitutional scheme with that of other countries
• Executive and Legislative
ο Functions and responsibilities of the Union and the States
ο Structure, organization and functioning of the Executive
ο Parliament and State Legislatures - structure, functioning, conduct of business, powers & privileges and issues
arising out of these.
ο Ministries and Departments of the Government
• Judiciary
ο Structure, organization and functioning of the Judiciary
ο Dispute redressal mechanisms and institutions.
• Federalism
ο Issues and challenges pertaining to the federal structure
ο Devolution of powers and finances up to local levels and challenges therein.
ο Separation of powers between various organs
• Elections
ο Salient features of the Representation of People's Act.
• Constitutional, Statutory and Quasi-judicial bodies
ο Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.
ο Statutory, regulatory and various quasi-judicial bodies
• Governance
ο Development processes and the development industry the role of NGOs, SHGs, various groups and associations,
donors, charities, institutional and other stakeholder.
ο Pressure groups and formal/informal associations and their role in the Polity.
ο Important aspects of governance, transparency and accountability, e-governance- applications, models, successes,
limitations, and potential; citizens charters, transparency & accountability and institutional and other measures.
ο Role of civil services in a democracy
1
RAU’S IASFOCUS SPECIAL EDITIONS | MAINS COMPASS(C3CURATION)for CSE 2019
Previous Year Questions and Theme Map
THEME-1 : BASIC FEATURES OF THE CONSTITUTION

IMPORTANT THEMES FOR MAINS
SUB-THEME YEAR UPSC MAINS QUESTIONS
2019
BASIC FEATURES 2018 India and USA are two large democracies. Examine 1. Basic structure of the constitution
the basic tenants on which the two political 2. Preamble and values
systems are based. 3. Parliamentary vs Presidential
2017 Examine the scope of Fundamental Rights in the system
st th th
light of the latest judgement of the Supreme Court 4. 1 , 25 , 42nd, 44 , recent
on Right to Privacy. Amendments
2016 Discuss each adjective attached to the word 5. National register of Citizens
‘Republic’ in the preamble. Are they defendable in 6. Citizenship Amendment Bill
the present circumstances stances? 7. Law Commission report on Hate
2016 Did the Government of India Act, 1935 lay down a Speech
federal constitution? Discuss. 8. Law Commission report on
2015 Discuss the possible factors that inhibit India from sedition
enacting for its citizens a uniform civil code as 9. Reservation of Economically
provided for in the Directive Principles of State weaker section
Policy. 10. Right to Protest as Fundamental
2015 Khap Panchayats have been in the news for Rights
functioning as extra-constitutional authorities, 11. Right to Privacy
often delivering pronouncements amounting to o Aadhar
human rights violations. Discuss critically the o Section 377
actions taken by the legislative, executive and the 12. Triple Talaq
judiciary to set the things right in this regard. 13. Passive Euthanasia
2015 Does the right to clean environment entail legal 14. Mob Lynching
regulations on burning crackers during Diwali? 15. SC/ST reservation in Promotion
Discuss in the light of Article 21 of the Indian
Constitution and Judgment(s) of the Apex Court in
this regard.
2015 Starting from inventing the ‘basic structure’
doctrine, the judiciary has played a highly
proactive role in ensuring that India develops into
a thriving democracy. In light of the statement,
evaluate the role played by judicial activism in
achieving the ideals of democracy.
2014 What do you understand by the concept “freedom
of speech and expression”? Does it cover hate
speech also? Why do the films in India stand on a
slightly different plane from other forms of
expression? Discuss.
2013 Discuss Section 66A of IT Act, with reference to its
alleged violation of Article 19 of the Constitution.
2
THEME 2: EXECUTIVE AND LEGISLATIVE

2019
EXECUTIVE AND 2018 Under what circumstances can the Financial 1. Clemency powers of President
LEGISLATURE Emergency be proclaimed by the President of and Governor
India? What consequences follow when such a 2. Discretionary powers of Governor
declaration remains in force? (Selection of CM, Article 356 and
2018 Why do you think the committees are considered its misuse, etc)
to be useful for parliamentary work? Discuss, in 3. Significance of strong opposition
this context, the r ole or the Estimates Committee. in democracy
2018 Whether the Supreme Court Judgement (July 2018) 4. Duties and Role of PM
can settle the political tussle between the Lt. 5. Coalition government
Governor and elected government of Delhi? 6. PMO super cabinet
Examine. 7. Cabinet committees
2017 The Indian Constitution has provisions for holding 8. Office of Profit
joint session of the two houses of the Parliament. 9. Privileges
Enumerate the occasions when this would 10. Relevance of Rajya Sabha
normally happen and also the occasions when it 11. Strengthening committee system
cannot, with reasons thereof. legislature
2017 Discuss the role of Public Accounts Committee in 12. Anti-Defection law and power of
establishing accountability of the government to speaker
the people. 13. Powers of speaker with respect to
2016 Discuss the essentials of the 69th Constitutional Money bill
Amendment Act and anomalies, if any that have 14. LG vs CM(Pondicherry and Delhi)
led to recent reported conflicts between the 15. 35A and J&K
elected representatives and the institution of the 16. How to strengthen Parliament?
Lieutenant Governor in the administration of 17. Office of Profit
Delhi. Do you think that this will give rise to a new
trend in the functioning of the Indian federal
politics?
2016 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.
2014 Instances of President’s delay in commuting death
sentences has come under public debate as denial
of justice. Should there be a time limit specified for
the President to accept/reject such petitions?
Analyse.
2014 The size of the cabinet should be as big as
governmental work justifies and as big as the
Prime Minister can manage as a team. How far the
efficacy of a government then is inversely related
to the size of the cabinet? Discuss.
2014 The ‘Powers, Privileges and Immunities of
3
Parliament and its Members’ as envisaged in

Article 105 of the Constitution leave room for a
large number of un-codified and un-enumerated
privileges to continue. Assess the reasons for the
absence of legal codification of the ‘parliamentary
privileges’. How can this problem be addressed?
2013 The role of individual MPs (Members of
Parliament) has diminished over the years and as a
result healthy constructive debates on policy
issues are not usually witnessed. How far can this
be attributed to the anti-defection law, which was
legislated but with a different intention?
2013 Recent directives from Ministry of Petroleum and
Natural Gas are perceived by the `Nagas’ as a
threat to override the exceptional status enjoyed
by the State. Discuss in light of Article 371A of the
Indian Constitution.
2013 Many State Governments further bifurcate
geographical administrative areas like Districts and
Talukas for better governance. In light of the
above, can it also be justified that more number of
smaller States would bring in effective governance
at State level? Discuss.
THEME 3: JUDICIARY
SUB-THEME YEAR UPSC MAINS QUESTIONS IMPORTANT THEMES FOR MAINS
2019
JUDICIARY 2017 Critically examine the Supreme Court’s judgement 1. Controversy in collegium
on ‘National Judicial Appointments Commission system
Act, 2014’ with reference to appointment of judges 2. Provision of Removal of judges
of higher judiciary in India. 3. Law commission report on
2016 What was held in the Coelho case? In this context, undertrials
can you say that judicial review is of key 4. Judiciary and company laws
importance amongst the basic features of the (Economic Survey)
Constitution? 5. Witness Protection scheme
2015 What are the major changes brought in the 6. Cassation bench of SC
Arbitration and Conciliation Act, 1996 through the 7. NITI Aayog recommendations
recent Ordinance promulgated by the President? on Judicial reforms
How far will it improve India’s dispute resolution 8. Law Commission report on
mechanism? Discuss. Tribunals
2013 The Supreme Court of India keeps a check on 9. Lok Adalat (alternative dispute
arbitrary power of the Parliament in amending the redressal mechanism)
Constitution. Discuss critically. 10. Arbitration Council of India
11. Commercial Courts and division
in HC
4
12. Judiciary and RTI

13. Capital punishment: pros n
cons
14. Prison reforms
15. Master and the roster
16. PIL
THEME 4: FEDERALISM
2019
2014 Though the federal principle is dominant in our 1. Centre-state relationship
Constitution and that principle is one of its basic 2. Separation of
features, but it is equally true that federalism 3. Powers
under the Indian Constitution leans in favour of a 4. Inter-state water dispute
strong Centre, a feature that militates against the 5. Role of NITI Aayog
concept of strong federalism. Discuss. 6. Inter-State Council
2013 Constitutional mechanisms to resolve the inter- 7. Zonal Council
state water disputes have failed to address and 8. North-East Council
solve the problems. Is the failure due to structural 9. Fiscal Federalism
or process inadequacy or both? Discuss.
THEME 5: LOCAL GOVERNMENT

2019
2018 Assess the importance of Panchayat system in 1. Issues in decentralisation (issue
India as a part of local government. Apart from in 3F)
government grants, what sources the Panchayats 2. Women in Panchayats
can look out for financing developmental projects. 3. Social audit and social
2017 “The local self-government system in India has not accountability
proved to be effective instrument of governance”. 4. PESA, tribal rights and
Critically examine the statement and give your displacement
views to improve the situation. 5. Rajasthan government
2015 In absence of a well-educated and organized local scrapping educational criteria
level government system, `Panchayats’ and for local polls
‘Samitis’ have remained mainly political institutions
and not effective instruments of governance.
Critically discuss.
5
THEME 6: ELECTIONS
2019
Elections 2018 In the light of recent controversy regarding the use
of Electronic Voting Machines (EVM), what are the 1. Autonomy of Election
challenges before the Election Commission of India Commission
to ensure the trustworthiness of elections in India? 2. Proxy voting of NRI
2017 ‘Simultaneous election to the Lok Sabha and the 3. NOTA
State Assemblies will limit the amount of time and 4. EVM, VVPAT and transparency
money spent in electioneering but it will reduce 5. Electoral Bond Scheme and
the government’s accountability to the people’ transparency
Discuss. 6. Model Code of Conduct
2017 To enhance the quality of democracy in India the 7. State funding
Election Commission of India has proposed 8. Simultaneous elections
electoral reforms in 2016. What are the suggested 9. Decriminalisation of politics
reforms and how far are they significant to make 10. Right to Recall (Law
democracy successful? commission)
2016 The Indian party system is passing through a 11. Service voters
phase of transition which looks to be full of 12. Inner party democracy
contradictions and paradoxes.” Discuss. 13. Election Petition
14. Paid News
15. Independent Candidate
16. Returning Officers
THEME 7: CONSTITUTIONAL, STATUTORY AND QUASI-JUDICIAL BODIES

2019
Constitutional, 2018 “The Comptroller and Auditor General (CAG) has a 1. What are quasi-judicial bodies?
Statutory and very vital role to play.” Explain how this is reflected 2. Lokpal (issues in working or
Quasi-judicial in the method and terms of his appointment as duplicity of work)
bodies well as the range of powers he can exercise. 3. Relevance of NITI Aayog
2018 How far do you agree with the view that tribunals (India@75)
curtail the jurisdiction of ordinary courts? In view 4. CAG
of the above, discuss the constitutional validity and 5. Autonomy of institutions - CBI
competency of the tribunals in India.
2018 How is the Finance Commission of India
constituted? What do you about the terms of
reference of the recently constituted Finance
Commission? Discuss.
2016 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
6
whether audit of the Government’s Policy

implementation could amount to overstepping its
own (CAG) jurisdiction.
2016 What is a quasi-judicial body? Explain with the help
of concrete examples.
2015 “For achieving the desired objectives, it is
necessary to ensure that the regulatory
institutions remain independent and
autonomous.” Discuss in the light of the
experiences in recent past.
2014 The setting up of a Rail Tariff Authority to regulate
fares will subject the cash strapped Indian
Railways to demand subsidy for obligation to
operate non-profitable routes and services. Taking
into account the experience in the power sector,
discuss if the proposed reform is expected to
benefit the consumers, the Indian Railways or the
private container operators.
2013 Discuss the recommendations of the 13th Finance
Commission which have been a departure from
the previous commissions for strengthening the
local government finances.
2013 The product diversification of financial institutions
and insurance companies, resulting in overlapping
of products and services strengthens the case for
the merger of the two regulatory agencies, namely
SEBI and IRDA. Justify.
2013 ‘A national Lokpal, however strong it may be,
cannot resolve the problems of immorality in
public affairs’. Discuss.
THEME 8: GOVERNANCE
2019
Governance 2018 E-Governance is not only about utilization of the 1. Lateral Entry in services
power of new technology, but also much about 2. Integrity pact for transparency
critical importance of the ‘use value’ of information
3. E-governance
Explain.
2018 Citizens’ Charter is an ideal instrument of 4. Citizen charter
organizational transparency and accountability, 5. Official Secret Act
but. it has its own limitations. Identify the
6. RTI and Issues
limitations and suggest measures for greater
effectiveness or the Citizens Charter. 7. Police reforms
2017 Initially Civil Services in India were designed to
7
achieve the goals of neutrality and effectiveness, 8. Status of Women in Police

which seems to be lacking in the present context. 9. Corporate Governance
Do you agree with the view that drastic reforms
10. Island dev authority
are required in Civil Services. Comment.
2017 ‘The emergence of Self Help Groups(SHGs) in 11. NGO, SHG and
contemporary times points to the slow but steady maladministration
withdrawal of the state from developmental
12. Role of Pressure Groups
activities’. Examine the role of the SHGs in
developmental activities and the measures taken 13. Criminal law amendment bill
by the Government of India to promote the SHGs. 14. Benami transaction
2017 How do pressure groups influence Indian political
15. Real Estate regulation in India
process? Do you agree with this view that informal
16. Critical analysis of State Public
pressure groups have emerged as powerful than
formal pressure groups in recent years? Service Commission – 2nd ARC
2016 “Effectiveness of the government system at various Recommendations
levels and people’s participation in the governance
17. 2nd ARC recommendations on
system are inter-dependent.” Discuss their
relationship with each other in context of India. District Administration
2016 In the integrity index of Transparency
International, India stands very low. Discuss briefly
the legal, political, economic, social and cultural
factors that have caused the decline of public
morality in India.
2016 “In the Indian governance system, the role of non-
state actors has been only marginal.” Critically
examine this statement.
2016 “Traditional bureaucratic structure and culture
have hampered the process of socio-economic
development in India.” Comment.
2015 In the light of the Satyam Scandal (2009), discuss
the changes brought in corporate governance to
ensure transparency, accountability.
2015 “If amendment bill to the Whistleblowers Act, 2011
tabled in the Parliament is passed, there may be
no one left to protect.” Critically evaluate.
2015 Examine critically the recent changes in the rules
governing foreign funding of NGOs under the
Foreign Contribution (Regulation) Act (FCRA), 1976.
2015 The Self-Help Group (SHG) Bank Linkage
Programme (SBLP), which is India’s own
innovation, has proved to be one of the most
effective poverty alleviation and women
empowerment programmes. Elucidate.
2015 How can the role of NGOs be strengthened in India
for development works relating to protection of
the environment? Discuss throwing light on the
8
major constraints.
2014 Has the Cadre based Civil Services Organisation
been the cause of slow change in India? Critically
examine.
2014 The penetration of Self Help Groups (SHGs) in rural
areas in promoting participation in development
programmes is facing socio-cultural hurdles.
Examine.
2013 Though Citizen’s charters have been formulated by
many public service delivery organizations, there is
no corresponding improvement in the level of
citizens’ satisfaction and quality of services being
provided. Analyze.
2013 The legitimacy and accountability of Self Help
Groups (SHGs) and their patrons, the micro-
finance outfits, need systematic assessment and
scrutiny for the sustained success of the concept.
Discuss.
2013 Pressure group politics is sometimes seen as the
informal face of politics. With regards to the above,
assess the structure and functioning of pressure
groups in India.
9
SECTION-1
B ASIC
F EATURES OF THE
C ONSTITUTION
BASIC FEATURES OF THE CONSTITUTION
►BASIC STRUCTURE OF THE • The Court recognised that there is a distinction between
Ordinary law making power of Power of Parliament under
CONSTITUTION Article 13 and constituent power of the Parliament under
According to the Constitution, Parliament and the state Article 368. Court held that constitution makers did not
legislatures in India have the power to make laws within their use the expression Law under Article 13 (2) as including
respective jurisdictions. This power is not absolute in nature. Constitutional Law.
The Constitution vests in the judiciary, the power to • This would mean that Article 368 confers power to abridge
adjudicate upon the constitutional validity of all laws. If a law fundamental rights (Part III) or any other part of the
made by Parliament or the state legislatures violates any Constitution. The Court then added that despite the power
provision of the Constitution, the Supreme Court has the under Article 368, Parliament does not enjoy unlimited
power to declare such a law invalid or ultra vires. This check powers to amend the constitution. So, for the first time,
notwithstanding, the founding fathers wanted the Supreme Court in Kesavananda Bharati case held that
Constitution to be an adaptable document rather than a rigid amending power of Parliament cannot be exercised by the
framework for governance. Hence Parliament was invested Parliament in such a manner so as to destroy the BASIC or
with the power to amend the Constitution. Article 368 of the FUNDMENTAL FEATURES of the Constitution.
Constitution gives the impression that Parliament's amending
• Some of the features regarded by the Court as
powers are absolute and encompass all parts of the
Basic/fundamental and hence non-amendable are:
document. But the Supreme Court has acted with the
intention of preserving the original ideals envisioned by the ο Supremacy of the constitution
constitution-makers, the apex court pronounced that ο Republican and Democratic form of Government
Parliament could not distort, damage or alter the basic
ο Secular Character of the Constitution
features of the Constitution under the pretext of amending it.
The phrase 'basic structure' itself cannot be found in the ο Separation of power between – legislature, executive
Constitution. The Supreme Court recognised this concept for and judiciary
the first time in the historic Kesavananda Bharati case in 1973. ο Federal character of the constitution
SC ON JUDICIAL REVIEW PRIOR TO KESAVANANDA • The Court also held that the list of basic features was not
BHARATI CASE an exhaustive list and things can be added by Supreme
Supreme Court in the case of Golaknath held that the term Court if required. Thus, in the case of Minerva Mills, three
law as mentioned in Article 13 had a wider canvas and would more basic features were added –
also include any amendment made in the Constitution under ο Dignity of an individual secured by various fundamental
Article 368. Thus, law under Article 13 would also include rights and the mandate to build a welfare state
constitutional law. The Court for the first time held that contained in DPSP.
amendment of the constitution is within inclusive meaning of ο Unity and integrity of the nation
law under Article 13 and Article 368 should not be used by
ο Parliamentary System
Parliament to destroy the structure of the constitution. Thus,
Supreme Court effectively held that Constitutional IMPORTANCE OF JUDICIAL REVIEW
Amendment under Article 368 is law and is subject to judicial By saying that Parliament cannot override basic structure, it
review under Article 13. effectively means that SC has the power of judicial review to
WHAT WAS HELD IN KESAVANANDA BHARATI CASE? find out whether any legislation or executive order has
violated the basic structure of the Constitution. Courts have
• The Court in Kesavananda held that power to amend the
power of judicial review even for amendments proposed
Constitution is to be found in Article 368 itself.
under A-368. Courts can thus enquire into whether or not an
• The Court also held that laws made by the Parliament can amendment destroys the basic features of the Constitution. If
be categorised under two heads - an amendment goes beyond the provisions of the
1. The constituent power of Parliament to amend the Constitutions, the Court has the power of judicial review to
constitution under Article 368. declare such provisions as constitutionality invalid.
2. Ordinary law making power under Article 13 (2).
11
Constitution 25th Amendment added Article 31C having two • If a state cannot freely determine what it wants and how to
parts. Importance of judicial review can also be understood achieve it, it loses the rationale to exist. Further,
from the fact that in Kesavananda case, SC declared second sovereignty gives the state the dignity of existence.
part of Article 31C of the Constitution as invalid as it stated
Same critics, however, point out that the membership of
that law enacted to implement Article 39 (b) and Article 39 (c)
‘Commonwealth of Nations limits the sovereign status of
cannot be challenged in any Court even if it violates Article 14,
India in so far as this membership accepts the British
19 and 31. SC held that Courts have power of judicial review
King/Queen as the head of the Commonwealth. However,
and can enquire whether any law achieves the purpose for
this view is not correct. The Commonwealth is no longer
which it was enacted. Thus, we can say that judicial review is
the British Commonwealth. Since 1949 it has been an
of great importance and can be said to be one of the basic
association of sovereign equal friends who, because of
features of the Constitution.
their historical links, have preferred to join hands in the
Commonwealth for the promotion of their national
interests through cooperative efforts. India’s
►VALUES IN THE CONSTITUTION membership of the Commonwealth is a voluntary act and
INTRODUCTION a courtesy arrangement. British King/Queen as head of
the Commonwealth has no place in the Indian
• Constitution means a set of fundamental principles, basic
Constitution. India owes no allegiance to him. “British
rules and established precedents (means
King is a symbolic head of the Free Association of
standards/instances). It identifies, defines and regulates
Commonwealth.” (Nehru) Prof. Ramaswamy has rightly
various aspects of the State and the structure, powers and
observed. “Indian membership of Commonwealth is a
functions of the major institutions under the three organs
courtesy arrangement devoid of any constitutional
of the Government – the executive, the legislature and the
significance.”
judiciary.
b) Socialist
• It also provides for rights and freedoms of citizens and
spells out the relationships between individual citizen and • The word ‘socialist’ was added to the Preamble by the
the State and government. 42nd amendment act of 1976.
• Our Constitution is not just a mere set of fundamental • It stands to end all forms of exploitation in all spheres of
laws that form the basis of governance of our country but our existence.
it embodies and reflects certain basic values, philosophy
• Our Constitution directs the state to ensure a planned and
and objectives that were held very dear to our founding
coordinated social advance in all fields while preventing
fathers.
concentration of wealth and power in few hands.
• The values expressed in the Preamble are sovereignty,
• Even after adopting liberalization, privatization and
socialism, secularism, democracy, republican character,
competitive economic system, the Indian state remains
justice, liberty, equality, fraternity, human dignity and the
committed to secure socialistic goals-Socio-economic
unity and integrity of the Nation.
equality and an egalitarian society. Securing of socialist
• In addition to them, our Constitution promotes respect for
objectives of development through democratic and liberal
diversity and minority rights, accommodates regional and
means continues to be a basic objective of India.
political assertions through federalism and fosters
international peace and cooperation. c) Secularism
THE VALUES IN THE CONSTITUTION ARE • The ideal of secularism in Indian context implies that our
country is not guided by any religion or any religious
a) Sovereignty
considerations. By the 42nd Amendment, the term
• By declaring India as a sovereign entity, Preamble
‘Secular’ was incorporated in the Preamble.
emphasizes complete political freedom.
• It allows all its citizens to profess, preach and practice any
• It testifies to the fact that India is no longer a dependency
religion of their liking.
or colony or possession of British Crown.
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• Articles from 25 to 28 ensure freedom of religion to all its • Democracy contributes to stability in the society and it
citizens. Constitution strictly prohibits any discrimination secures peaceful change of rulers. It allows dissent and
on the ground of religion. All minority communities are encourages tolerance.
granted the right to conserve their distinctive culture and e) Republic
the right to administer their educational institutions.
• The preamble declares India to be a Republic. Negatively,
Indian vs. Western Secularism this means that India is not ruled by a monarch or a
• Indian Secularism has a place not only for the right of nominated head of state. Positively, it means that India has
individuals to profess their religious beliefs but also for the an elected head of state who wields power for a fixed
right of religious communities to establish and maintain term.
educational institution. f) Justice
• Indian Secularism is concerned as much with inter- • Indian Constitution seeks to secure Justice-social,
religious domination as it is with intra-religious economic and political, for all the citizens.
domination. It also ushered ideas of inter-community • Social Justice means the absence of socially privileged
equality to replace the notion of hierarchy. classes in the society and no discrimination against any
• Indian secularism equally opposed the oppression of dalits citizen on grounds of caste, creed, colour religion, sex or
place of birth.
and women within Hinduism, the discrimination against
women within Indian Islam or Christianity, and the • Economic Justice means no discrimination between man
possible threats that a majority community might pose to and man on the basis of income, wealth and economic
the rights of the minority religious communities. values. It involves the concept of equitable distribution of
wealth.
• Indian secularism does not erect a wall of separation
between the state and religion. This allows the state to • Political Justice means equal, free and fair opportunities
intervene in religions, to help or hinder them without the for allthe people for participation in the political process.
impulse to control or destroy them. g) Liberty
d) Democracy • It was well understood by the fathers of our Constitution

that the ideal of democracy was unattainable without the
• We have adopted parliamentary democracy to ensure a
presence of certain minimal rights which are essential for a
responsible and stable government.
free and civilized existence. Therefore, the Preamble
• The people enjoy equal political rights ; Universal Adult mentions these essential individual rights such as freedom
Franchise, Right to contest elections, Right to hold public of thought, expression, belief, faith and worship which are
offices, Right to form associations and the Right to criticize assured to every member of the community against all the
and oppose the polices of the government. Freedom of authorities of States by Part-III of the Constitution.
expression and speech, freedom of press and freedom to • The Constitution grants and guarantees the liberty of
assemble peaceably, have been guaranteed to all citizens thought, expression, belief, faith and worship.
Right of information forms a part of the freedom of speech
h) Equality
and expression. It is on the basis of these rights, that the
• Every citizen of India is entitled to equality before law and
people participate in the process of politics. They elect
equal protection of law. It has been described in terms of
their government.
its two variables; (i) Equality of status i.e. natural equality
• For all its acts, the government is responsible before the of all persons as equal and free citizens of India enjoying
people. The people can change their government through equality before law. (ii) Equality of opportunity i.e.
elections. The government enjoys limited powers. It always adequate opportunities for all to develop.
acts under the Constitution which represents the supreme • For securing the equality of status what is needed is
will of the people. equality before law and end of discrimination or
restrictions based on grounds of religion, race, sex, colour,
13
creed, caste, residence etc. The Indian Constitution grants and honourablerelations between nations; and foster
and guarantees the fundamental Right of Equality to all. respect forinternational law and treaty obligations in
i) Fraternity thedealings of organised people with one another;and
encourage settlement of international disputesby
• Fraternity stands for the spirit of common brotherhood. In
arbitration. Thus India too cherishes the idealof universal
the absence of that, a plural society like India stands
brotherhood beyond our nationalborder.
divided. Therefore, to give meaning to all the ideals like
justice, liberty and equality our Constitution gives ample • These provisions enshrined in Article 51of the Indian
stress on fraternity. Constitution have been a beaconlight that provides a ray
of hope for saving theworld from the impending nuclear
• Article-51A(e) therefore, declares it as a duty of every
andenvironmental catastrophe.
citizen of India to promote harmony and the spirit of
common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional
diversities.
►PRESIDENTIAL AND
• Article 51A(f) further asks each citizen to value and PARLIAMENTARIAN SYSTEM OF
preserve the rich heritage of our composite culture. GOVERNMENT
j) Dignity of the individual Every country in the world has its own constitution, according
• Fraternity and dignity of the individuals have a close link. to which policies are framed, government bodies and
Fraternity is only achievable when the dignity of the institutions function and decisions are made. In finer terms, it
individual will be secured and promoted. Therefore, the is the constitution, that covers all the aspects of the political
founding fathers of our Constitution attached supreme system adopted by the country. Though democracy comes in
importance to it. various shapes and sizes, the two most prominent forms of it
are Parliamentary and Presidential, based on the nature of
• Our Constitution therefore directs the state through the
relationship between the executive and legislative organ of
Directives enshrined in the Part-IV of our Constitution to
the government
ensure the development of the quality of life to all sections
of people. Our Constitution acknowledges that all citizens, PRESIDENTIAL FORM OF GOVERNMENT
men and women equally, have the right to an adequate • Presidential democracy is a form of government in which
means of livelihood (Art.-39 a) and just and humane the executive branch is elected separately from the
conditions of work (Art.-42). legislative branch.
• Article-17 has abolished the practice of untouchability by • When a country follows the Presidential form of
declaring it as a punishable offence. government, it denotes that there is only one person as
k) Unity and integrity of the Nation the head of the state and government, i.e. the President.
• To maintain the independence of the country intact and • The president, elected directly by the people and
enduring, unity and integrity of the nation is very essential. answerable to the voters, is elected for a fixed term and
Therefore, the stress has been given on the ideal of cannot be removed except by extraordinary measures.
fraternity which would foster unity amongst the • The President then appoints his or her cabinet of ministers
inhabitants. Without a spirit of brotherhood amongst the (or “secretaries” in US parlance). Ministers/Secretaries
people the ideals of unity and integration of people and usually are not simultaneously members of the legislature.
nation seem unattainable. Because the senior officials of the executive branch are
• Our Constitution expects from all the citizens of India to separately elected or appointed, the presidential political
uphold and protect the unity and integrity of India as a system is characterised by a separation of powers,
matter of duty. wherein the executive and legislative branches are
independent of one another.
l) International peace and a just international order
• Presidents have great control over their cabinet
• Indian Constitution directs the state tomake endeavour to
appointees who serve at the President’s pleasure.
promote international peaceand security; maintain just
14
• The United States of America represents the strongest the ruling party is voted out of the legislature, the
form of presidentialism. executive also changes. Continued co-operation between
PARLIAMENTARY FORM OF GOVERNMENT the executive and legislature is required for the
government to survive and to be effective in carrying out
• Parliamentary systems, unlike presidential systems, are
its programs.
characterized by a fusion of powers between the legislative
and executive branches. • In a parliamentary system, the legislature holds supreme
power.
• The executive is drawn from the legislature and is
collectively responsible to it.
• The Prime Minister is the real head of the government and
selects his ministers from within the legislature itself. If
COMPARISON BETWEEN PRESIDENTIAL FORM AND PARLIAMENTARIAN FORM OF

GOVERNMENT
PRESIDENTIAL FORM PARLIAMENTARIAN FORM
• Executive and legislature are separate and independent of • Executive and legislature and closely related and executive
each other (strict separation of power) is drawn from legislature (dual membership)
• It has single executive , president who is head of both state • Dual executive with president as head of state( de jure head)
and government . and Prime Minister as head of government ( de-facto head).
• Executive is not accountable to the legislature and is • The executive is accountable to the legislature (collective
independent of it.(President and legislators elected responsibility and can be removed through no confidence
• separately for a fixed term.) motion)
• Tenure of the president is fixed and he can be removed only • The tenure of the executive is not fixed. The Council of
in extra ordinary circumstances through impeachment Ministers is dismissed if it loses the confidence of the
legislature before its tenure is over.
• Person outside the legislature can be appointed as a
minister • A minister inevitable has to be a member of the legislature.
• No dissolution of lower house by President • Lower house can be dissolved by the Prime Minister.
SHOULD INDIA SHIFT A PRESIDENTIAL SYSTEM? But of late there have been debates that India should shift to
India chose to go with parliamentary form of government a presidential form of government as it is felt that
because it was familiar with its working during the times of parliamentarism is fraught with indiscipline and inefficiencies.
British Rule. Further since India is an extremely diverse ISSUES WITH PARLIAMENTARY SYSTEM OF INDIA-
country with a lot of groups with conflicting interests , the • Unqualified Legislators and criminalisation of
need was to have a more responsible and representative politics: The legislators are largely unqualified to legislate
government, which parliamentary form of government was and becomes a legislator only to be able to become
offering. Moreover, the Constitution of India rejected the executive (minister) one day. Further. A lot of people with
Presidential system as in the U.S.A. on the grounds that criminal background use money and muscle strength to
under such a system, the Executive and the Legislatures are become legislators to further their gains.
separate from and independent of each other, which is likely
• Accountability deficit due to dilution in separation of
to cause conflicts between them, which our infant democracy
power: The legislature cannot truly hold the executive
could ill-afford to risk.
accountable since the government wields the majority in
the House and there are anti-defection laws so an MP of a
15
party doesn’t vote against his party high command’s wish. arises, it could lead to a stalemate in governance because
Hence in reality, since legislature is not distinct from the since both the President and the legislature have
executive it is not able to do justice to its constitutional democratic legitimacy, they might not agree to others
mandate of law making. point of view.
• Instability due to coalition government: Coalition • Might not ensure wider representation to all people in a
governments focus more on politics than on policy or diverse country like India.
performance. It has forced governments to concentrate FEASIBILITY OF PRESIDENTIAL SYSTEM
more on staying in office instead of governance.
Keshvananda Bharati case established the basic structure
• No continuity in policies: Further since there is an doctrine rule in India and includes parliamentary form of
uncertainty related to tenure, there is no continuity in government as one of the basic features of the constitution.
polices because a change in ruling party causes a shift in
Hence, bringing in a Presidential system without an
the policy stance too.
amendment to this doctrine, will amount to violation of the
• Distortion of Voter Preferences: It has distorted voting ‘basic structure’ of the Constitution , unless the Supreme
preferences too. Voters, who support a want to see, say, Court takes a completely different view and override its
Narendra Modi as Prime Minister or Mamata Banerjee as earlier decision with a higher majority.
Chief Minister, have to vote for an MP or MLA they do
Further despite its drawback, the Parliamentary system has
recognise themselves with merely because he/she belongs
several advantages which are typically suited to Indian polity.
to Mr. Modi’s or Ms Banerjee’s party.
• Harmony Between Legislature and Executive: The
MERITS OF PRESIDENTIAL SYSTEM
greatest advantage of the parliamentary system is that it
• Stability of the Government: Since Presidential form of ensures harmonious relationship and cooperation
government is elected for a fixed term , it ensures stability between the legislative and executive organs of the
of the government. The executive can carry on with its government. The executive is a part of the legislature and
policy till the end of its full term. It helps in bringing both are interdependent at work. As a result, there is less
stability and continuity to administration and governance. scope for disputes and conflicts between the two organs.
• Unhindered Decision making: The presidential executive • Responsible Government : By its very nature, the
is free from obstacles such as political pressure and parliamentary system establishes a responsible
coalition issues. He makes his own decisions and gets government. The ministers are responsible to the
them implemented through his own ministers. Further, the Parliament for all their acts of omission and commission.
executive is free from the evils of party influence in his The Parliament exercises control over the ministers
daily administration as compared with parliamentary form through various devices like question hour, discussions,
of government. adjournment motion, no confidence motion, etc.
• Checks and Balances: In the Presidential system, the • Prevents Despotism: Under this system, the executive
executive, legislature and judiciary are independent of authority is vested in a group of individuals (council of
each other. This separation of power contributes to checks ministers) and not in a single person. This dispersal of
and balances in the system making it more democratic authority checks the dictatorial tendencies of the
since there is no absolute concentration of powers in the executive. Moreover, the executive is responsible to the
same body and the presence of other organs ensure Parliament and canbe removed by a no-confidence
proper working of the system. motion.
DEMERITS OF THE PRESIDENTIAL SYSTEM • Ready Alternative Government: In case the ruling party
• Possibility of despotism: If the legislature is dominated loses its majority, the Head of the State can invite the
by the same party to which the President belongs, a opposition party to form the government. This means an
“strong President” may show a despotic tendencies and alternative government can be formed without fresh
can prevent any contrary move from the legislature. elections. Hence, Dr Jennings says, ‘the leader of the
• Possibility of stalemate: If the legislature is dominated opposition is the alternative prime minister’.
by a party opposed to the President’s party and a deadlock
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• Wide Representation: In a parliamentary system, the majority (i.e., more than 50%) of 'the total membership of
executive consists of a group of individuals (i.e., ministers that House and by a majority of not less than two thirds of
who are representatives of the people). Hence, it is the members of that House present and voting, it shall be
possible to provide representation to all sections and presented to the President for his assent and upon such
regions in the government. The prime minister while assent being given to the Bill, the Constitution shall stand
selecting his ministers can take this factor into amended in accordance with the terms of the Bill
consideration. A constitutional amendment bill under article 368 does not
require prior permission of the president and can even be
introduced by a private member. Further in case of
►AMENDMENT TO THE disagreement there is no provision for a joint sitting of the
CONSTITUTION two houses. A constitution amendment can’t be made by
ordinance.
Pandit Nehru has observed that the Constitution should not
be so rigid that it cannot be adapted to the address the If an amendment is to the federal features of the constitution,
changing needs of national development and strength. Indian half the state legislatures should approve it by simple
constitution has adopted elements of flexibility in an majority, then it is sent for president’s assent.
otherwise rigid constitution to make space for any demand SOME IMPORTANT AMENDMENTS
necessitated by changing times.
1. Constitution First Amendment Act, 1951 – It made
Hence, it can be said Indian Constitution is neither rigid nor several changes to the Fundamental Rights provisions of the
flexible. It is a synthesis of both. Article 368 deals with constitution. It provided against abuse of freedom of speech
matters regarding amendment to the constitution. After the and expression, validation of zamindari abolition laws, and
Keshavnanda bharati case, Supreme Court ruled that clarified that the right to equality does not bar the enactment
parliament can’t amend the “basic structure of the of laws which provide "special consideration" for weaker
constitution. sections of society.
TYPES OF AMENDMENTS • This amendment added 3 more grounds of restrictions to
1. Passed by a simple majority: certain amendments can be Article 19 (2),viz. 'Public order’, 'friendly relations with
done through simple majority of parliament (present and foreign states’ and 'incitement to an offence’. It added the
voting) and hence are not considered as amendments word 'reasonable’ before the word ‘restriction’ and thus
under article 368. Eg alteration of boundary, area or name made restrictions a justiciable issue.
of a state (Article 3), Second Schedule etc. • The amendment added 2 new Articles- 31-A and 31-B, to
2. Passed by special majority : The majority of the validate certain Land Reforms Laws (Zamindari Abolition
provisions in the Constitution need to be amended by a Law).
special majority of the Parliament, that is, a majority (that • It added Ninth schedule which made Acts named therein
is, more than 50 per cent) of the total membership of each beyond the challenge of Courts for infringement of
House and a majority of two-thirds of the members of fundamental rights guaranteed in Article 14,19 and 31.
each House present and voting. Eg Fundamental Rights,
• A new clause (4) was added to Article 15 empowering the
DPSP etc
state to make special provisions for advancement of the
3. Passed by special majority and ratification by half the socially and educationally backward classes of citizens.
state legislatures: this is required for all those provisions Provided that state trading and nationalisation of any
which affect the federal structure of the constitution. Eg - trade or business by the state is not to be invalid on the
election of the President, Supreme Court and high courts, ground of violation of the right to trade or business.
Distribution of legislative powers etc.
• It placed reasonable restrictions on fundamental rights
PROCEDURE OF AMENDMENT UNDER ARTICLE 368 and added three more grounds of restrictions on freedom
An amendment of the Constitution may be initiated only by of speech such as public order, friendly relations with
the introduction of a Bill for the purpose in either House of foreign states and incitement to an offence.
Parliament, and when the Bill is passed in each House by a 2. Constitution 25th Amendment Act, 1971
17
• By amending article 31(2), it permitted the acquisition of • It reduced the life of Lok Sabha and State Legislative
private property by the government for public use, on the Assemblies again to five years and thus restored the status
payment of compensation which would be determined by quo ante.
the Parliament and not the courts by amending article • Right to Property was taken out from the list of
31(2) Fundamental Rights and declared a legal right.
• It added a new clause, Article 31C to the Constitution. Up • It cancelled 39th Amendment which had deprived the
till 1971, the position was that Fundamental Rights Supreme Court of its jurisdiction to decide disputes
prevailed over the DirectivePrinciples of State Policy and concerning election of the President and the Vice-
that a law enacted to implement a Directive Principle could President.
not be valid if it conflicted with a Fundamental Right.
• A new provision was added to Article 74(1) saying that the
• Article 31C sought to change this relationship to some President could require the council of ministers to
extent by conferring primacy on Articles 39(b) and 39(c) reconsider its advice to him, either generally or otherwise
over Articles 14, 19 and 31. and the President should act in accordance with the advice
3. Constitution 42nd Amendment Act, 1976 tendered after such re-consideration.
• Rightly known as the mini constitution, this Act brought • Provided that an Emergency can be proclaimed only on
several changes in the Constitution. the basis of written advice tendered to the President by
• The life of the Lok Sabha and State Legislative Assemblies the Cabinet
was extended from 5 to 6 years. Executive • Article 103 and 192 relating respectively to decisions on
• It amended Article 74 to State explicitly that the President questions as to disqualification of members of Parliament
shall act in accordance with the advice of the Council of and of State Legislatures were replaced to provide that the
Ministers in discharge of his functions. decision on the question as to disqualification, by the
President in the case of a member of a State Legislature,
• Gave primacy to the Directive Principles of State Policy
will be in accordance with the opinion of the Election
over the Fundamental Rights.
Commission.
• Inserted Article 51-A to create a new part called IV-A in the
• Article 257A which gave Central government power to
Constitution, which prescribed the Fundamental Duties to
send its armed forces or other forces of the union to
the citizens.
address a grave situation, was omitted.
• Established the supremacy of Parliament and curtailed the
• The ground of “internal disturbance” was substituted by
powers of Judiciary.
the ground of “armed rebellion” in Article 352
• It added words ‘Socialist’ and ‘Secular ‘ to the preamble and
• Fundamental Rights Guaranteed by Articles 20 and 21
changed the words ‘Unity of the nation’ to ‘Unity and
cannot be suspended during a national emergency.
integrity of the nation’.
• It made president to declare national emergency only on
• The Act added Article 257A in the Constitution to enable
written recommendation of cabinet. Duration of national
the Centre to deploy any armed force of the Union, or any
emergency should not be extended more than 6 months
other force under its control. For dealing with any grave
at a time.
situation of law and order in any State.
5. Constitution 99th Amendment Act, 2004
• Prior to 42nd Amendment Act, the President could declare
emergency under Article 352 throughout the country and • The government, through 99th constitutional amendment,
not in a part of the country alone. The Act authorised sought to replace the collegium with the National Judicial
the President to proclaim Emergency in any part of the Appointments Commission.
country. • The Supreme Court however struck NJAC down stating it
4. Constitution 44 th
Amendment Act, 1978 violates “judicial independence”, which is an aspect of the
basic structure.
The 44th Amendment passed in 1978 undid most of the
distortions introduced into the Constitution by the 42nd • National Judicial Appointments Commission (NJAC) was a
Amendment of the Constitution. proposed body which would have been responsible for the
18
appointment and transfer of judges to the higher judiciary Hereby discussing the meaning of NRC, criteria for it and
in India. critical analysis of it.
6. Constitution 100th Amendment Act, 2015 WHAT IS NRC?
• This amendment was made to give effect to the Land • NRC was first prepared after the census of 1951. However,
Boundary Agreement, 1974 signed between India and now NRC has been disconnected with the census and
Bangladesh as well as the Protocol to the agreement people have to show that they were Indian citizen listed in
signed between the Prime Ministers of the two countries in NRC of 1951 or they were listed in any of the state’s
2011. electoral rolls prepared till 24th March 1971.
• No Constitutional Amendment is required for a resolution • It should be kept in mind that the originally agreed cut-off
of the un-demarcated segments of the land boundary by date was 1985 Assam Accord. However, the successive
an agreement as this is within the competence of the state governments did not take much interest in
Executive-wing of the Government. However, the issue of identifying the foreigners and deporting them.
exchange of enclaves and adverse possessions involves • In view of the above developments, in 2005 another
transfer of territories from one state to another and agreement was signed between the Government of India
therefore requires a constitutional amendment. Following the AASU to update the NRC, which was published in 1951.
are the grounds that befell the passing of the said But it was stopped to control violence started in different
amendment: parts of the state.
7. Constitution 101st Amendment Act, 2016
WHAT IS ASSAM ACCORD?
• It introduced Goods and Service Tax(GST) in India from
• In 1985, the Indian Government and the All Assam
1stApril 2017
Students’ Union (AASU) signed the Assam Accord. Through
• It added articles 246A, 269A , 279A this accord, all those foreigners who had entered Assam
• Repealed article 268A between 1951 and 1961 shall be given full citizenship
including the right to vote.
• Amended 6th schedule
nd • All those migrants who came to Assam between 1961 and
8. Constitution 102 Amendment Act, 2018
1971 will be denied voting rights for 10 years but enjoy the
Gave the national commission for backward class a citizenship rights.
constitutional status and brought it at par with National
• People who entered the state after 24 March 1971 will be
commission for SC and ST
treated as foreigners and will be deported.
rd
9. Constitution 103 Amendment Act, 2019
HOW UPDATION OF NRC WAS DONE?
It provides 10 per cent reservation in government jobs and
The criteria to identify the residents of Assam were done on
education institutions to economically backward section of
the basis of Assam Accord. The people were excluded on the
the society in the general category.
basis of the following criteria:
a) Doubtful Voters: These have disenfranchised as they failed
►NATIONAL REGISTER OF CITIZENS to prove their citizenship.
b) Descendants of Doubtful voters
Assam has been a largest recipient of migrants especially
from Bangladesh (erstwhile East Pakistan). These migrants c) Persons whose cases have been pending before the
influenced the demography of the state and also caused loss foreigners’ tribunal.
of opportunities and posed a heavy burden on the state’s d) Descendants of persons whose cases are pending before
resources for the people who are native of Assam. the foreigners’ tribunal.
National Register of Citizens (NRC) has been used as a tool to In this fashion around 40 lakh people are left of the draft list
identify illegal immigrants and to send them back to their and this has given rise to the problem that we see today.
native country/region.
19
be their citizens. resources in a prudent

ARGUMENTS IN
ARGUMENTS manner.
FAVOUR OF THE
AGAINST THE DRAFT
DRAFT RECENT DEVELOPMENT
• In the backdrop of updation process of National Register
• The NRC has caused a • A majority of people who
of Citizen in Assam, Ministry of Home Affairs has amended
humanitarian crisis for have been tagged as
the Foreigners (Tribunals) Order, 1964.
lakhs of people by making foreigners have found a
them stateless. place in citizen’s register • The amended order has empowered District Magistrates
and now they can live in all States and Union Territories to set up tribunals to
• The burden of proof lies
freely without any stigma decide whether a person staying illegally in India is a
with the people and it is
or suspicion. foreigner or not.
very difficult for people to
prove their citizenship • The Government has • Earlier, the powers to constitute tribunals were vested only
who do not have paper assured that those who with the Centre.
records. This problem has are left out of the NRC will ISSUES IN UPDATION OF NRC
specially impacted people get a chance to file their
• Administrative and procedural discrepancies affect the
who are illiterate and claim and this can be
marginalised and vulnerable the most as they are not able
poor. extended further to
to produce enough documents in limited time due to their
• The NRC has divided the include all those who are
limited access.
people on communal lines citizens.
• There have been instances where due to lack of
and trust and mutual • Supreme Court has
procedural safeguards, Tribunals have issued notices to
respect between the clarified that this list can’t
entire families, instead of just the suspected
communities is under be the basis for taking
“foreigner”. This makes the entire family vulnerable to
threat. coercive action against
orders of the Tribunal.
• Many political parties have anyone. Election
commission has also said • There are reports which shows that Foreigners Tribunals
tried to use this issue for
that the names of people habitually declare individuals to be “foreigners” on the
their political gain and this
won’t be removed from basis of clerical errors in documents, such as a spelling
made solving this problem
the voter rolls. mistake, an inconsistency in age, and so on. This affects
a very difficult issue.
the marginalised and vulnerable the most.
• There is no clarity about • It is important for
developing country like • At times tribunal passes orders without hearing the other
what we will do with the
India to plan use of side. This results in putting people in detention camps
people who are identified
resources for the without being heard.
as foreigners/illegal
immigrants. Bangladesh development of people.
has never accepted that NRC will help the
these illegal migrants can governments to plan the
SPICE APPROACH
• Assam has been facing the issue of migration from other nations since 1970s, thus NRC may help
in weeding out illegal immigrants and deter further influx.
• This will help in better distribution and utilization of resources and maintenance of equality and
Social dimension
peace in the region.
• However, on the flip side, those who are not recognized under NRC, will end up in shelter homes
and inhumane conditions.
Political/Legal • Updation of NRC will provide identity to many people – they will be able to enjoy political,
20
Dimension economic and social rights.

• The provisions governing NRC update in Assam are The Citizenship Act, 1955, and The Citizenship
(Registration of Citizens and Issue of National Identity cards) Rules, 2003. Hence provide legal
backing to this.
• It may increase the communal politics in the region as politicians are using the ground reality for
political gains.
• Maintaining a register of citizens may seem to be necessary given the ever-increasing threats
to national security; but strong institutional mechanism will be needed for it to work in a
country like India. It needs to be complemented by practical implementation measures such
Institutional
as robust and accurate recording of births and deaths, and ensuring that the nationality of a
dimension person is rightfully determined, preferably at birth.
• Further there is a need to establish robust mechanism for providing shelter and basic
amenities to stateless people until provisions of their deportation has not been finalized.
• The influx of migrants changes the cultural structure of the destination region.
Cultural dimension
• Influx of migrants has changed the demography of the region.
• The influx of migrants has put pressure on the usage of resources because of increase in
Economic population in the destination region.
dimension • It created inequality. The NRC will help in identification of citizens who are sole owner of Indian
resources.
►CITIZENSHIP RULES AMENDMENT • Illegal migrants may be imprisoned or deported under the
Foreigners Act, 1946 and the Passport (Entry into India)
ISSUE Act, 1920.
The Citizenship (Amendment) Bill, 2016, has led to protests in • These Acts empower the Union government to regulate
the North-East after its passage in the Lok Sabha. The the entry, exit and residence of foreigners in India.
proposed Bill is in complete violation of Assam Accord of
CITIZENSHIP AMENDMENT BILL, 2016
1985 as it intends to give legal sanction to some of the illegal
immigrants from Bangladesh. • The Bill amends the Citizenship Act, 1955 to make illegal
migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis
Hereby discussing the salient features of the bill and issues
and Christians from Afghanistan, Bangladesh and Pakistan,
arising out of it.
eligible for citizenship.
INDIAN CITIZENSHIP ACT, 1955 ON ILLEGAL MIGRANTS
• Under the Act, one of the requirements for citizenship by
• The Indian Citizenship Act, 1955 provides for acquisition naturalisation is that the applicant must have resided in
and determination of Indian Citizenship. India during the last 12 months, and for 11 of the previous
• As per the 1955 Act, a person may become an Indian 14 years.
citizen if they are born in India or have Indian parentage or • The Bill relaxes this 11 years’ requirement to 6 years for
have resided in the country over a period of time. persons belonging to the above mentioned six religions
• However, illegal migrants are prohibited from acquiring and three countries.
Indian citizenship under the 1955 Act. • Under the Citizenship Act of 1955, foreigners who come to
• As per the Act, an illegal migrant is a foreigner who enters India without valid travel documents, or stay in the country
the country without valid travel documents, like a passport beyond their visa period, are considered illegal migrants.
and visa, or Enters with valid documents, but stays beyond • The Bill however, allows certain illegal migrants to
the permitted time period. stay in India without being imprisoned or deported.
21
WHAT IS THE PURPOSE OF THE CITIZENSHIP accordance with the provisions of the Foreigners Act, 1946
(AMENDMENT) BILL, 2016? and the Foreigners (Tribunals) Order 1964.
• The Citizenship (Amendment) Bill, 2016 aim to provide • Names of Foreigners so detected will be deleted from the
citizenship to those who had been forced to seek shelter in electoral rolls in force.
India because of religious persecution or fear of
• Such persons will be required to register themselves
persecution in their home countries.
before the Registration Officers of the respective districts.
• They are primarily Hindus, Sikhs, Jains, Buddhists, Parsis
and Christians from Afghanistan, Pakistan and Bangladesh. • On the expiry of a period of ten year following the date of
detection, the names of all such persons which have been
HOW IS IT AGAINST THE ASSAM ACCORD?
deleted from the electoral rolls shall be restored.
Assam Accord was signed between Government of India,
state government of Assam and the leaders of Assam • Foreigners who came to Assam on or after March 25, 1971
movement i.e. All Assam Students’ Union (AASU) and the All shall continue to be detected, deleted and expelled in
Assam Gana Sangram Parishad (AAGSP) on 15th August, accordance with law.
1985. The leaders of Assam movement were against granting CITIZENSHIP AMENDMENT BILL VS NRC
of Indian citizenship to illegal migrants from Bangladesh. NRC regards all migrants who have come to India after
• As per the Accord, 1st January, 1966 shall be the base date March, 24, 1971 as illegal irrespective of their religion. Such
and year for purposes of detection and deletion of illegal immigrant needs to be deported back to Bangladesh as
foreigners. per Assam Accord. But Citizenship Amendment Bill provides
• Foreigners, who came to Assam after 1st January, 1966 citizenship rights to illegal migrants on the basis of religion.
and upto 24th March, 1971 shall be detected in
CITIZENSHIP (AMENDMENT) BILL, 2016 V. NRC
CITIZENSHIP (AMENDMENT) BILL, 2016 NRC
• This Bill allows citizenship status to some illegal • NRC does not discriminate migrants on the grounds of religion
immigrants who came to India after March 24, 1971 whereas the Citizenship Amendment Bill discriminates on the
based on religious identities. grounds of religion.
• This means that illegal migrants who are Hindus, Sikhs, • NRC puts the onus on migrants to prove their status of residence
Buddhists, Jains, Parsis and Christians from prior to 1971 based on series of documents which will help them
Afghanistan, Bangladesh and Pakistan will not be in registering themselves as citizens. Whereas this is not the case
deported or imprisoned for being in India without valid with Citizenship Amendment Bill.
documents.
KEY ISSUES • This implies that illegal migrants from these countries who
a) Violation of Article 14: are Muslims, other minorities who do not belong to the
above groups (eg. Jews), or Atheists who do not identify
• The Bill provides that illegal migrants belonging to
with a religious group will not be eligible for citizenship.
specified minority communities from Afghanistan,
Bangladesh or Pakistan will not be treated as illegal • This provision violates the right to equality guaranteed
migrants under the Act, making them eligible for Indian under Article 14 of the Constitution because it provides
citizenship. These minority communities are Hindus, differential treatment to illegal migrants on the basis of
Sikhs, Buddhists, Jains, Parsis and Christians. their religion.
22
b) Wide ground for cancelling OCI registration: c) Other issues
• Under the 1955 Act, an Overseas Citizen of India (OCI) • Acceptance of such illegal immigrants by Bangladesh
cardholder’s registration may be cancelled if he violates a remains a critical issue.
law for which he is: (i) sentenced to imprisonment for two • Modalities of deportation are still not clear as it will involve
years or more, and (ii) within five years of his OCI negotiations with Bangladesh on various angles including
registration. that of security.
• This amendment grants the central government wide • Places where these illegal immigrants shall be deported.
discretion to cancel OCI registration for a range of • Issue of discrimination on grounds of religion as the
violations. This will include serious offences like murder, provisions of Amendment Bill can be challenged on
as well as minor offences like violation of a traffic law (such grounds of violating Article 14 of the Indian Constitution.
as parking in a no-parking zone or jumping a red light).
SPICE APPROACH
According to the bill, people of the following religions Hindus, Sikhs, Buddhists, Jains, Parsis and
Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrant. Thus it
Social dimension will lead to migration of many people from across the border. This may have serious negative
impacts on the socio-cultural, demographic and political fields of Assam and other states of the North
East.
The bill tries to discriminate between religions and ignores Muslim minorities in neighboring
countries. It undermines the effect of the Assam Accord signed in 1985. According to the Assam
Accord, any person who can’t prove their ancestor’s presence in India before March 24 1971 will be
deemed as an illegal immigrant.
Political/Legal The Assam Accord didn’t discriminate on the basis of religion and it ended the 6-year long agitation
Dimension against illegal immigration in the state of Assam. However, the Citizenship Amendment Bill has tried
to change the definition of illegal immigrants and excluded religious minorities from the illegal
immigrant list.
The NRC is being updated to identify illegal immigrants and send them back to their country of origin.
But bill changes the definition of illegal immigrants, hence is in clash with NRC.
Institutional Union Home Ministry will be responsible for providing citizenship to the migrantsafter due scrutiny
dimension and recommendation of district authorities and the State Government.
It will change the culture equation of the region, especially North-East, which may deteriorate the law
Cultural dimension
and order situation due to clashes on resources.
Economic The influx of migrants will add burden to the government exchequer as minimum basic amenities
dimension have to be provided to the migrants.
►LAW COMMISSION REPORT ON HATE principle is to ensure that this liberty is not exercised to the
detriment of any individual or the disadvantaged section of
SPEECH the society. In a country like India, with diverse castes, creed,
Responsible speech is the essence of the liberty granted religions and languages, this issue poses a greater challenge.
under Article 21 of the Constitution. One of the greatest Hereby discussing the concept related to Hate Speech and
challenges before the principle of autonomy and free speech recommendations given by Law Commission.
23
WHAT IS HATE SPEECH? gravely threatening words either spoken or written, signs,
Hate speech is speech perceived to disparage a person or visible representations within the hearing or sight of a
group of people based on their social or ethnic group4 such person with the intention to cause, fear or alarm; or
as race, gender, age, ethnicity, nationality, religion, sexual advocates hatred by words either spoken or written, signs,
orientation, gender identity, disability, language ability, visible representations, that causes incitement to violence
ideology, social class, occupation, appearance (height, weight, shall be punishable with imprisonment of up to two years
skin colour, etc.), mental capacity, and any other distinction and/or a fine of up to Rs 5,000.”
that might be considered by some as a liability. The term • The second proposed amendment would curb speech that
covers written as well as oral communication and some causes fear, alarm or is a provocation to violence. It says:
forms of behaviour in a public setting. Hate speech is against “Whoever in public intentionally on grounds of religion,
the mandate of a fundamental right which is freedom of race, caste or community, sex, gender, sexual orientation,
expression. place of birth, residence, language, disability or tribe uses
Freedom of expression has five broad special purposes to words, or displays any writing, sign, or other visible
serve: representation which is gravely threatening, or derogatory:
(i) within the hearing or sight of a person, causing fear or
• It helps an individual to attain self-fulfillment.
alarm, or; (ii) with the intent to provoke the use of unlawful
• It assists in the discovery of truth. violence, will be punished with imprisonment of up to one
• It strengthens the capacity of an individual in participating year and/or a fine up to Rs 5,000.”
in decision making. • Overall, the report takes a broad view of what constitutes
• It provides a mechanism by which it would be possible to hate speech. It rebuts the limited view that only speech
establish a reasonable balance between stability and social that incites violence needs be restricted, arguing that “even
change. speech that does not incite violence has the potential of
marginalising a certain section of society or individual”.
• All members of the society would be able to form their
own beliefs and communicate them freely to others. • The document also takes into account the spread of
internet access in India, accusing it of promoting
Hate speech obstructs these purposes.
“incitement to discrimination”.
RECOMMENDATIONS OF THE LAW COMMISSION
• In the present age of faster mode of communications and
• The Law Commission of India released a report that social networking hate speech can now almost
proposed new laws in order to further curb hate speech. instantaneously spread throughout the world, and as
The report argues that Indian law defines as well as nations become increasingly socially, ethnically, religiously
penalizes hate speech haphazardly. For example, Section and culturally diverse, the need for regulation becomes
153A of the Indian Penal Code makes “promoting enmity ever more urgent.
between different groups” a crime, 153B penalizes
• In view of these important changes the State can no longer
expressions prejudicial to national integration, and 295A
justify commitment to neutrality, but must embrace
and 298 control speech that could wound religious
pluralism, guarantee autonomy and dignity, and strive for
feelings. Section 505, in turn, deals with public mischief
maintenance of a minimum of mutual respect.
and the spreading of rumours.
• Commitment to these values requires States to conduct an
• This means that there is no “water tight compartment to
active struggle against hate speech, while at the same time
deal with the various acts relating to hate speech which
paving the way to avoiding most of the pitfalls likely to be
generally overlap”.
encountered in the course of that struggle.
• As a solution, the report proposes two amendments to the
• In order to maintain the integrity of its constitutional
Indian Penal Code.
system along with harmony in society, the Government
• The first would deal with an incitement to hatred. It says: must protect both equality and free expression.
“Who ever, on grounds of religion, race, caste or
Freedom of speech and expression has been established as a
community, sex, gender identity, sexual orientation, place
key freedom required for sustaining democracy. However,
of birth, residence, language, disability or tribe – uses
with every right comes responsibility; and therein, is the need
24
for a limitation on the right to freedom of speech and governments to sensitize their police personnel about its
expression so as to prevent the destructive and regressive March 24, 2015 verdict in Shreya Singhal v Union of
effect it could have. Thus, there is a need to convince and Indiawhich had scrapped Section 66A of Information
educate the public on responsible exercise of freedom of Technology Act, so that people are not unnecessarily arrested
speech and expression. under the struck down provision. Further, the Court also
asked all the High Courts to send the copy of the verdict to all
FREEDOM OF SPEECH AND 66THIT ACT
the trial court to avoid people being prosecuted under the
• The Internet and Social Media has become a vital scrapped provision which provided for jail term to people
communications tool through which individuals can who posted offensive content online.
exercise their right of freedom of expression and exchange
SECTION 69 OF IT ACT, 2000
information and ideas.
• Recently Home Ministry has come up with new order by
• However, in the age of technology, the anonymity of
authorising 10 central agencies to monitor, intercept and
internet allows a miscreant to easily spread false and
decrypt information which is transmitted, generated,
offensive ideas. These ideas need not always incite
stored or received by any computer. Any person who fails
violence but they might perpetuate the discriminatory
to assist these government agencies can face upto 7 years
attitudes prevalent in the society. Incitement to
of imprisonment or be liable for a fine.
discrimination is also a significant factor that contributes
to the identification of hate speech. Hence its regulation • Government has authority to issue such order under
through Information Technology Act becomes equally Section 69 of IT Act, 2000.
important. Section 69 of the Act grants power to the Central or a State
• Recently in the case of Shreya Singhal v Union of India, Government to issue directions for interception or monitoring or
Supreme Court declared section 66A of Information decryption of any information through any computer resource in
Technology Act as unconstitutional as it was violative of the interest of the sovereignty or integrity of India, defence of
freedom of speech and expression under Article 19(1). India, security of the State, friendly relations with foreign States,
public order, for preventing incitement to commission of any
SECTION 66A OF IT ACT
cognizable offence, for investigation of any offence.
"Any person who sends, by means of a computer resource or
ISSUES
a communication device
• The order violates SC judgement of Right to Privacy in
(a) any information that is grossly offensive or has menacing
Puttaswamy case. Section 69 goes against the SC judgment
character; or
in Puttaswamy Case that says Right to Privacy is a
(b) any information which he knows to be false, but for the fundamental right under Part III of the constitution. This
purpose of causing annoyance, inconvenience, danger, right can be restricted on reasonable grounds.
obstruction, insult, injury, criminal intimidation, enmity, Reasonability of the restriction should be based on 3 tests:
hatred or ill will, persistently by making use of such
ο The restriction must be backed by law.
computer resource or a communication device,
ο There must be a legitimate state aim.
(c) any electronic mail or electronic mail message for the
purpose of causing annoyance or inconvenience or to ο Doctrine of Proportionality must be followed i.e a right
deceive or to mislead the addressee or recipient about the balance between state’s aim and means adopted must be
origin of such messages, shall be punishable with maintained so that the state can pursue its aims with
imprisonment for a term which may extend to three years minimal effects on Fundamental Rights of its people.
and with fine." • The order imposes restriction on Fundamental Rights
Section 66A provided punishment for sending offensive under unreasonable grounds.
messages through communication services. • Grounds for reasonable restriction under Article 19
Supreme Court of India in a petition filed by NGO PUCL includes: Sovereignty and Integrity of India; Security of the
alleged that people were still being prosecuted under the state; Friendly relation with the state; Contempt of Court;
scrapped provision of Section 66A of Information Technology Defamation; Incitement to offence and Public Order.
Act, 2000. On this, the Supreme Court has directed all state
25
• Such an order is against the principle of Natural Justice. It • Section 69 does not differentiate between public order and
compels people to give up their personal information law and order. It allows restriction to be imposed on the
without giving them an opportunity to be heard. basis of law and order even if public order is maintained.
SPICE APPROACH
Hate speech is an expression which is likely to cause distress or offend other individuals rights and
dignity. It would undermine the “implicit assurance” that citizens of a democracy, particularly
Social dimension minorities or vulnerable groups are placed on the same footing as the majority. While the right to
criticise any group should continue to exist, speech that negates the right of a vulnerable group
should be regulated.
The Constitution acknowledges that liberty cannot be absolute or uncontrolled and makes provisions
in clauses (2) to (6) of article 19 authorising the State to restrict the exercise of the freedom
guaranteed under that article within the limits specified in those clauses. Thus, clause (2) of article 19,
as subsequently amended by the Constitution (First Amendment) Act, 1951 and the Constitution
(Sixteenth Amendment) Act, 1963, enabled the legislature to impose reasonable restrictions on the
Political/Legal exercise of the right to freedom of speech and expression in the interests of (i) the security of the
State and sovereignty and integrity of India, (ii) friendly relations with foreign States, (iii)public order,
Dimension
(iv) decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
The Representation of The People Act, 1951 disqualifies a person from contesting election if he is
convicted for indulging in acts amounting to illegitimate use of freedom of speech and expression.
Section 123(3A) and section 125 prohibits promotion of enmity on grounds of religion, race, caste,
community or language in connection with election as a corrupt electoral practice and prohibits it.
India prohibits hate speech by several sections of the Indian Penal Code, the Code of Criminal
Institutional Procedure, and by other laws which put limitations on the freedom of expression.
dimension The Model Code of Conduct is given by the Election Commission of India for the guidance of political
parties.
Cultural dimension Hate speech is often used to incite communal tension in the nation.
Economic Hate speech incite hatred and crime in the region. This creates a non-progressive economic
dimension atmosphere.
►LAW COMMISSION REPORT ON Hereby, discussing the recommendations given by the Law
Commission.
SEDITION
WHAT IS FREE SPEECH & REASONABLE RESTRICTIONS?
The Law Commission of India was asked to consider section
Free speech is an important principle of democracy as it
124A of the Indian Penal Code, 1860 which deals with
allows an individual to attain self-fulfillment, assist in
sedition. Sedition attracts imprisonment from three years to
discovery of truth and strengthen the capacity of a person to
life. Accordingly, a study was undertaken to examine the
take informed decisions. However, such freedom of speech
various pros and cons of the provision on sedition. The
often poses difficult questions at times exceeding the limit of
Commission has invited public opinion on the prospect of
reasonable restrictions. Thus, it becomes important to
either redefining or doing away with Section 124A in the
differentiate between freedom of speech and expression
considering that right to free speech and expression is an
guaranteed by the Constitution, reasonable restrictions
essential ingredient of democracy.
26
imposed on such freedom and grounds on which sedition criticism, there lies little difference between the pre- and
can be imposed by State authorities. post-Independence eras.
Article 19(1) guarantees freedom of speech and expression • Right to criticise one’s own history and the right to
subject to reasonable limitations under Article 19(2) on offend are rights protected under free speech under
grounds of - Article 19 of the Constitution. While it is essential to
• interests of the sovereignty and integrity of India, protect national integrity, it should not be misused as a
tool to curb free speech.
• the security of the State,
• Every restriction on free speech and expression must
• friendly relations with foreign States,
be carefully scrutinised to avoid unwarranted
• public order, decency or morality, or restrictions.
• in relation to contempt of court, defamation or incitement • In a democracy, singing from the same songbook is not a
to an offence. benchmark of patriotism. People should be at liberty to
WHAT AMOUNTS TO SEDITION? show their affection towards their country in their own
way.
• Sedition as defined in Indian Penal Code under section
124A. • An expression of frustration over the state of affairs
cannot be treated as sedition. For merely expressing a
“ Whoever by words, either spoken or written, or by signs,
thought which is not in consonance with the policy of the
or by visible representation, or otherwise, brings or
government of the day, a person should not be charged
attempts to bring into hatred or contempt, or excites or
under the provision of sedition.
attempts to excite disaffection towards the Government
established by law in, shall be punished with • The Commission also asked whether it would be
imprisonment for life, to which fine may be added, or with worthwhile to rename Section 124A and find a suitable
imprisonment which may extend to three years, to which substitute for the term - sedition.
fine may be added, or with fine.” Thus, mere criticism of the government or its policies does
• The expression “disaffection” includes disloyalty and all not amount to sedition. Such a dissent or criticism must be
feelings of enmity. accompanied by incitement to violence or intention or
tendency to create public disorder or cause disturbance of
• Comments expressing disapprobation of the measures of
public peace which is against the interests of sovereignty and
the Government with a view to obtain their alteration by
integrity of India or security of the state - for invoking charges
lawful means, without exciting or attempting to excite
under sedition.
hatred, contempt or disaffection, do not constitute an
offence under sedition. SC ON USE OF SEDITION BY THE STATE V CITIZEN’S
FREEDOM OF SPEECH
• Comments expressing disapprobation of the
administrative or other action of the Government without • The Supreme Court in Romesh Thapar vs State of
exciting or attempting to excite hatred, contempt or Madras declared that unless the freedom of speech and
disaffection, do not constitute an offence under this expression threaten the security of or tend to overthrow
section. the State, any law imposing restriction upon the same
would not fall within the purview of Article 19(2) of the
LAW COMMISSION VIEWS ON SEDITION
Constitution.
The Law Commission of India was asked to consider section
• In Kedar Nath Singh vs State of Bihar,1962, a
124A of the Indian Penal Code, 1860 which deals with
Constitution Bench had ruled in favour of the
sedition. Some of the important observations of Law
constitutional validity of Section 124A (sedition) in the IPC.
Commission in its consultation paper (released in August,
The Court in this case:
2018) are:
ο Considered the importance of government established
• Dissent and criticism of the government are essential
by law; and
ingredients of a robust public debate in a vibrant
democracy. Thus, if the country is not open to positive
27
ο Struck a balance between the right to free speech and ο Creating public disorder by the use of actual violence or
expression and the power of the legislature to restrict incitement to violence thereby disturbing public peace.
such right ο On striking a balance – The Court held that a citizen has
• On Sedition - The Court in Kedar Nath stated that: a right to say or write whatever he likes about the
ο Sedition is an offence against the state and any act
Government, or its measures, by way of criticism or
which have the effect of subverting the Government by comment, so long as he does not incite people to
bringing that Government into contempt or hatred, or violence against the Government established by law or
creating disaffection against it will be considered as with the intention of creating public disorder.
sedition, including feeling of disloyalty to the
Government established by law or enmity to it.
SPICE APPROACH
Free speech is the foundation of a democratic society. A free exchange of ideas, dissemination of
information without restraints, dissemination of knowledge, airing of differing view points, debating
Social dimension and forming one shown views and expressing them, are the basic indicia of a free society. But the
freedom of speech should be restricted. It is essential to protect national integrity, it should not be
misused as a tool to curb free speech.
Maneka Gandhi case, 1978

• The SC stated that Criticizing and drawing general opinion against the Govt. policies and
decisions within a reasonable limit that does not incite people to rebel is consistent with the
freedom of speech.
Political/Legal Balwant Singh v. State of Punjab

• In this Supreme Court has overturned the convictions for sedition(124A IPC) and Promoting
Dimension
enmity between different groups on grounds of religion, race, place of birth, residence, language,
etc (153 A IPC).
• More importantly, in the Balwant Singh vs State of Punjab, where the sedition charges were
removed even when there were allegation of yelling ‘Khalistan Zindabad’ is a testimony to the
fact that ‘incitement’ rather than ‘advocacy’ is the important element of section 124A.
Institutional Supreme Court and Law Commission have asked reconsider section 124A of the Indian Penal Code,
dimension 1860 which deals with sedition.
Holding an opinion against the Prime Minister or his actions or criticism of the actions of government
or drawing inference from the speeches and actions of the leader of the government that the leader
Cultural dimension was against a particular community and was in league with certain other political leaders, cannot be
considered as sedition under Section 124A of the IPC. The criticism of the government is the hallmark
of democracy.
Economic
dimension
28
►RESERVATION OF ECONOMICALLY the weaker sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes. But,
WEAKER SECTION economically weaker sections of citizens were not eligible for
Government has recently passed the Constitution (One the benefit of reservation.
Hundred and Third Amendment) which aims to provide Thus, the proposed amendment aims to ensure that
reservation in public employment and higher education for economically weaker sections of citizens get a fair chance of
economically weaker sections. receiving higher education and participation in employment
Hereby discussing the salient provisions of the Act and in the services of the State. This will also fulfill the mandate of
challenges associated with it. Article 46.
SALIENT FEATURES OF THE ACT CRITERIA FOR IDENTIFICATION OF EWS

• Economic reservation in jobs and education is proposed to Persons who are not covered under the scheme of
be provided by inserting clause (6) in Articles 15 and 16 of reservation for SCs, STs and OBCs and whose family has a
the Constitution. gross annual income below Rs 8 lakh (Rupees eight lakh only)
• The proposed Article 15(6) enables State to make special are to be identified as EWSs for benefit of reservation.
provisions for advancement of any economically weaker Income shall also include income from all sources i.e. salary,
section of citizens, including reservations in educational agriculture, business, profession, etc. for the financial year
institutions. It states that such reservation can be made in prior to the year of application.
any educational institution, including private institutions, Also, persons whose family owns or possesses any of the
whether aided or unaided, except minority educational following assets shall be excluded from being identified as
institutions covered under Article 30(1). It further states EWS, irrespective of the family income:-
that the upper limit of reservation will be ten percent,
1. 5 acres of agricultural land and above;
which will be in addition to the existing reservations.
2. Residential at of 1000 sq ft. and above;
• As regards job reservations, the proposed Article 16(6)
3. Residential plot of 100 sq. yards and above in notified
enables State to make provision for reservation in
municipalities;
appointments, in addition to the existing reservations,
subject to a maximum of ten percent. 4. Residential, plot of 200 sq. yards and above in areas other
than the notified municipalities.
• At present, reservations account for a total of 49.5%, with
15%, 7.5% and 27% quotas for Scheduled Castes, CHALLENGES AHEAD
Scheduled Tribes and Other Backward Classes • It breaches the 50% reservation cap as set by nine Judge
respectively. "Economically weaker sections" for the Constitution Bench in the case of Indra Sawhney.
purposes of Articles 15 and 16 mean such sections as
• Nine Judge Constitution Bench in Indira Sawhney had put a
notified by the State from time to time on the basis of
50% cap on reservation and had struck down reservations
family income and other indicators of economic
for economically backward categories.
disadvantage. This will be a class distinct from the already
specified classes of SCs, STs and socially and educationally • Violation of doctrine of basic structure on grounds of
backward classes. equality.
DPSP ON WELFARE • Further the Constitution Bench clearly mentioned that

backward class cannot be determined solely on the basis
The directive principles of State policy contained in Article 46
of economic criteria. Economic criteria may be a
of the Constitution mentions that the State shall promote
consideration or basis along with and in addition to social
with special care the educational and economic interests of
backwardness, but cannot be the sole criteria.
SPICE APPROACH
Social dimension • Reservation is one of the tools against social oppression and injustice against certain classes.
29
Otherwise known as affirmative action, reservation helps in uplifting backward classes.

• The present Act facilitates reservation for EWS in direct recruitments in jobs and admission in
higher educational institutions.
• The reservation of EWS of general category will be given without tampering the existing quotas for
SC, ST and OBCs people.
• It will lead to inclusive growth.
• Economic reservation in jobs and education is proposed to be provided by inserting clause (6) in
Articles 15 and 16 of the Constitution.
• The proposed Article 15(6) enables State to make special provisions for advancement of any
economically weaker section of citizens, including reservations in educational institutions. It states
Political/Legal that such reservation can be made in any educational institution, including private institutions,
whether aided or unaided, except minority educational institutions covered under Article 30(1). It
Dimension further states that the upper limit of reservation will be ten percent, which will be in addition to the
existing reservations.
• As regards job reservations, the proposed Article 16(6) enables State to make provision for
reservation in appointments, in addition to the existing reservations, subject to a maximum of ten
percent.
Institutional Institutions should be set up to verify the fulfillment of criteria, otherwise the provision of reservation
dimension may be misused and actual beneficiaries may get excluded.
Cultural dimension Merit has become secondary in selection.
Reservation and similar measures are the remedy for 'social inequality' created over centuries against
Economic certain classes. But for the poor individuals of forward castes it is not prevention from access to
dimension education institutions and opportunities, but only financial incapacity. The remedy for that is to create
financial capacity and provide mitigation.
►RIGHT TO PROTEST: A and the aforesaid right is subject to reasonable restrictions in

the interest of the sovereignty and integrity of India, as well
FUNDAMENTAL RIGHT as public order.
Protests at Jantar Mantar in New Delhi were earlier banned It stated that:
by National Green Tribunal in October 2017 as protest at the
• A distinguishing feature of any democracy is the space
place was causing harassment for the local residents due to
offered for legitimate dissent which cannot be trampled by
excessive noise pollution. However, Supreme Court while
any executive action. Thus, the Court recognised that
hearing a petition has lifted the ban on organising protests at
legitimate dissent is a distinguishable feature of any
the iconic Jantar Mantar Road and the Boat Club at India Gate
democracy.
in the national capital by stating that right to protest is a
fundamental right. • Every individual or group, whether they are a minority or
poor or marginalised, have the right to express their
Hereby, understanding the essence of the judgment including
dissent to government policies and fight their social
the concept of freedom of speech and expression and
circumstances.
grounds of reasonable restriction.
• It is their right to fight at a location within hearing distance
SUPREME COURT ON RIGHT TO PROTEST
of the power centres. All that is required of them is to
Supreme Court of India has held that the right to peaceful protest in an orderly and peaceful manner.
protest is a fundamental right guaranteed in the Constitution
30
• Protests strengthen representative democracy by enabling RESTRICTIONS ON FREEDOM OF PROTEST

direct participation in public affairs where individuals and Freedom of speech and expression including protest is not
groups are able to: absolute and is subject to certain restrictions
ο express dissent and grievances; Characteristics of reasonable restrictions imposed are:
ο expose the flaws in governance; and
• The restrictions can be imposed only by or under the
ο demand accountability from state authorities as well a authority of law. No restriction can be imposed by
powerful entity. executive action alone without a corresponding law.
Such a right can be traced to the fundamental freedom that is • Each restriction must be reasonable.
guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the • There must be a purpose for which such restrictions are
Constitution. Article 19(1)(a) confers freedom of speech to the imposed.
citizens of this country and, thus, this provision ensures that
Whether a restriction is reasonable or purposeful is to be
the petitioners could raise slogan, albeit in a peaceful and
determined finally by Courts when a law is challenged as
orderly manner, without using offensive language. Article
unconstitutional. Hence, restrictions imposed by the
19(1)(b) confers the right to assemble and, thus, guarantees
legislature on freedom are not final or conclusive and is also
that all citizens have the right to assemble peacefully and
open to Judicial Review.
without arms.
The Supreme Court observed that in a democracy, balance of
The right to peacefully protest subject to just restrictions is
the fundamental rights of the residents and the
now an essential part of free speech and the right to
demonstrators is necessary.
assemble. Additionally, it is an affirmative obligation of the
State to make that exercise of this right effective.
SPICE APPROACH
The people of a democratic country should have the right to raise their voice against the decisions and
actions of the Government or even to express their resentment over the actions of the government on
Social dimension
any subject of social or national importance. The Government has to respect, and in fact, encourage
exercise of such rights for the inclusive growth of the society. But the protest should be peaceful.
Political/Legal Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are
Dimension the basic features of a democratic system.
Institutional
dimension
• The term ‘Satyagriha’ originated in a news-sheet Indian Opinion in South Africa in 1906. The essence
of Satyagraha was not aggression, but non-violence. Its force lay in truth and the ability to struggle
for it. The satyagrahi invited to himself the adverse consequences of his action. He was willing to
Cultural dimension suffer the punishment as consequence of his struggle.
• Hence the Supreme Court in its judgement has upheld the right to peaceful protest as a
Constitutional right.
Economic
dimension
31
►PASSIVE EUTHANASIA • The word liberty is the sense and realization of choice of
the attributes associated with the said choice and the term
ABOUT EUTHANASIA life is the aspiration to possess the same in a dignified
• Euthanasia is basically an intentional premature manner.
termination of another person‘s life either by direct • The two are intrinsically interlinked. Liberty allows an
intervention (active euthanasia) or by withholding life- individual the space to think and act without restriction
prolonging measures and resources (passive euthanasia). and life without liberty would be a meaningless survival.
• This can be done by express or implied request of the • Thus, Article 21 in its own unique way has combined the
person concerned (voluntary euthanasia) or in the absence concept of life and liberty and has also linked it through a
of such approval or consent of the person concerned (non- legal procedure for its deprivation. It was because of this
voluntary euthanasia). interpretation, right to die was never interpreted in
• Active euthanasia also referred as positive or aggressive successive judgments to be an integral part of right to life
euthanasia, occurs when death is brought about through a and personal liberty under Article 21.
positive act or affirmative action or an act of commission P. RATHINAM V UNION OF INDIA
entailing the use of lethal substances or forces to cause
• In P. Rathinam v. Union of India & Another, many
the intentional death of a person by direct intervention
constitutional issues were raised including questions
(lethal injection given to a person with terminal cancer who
pertaining to constitutional validity of attempt to suicide
is in terrible agony).
(section 309 of Indian Penal Code) and right to die.
• Passive euthanasia, on the other hand, also called
• While referring the question whether right to die can be
negative or non-aggressive euthanasia, entails
included as an integral part of Article 21, the Court relied
withdrawing of life support measures or withholding of
on the case of Maruti Shripati Dubal v. State of
medical treatment for continuance of life. Eg. Withholding
Maharashtra, where Bombay High Court held that
of antibiotics in case of a patient where death is likely to
fundamental rights have their positive as well as negative
occur as a result of not giving the said antibiotics or
aspects.
removal of the heart lung machine from a patient in coma.
• Citing an example, it had stated, “freedom of speech and
• Passive Euthanasia is further categorized into voluntary
expression includes freedom not to speak and similarly,
passive euthanasia and non-voluntary passive euthanasia.
the freedom of association and movement includes
Voluntary passive euthanasia is a situation where a
freedom not to join any association or move anywhere and
person who is capable of deciding for himself decides that
accordingly, it stated that logically it must follow that the
he would prefer to die because of various reasons
right to live would include the right not to live, i.e., right to
whereas non voluntary passive euthanasia has been
die or to terminate one‘s life.”
described to mean where a person is not in a position to
decide for himself (when they are in coma or in Persistent GIAN KAUR V UNION OF INDIA
Vegetative State). • The ruling of P. Rathinam v. Union of India & Another was
ARTICLE 21 & LIBERTY challenged in the case of Gian Kaur vs. State of Punjab.
• Article 21 of the Indian Constitution which deals with • A five Judge Constitutional Bench held that the "right to
protection of life and personal liberty has gone through life"is inherently inconsistentwith the "right to die" as
successive interpretations by the Courts of law in is "death" with "life". In furtherance, the right to life,
important landmark judgments. which includes right to live with human dignity, would
mean the existence of such a right up to the natural end of
• Each of these interpretations has widened the ambit of
life.
Article 21 to include such facets of life which provides
meaning, purpose and dignity to existence. • The Court further said that right to life is a natural right
embodied under Article 21 but suicide is an unnatural
• Article 21 specifically says that no person shall be deprived
termination or extinguishing of life and is therefore
of their life or personal liberty except according to
incompatible and inconsistent with the concept of right to
procedure established by law.
life.
32
• The Court therefore held Section 306 (abetment of • Dignity is lost if a person is allowed or forced to undergo
suicide) and 309 (attempt to suicide) of IPC to be valid pain and suffering because of unwarranted medical
and constitutional. support.
• Thus, Gian Kaur vs. State of Punjab effectively overruled • To deprive a person of dignity at the end of life is to
the previous judgment of P. Ratinam v. Union of India and deprive him of a meaningful existence. Meaningful
declared that right to die does not form part of Article 21. existence includes a person’s right to self-determination
• Supreme Court further distinguished between euthanasia and autonomy to decide their medical treatment.
and attempt to suicide - right to life including the right to • The respect for an individual human being and in
live with human dignity would mean the existence of such particular for his right to choose how he should live his
a right up to the end of natural life. Whereas euthanasia is own life is individual autonomy or the right of self-
termination of life of a person who is terminally ill or in determination.
PVS. Thus, euthanasia is not a case of “extinguishing • It is the right against non-interference by others, which
life”but only of accelerating the process of natural death gives a competent person who has come of age the right
which has already commenced. to make decisions concerning his or her own life and body
ARUNA SHANBAUG – KEM HOSPITAL, MUMBAI without any control or interference of others.
• Aruna Shanbaug suffered brain stem and cervical cord • The Court also agreed that right to a dignified life includes
injury and remained in Persistent Vegetative State for the a “dignified procedure of death.” SC distinguished passive
rest of her life since 1973 till her death in 2015. In 2009, a euthanasia from suicide and active euthanasia and drew a
writ petition was filed under Article 32 before the Supreme judicial line between the two as it called passive
Court of India, seeking passive euthanasia for Shanbaug. euthanasia as a “mere acceleration of the inevitable
• The Court appointed a team of three very distinguished conclusion” whereas it declared active euthanasia as
doctors to examine the petitioner thoroughly and to unlawful and illegal.
submit a report about her physical and mental condition. • Supreme Court has invoked its inherent power under
The team submitted a joint report. Article 142 to grant legal status to its advance directives
• In a landmark judgment in 2011, the Court held, “there is until Parliament enacts legislation on the matter. This is a
no right to die under Article 21 of the Constitution and the landmark judgment as it departs from previous judgments
right to life includes the right to live with human dignity but in on the concept of including right to die with dignity within
the case of a dying person who is terminally ill or in the larger ambit of Right to live under Article 21.
permanent vegetative state, he may be allowed a premature
extinction of his life and it would not amount to a crime.”
►RIGHT TO PRIVACY & AADHAAR
• Supreme Court allowed doctors at the KEM Hospital in
Mumbai to stop force-feeding Shanbaug and withdraw life Right to Privacy is not an absolute right like other rights
support to deliberately end her life, on the discretion of which form part of the fundamental freedoms protected by
the doctors. Part III, including the right to life and personal liberty under
Article 21. The Supreme Court held that the right to privacy
• This was the first time after Gian Kaur case, when
is a fundamental right flowing from the right to life and
Supreme Court had allowed passive euthanasia under
personal liberty as well as other fundamental rights
strict guidelines and conditions.However, Supreme
securing individual liberty in the Constitution. In addition,
Court did not allow active euthanasia and held that ending
individual dignity was also cited as a basis for the right.
life through use of lethal substance' is not permitted in any
Privacy itself was held to have a negative aspect i.e. the right
circumstance.
to be let alone and a positive aspect which is the right to self
COMMON CAUSE V UNION OF INDIA & OTHERS development. Thus, a law which encroaches upon privacy
• Supreme Court in common cause case has held that will have to withstand the touchstone of permissible
fundamental right to life and dignity under Article 21 restrictions on fundamental rights. In the context of Article 21
includes right to die with dignity. an invasion of privacy must be justified on the basis of a law
which stipulates a procedure which is fair, just and
33
reasonable. The law must also be valid with reference to the • While the legitimate expectation of privacy may vary from
encroachment on life and personal liberty under Article 21. the intimate zone to the private zone and from the private
An invasion of life or personal liberty must meet the three- to the public arenas, it is important to underscore that
fold requirement of - privacy is not lost or surrendered merely because the
i. Legality, which postulates the existence of law; individual is in a public place. Privacy attaches to the
person since it is an essential facet of the dignity of the
ii. Need, defined in terms of a legitimate state aim; and
human being.
iii. Proportionality which ensures a rational nexus
COMMITTEE OF EXPERTS UNDER THE CHAIRMANSHIP OF
between the objects and the means adopted to
JUSTICE B.N. SRIKRISHNA
achieve them.
• It submitted a report titled A Free and Fair Digital
SUPREME COURT ON PRIVACY
Economy Protecting Privacy, Empowering Indians. The
• Life and personal liberty are inalienable rights. These are report has cited Puttaswamy Judgment and highlights that
rights which are inseparable from a dignified human sphere of privacy includes a right to protect one‘s identity.
existence.
• This right recognises the fact that that all information
• The dignity of the individual, equality between human about a person is fundamentally their own, and she is free
beings and the quest for liberty are the foundational pillars to communicate or retain it for herself. This core of
of the Indian Constitution. informational privacy, thus, is a right to autonomy and self-
• Life and personal liberty are not creations of the determination in respect of one‘s personal data.
Constitution. These rights are recognised by the Undoubtedly, this must be the primary value that any data
Constitution as inhering in each individual as an intrinsic protection framework serves.
and inseparable part of the human element which dwells AADHAAR JUDGMENT
within.
• Aadhaar was primarily challenged on grounds that it
• Privacy is a constitutionally protected right which emerges validated right to privacy which has been unanimously
primarily from the guarantee of life and personal liberty in recognised to be a part of right to life and personal liberty
Article 21 of the Constitution. Elements of privacy also by Nine Judge Constitution Bench in Puttaswamy v Union
arise in varying contexts from the other facets of freedom of India. In the backdrop of the decision of privacy case,
and dignity recognised and guaranteed by the the judgment on constitutional validity of Aadhaar was
fundamental rights contained in Part III eagerly awaited.
• Privacy is the constitutional core of human dignity. Privacy • The case on Aadhaar had clubbed different associated
has both a normative and descriptive function. issues on which the Supreme Court had to pronounce its
• At a normative level privacy sub-serves those eternal verdict. Five Judge Constitution Bench of Supreme Court in
values upon which the guarantees of life, liberty and a majority of 4:1 has delivered a landmark verdict where it
freedom are founded. At a descriptive level, privacy has upheld the constitutional validity of The Aadhaar
postulates a bundle of entitlements and interests which lie (Targeted Delivery of Financial and Other Subsidies,
at the foundation of ordered liberty. Benefits and Services) Act 2016.
• Privacy includes at its core the preservation of personal • However, the Court struck down several provisions
intimacies, the sanctity of family life, marriage, procreation, (section 33(2), 47 and 57 of the Aadhaar Act) related to
the home and sexual orientation. Aadhaar card linkage where no benefits, subsidies or
services were transferred. Let us go through different
Privacy also connotes a right to be left alone
aspects of the judgment.
• Privacy safeguards individual autonomy and recognises
WHETHER AADHAAR CREATES SURVEILLANCE STATE?
the ability of the individual to control vital aspects of his or
her life. Personal choices governing a way of life are • The architecture of Aadhaar as well as the provisions of
intrinsic to privacy. Privacy protects heterogeneity and the Aadhaar Act does not tend to create a surveillance
recognises the plurality and diversity of our culture. state. This is ensured by the manner in which the Aadhaar
project operates.
34
• During enrollment process, Unique Identification Authority such a complaint by an individual/victim as well whose
of India (UIDAI) collects minimal biometric data in the form right is violated.
of iris and fingerprints but does not collect purpose, • The Court held section 57 of the Aadhaar Act
location or details of transaction. Thus, the entire asunconstitutional as it enabled body corporate and
enrollment process is purpose blind and is not exposed to individual to seek authentication.
the Internet world.
• The Court held other provisions of the Act as valid
• The Court also highlighted that there is an oversight by including section 59 as it saves the pre-enactment period
Technology and Architecture Review Board (TARB) and of Aadhaar project i.e. from 2009-2016.
Security Review Committee in case of data breach.
WHETHER AADHAAR ACT VIOLATES RIGHT TO PRIVACY?
• UIDAI does not get any information related to the IP
• The Court held that collection of data, its storage and
address or the GPS location from where authentication is
use under Aadhaar Act does not violate right to
performed as these parameters are not part of
privacy as it passes the three test laid down in Nine Judge
authentication.
Bench judgment in Puttaswamy v Union of India.
• Further, the authority or any entity under its control is not
• Thus, the Aadhaar Act passed the triple test on legality of
authorised under law to collect, keep or maintain any
the law, need for such a law and proportionality test
information about the purpose of authentication under
which ensures the nexus between objects of the act and
Section 32(3) of the Aadhaar Act.
means adopted to achieve such objects.
• Supreme Court after going through the Aadhaar structure
• The Court said that section 7 of the Aadhaar Act
held that it is very difficult to create profile of a person
becomes an aspect of social justice, which is the
simply on the basis of biometric and demographic
obligation of the State stipulated in Part IV of the
information stored in Central Identities Data Repository
Constitution.
(CIDR).
• As per the Court, Aadhaar Act ensures good governance
• However, Supreme Court held that authentication
by bringing accountability and transparency in the
records are not to be kept beyond a period of six
distribution system with the pious aim to ensure that
months which was earlier stipulated at 5 years.
benefits reach the needy specially those who are rural,
• Section 33(1) of the Aadhaar Act prohibits disclosure of poor and starving.
information, including identity information or
• Court held that Aadhaar Act meets the concept of Limited
authentication records, except when it is by an order of a
Government, Good Governance and Constitutional
court not inferior to that of a District Judge. The Court held
Trust.
that this provision is to be read down with the clarification
that an individual, whose information is sought to be • The rationale behind Section 7 lies in ensuring targeted
released, shall be afforded an opportunity of hearing. delivery of services, benefits and subsidies which are
funded from the Consolidated Fund of India.
• The Court also struck down section 33 (2) of the Act in
the present form and has directed to enact a new • The Court held that Aadhaar Act meets the test of
provision where information can be disclosed on grounds proportionality as the Act has a legitimate goal, there is a
of national security in case of an eventuality to be decided suitable means to achieve the goal and the measure to
by an officer higher than the rank of a Joint Secretary adopt Aadhaar does not have a disproportionate impact
along with a Judicial Officer preferably a sitting High on the right holder.
Court Judge. SC ON SUBSIDIES, BENEFITS AND SERVICES
• The Court has suggested suitable amendment to section • Supreme Court held that scope of subsidies, services and
47 of the Aadhaar Act which as of now provides for the benefits must not be expanded unduly as it will result in
cognizance of offence only on a complaint made by the widening the net of Aadhaar which is not permitted.
Authority or any officer or person authorised by it is
• Thus benefits and services as mentioned in section 7 of
concerned. As per the judgment, this provision needs
Aadhaar Act should cover only those benefits (mainly
suitable amendment to include the provision for filing of
35
welfare schemes) whose expenditure has been incurred process to achieve the abovementioned causes of social
from the Consolidated Fund of India. justice.
• Thus, on this basis, CBSE, NEET, JEE, UGC etc. cannot • The Court said that enrollment for Aadhaar is of voluntary
make the requirement of Aadhaar mandatory as they nature. However, it becomes compulsory for those who
are outside the purview of Section 7 and are not backed by seeks to receive any subsidy, benefit or service under
any law. the welfare scheme of the Government expenditure
WHETHER CHILDREN CAN BE BROUGHT WITHIN SECTION 7 whereof is to be met from the Consolidated Fund of India.
AND 8 OF AADHAAR ACT? • It follows that authentication under Section 7 would be
• For the enrolment of children under the Aadhaar Act, it required as a condition for receipt of a subsidy, benefit or
would be essential to have the consent of their service only when such a subsidy, benefit or service is
parents/guardian. incurred from Consolidated Fund of India.
• On attaining the age of majority, such children who are • Therefore, Section 7 is the core provision of the
enrolled under Aadhaar with the consent of their parents, Aadhaar Act and this provision satisfies the conditions of
shall be given the option to exit from the Aadhaar Article 110 of the Constitution.
project if they so choose in case they do not intend to • With regards to other provision which were not part of
avail the benefits of the scheme. Article 110, the Court held that those provisions are
• The Court said that requirement of Aadhaar will not be incidental in nature which have been made in the proper
compulsory for admission to schools as it is neither working of the Act. Thus, the Court effectively held that
service nor subsidy. Aadhaar Act is validly passed as Money Bill under Article
110 of the Indian Constitution.
• The Court further elaborated that a child between the age
group of 6 to 14 years has the fundamental right to • However, the decision of Speaker certifying the Aadhaar
education under Article 21A of the Constitution. Thus, Bill, 2016 as Money Bill is not immune from Judicial
school admission cannot be treated as ‘benefit’ as per Review.
section 7 of the Aadhaar Act. CAN AADHAAR BE LINKED TO MOBILE PHONES?
• Benefits to children between 6 to 14 years under Sarv • Department of Telecommunication issued a circular dated
Shiksha Abhiyan, likewise, shall not require mandatory March 23, 2017 mandated linking of mobile number with
Aadhaar enrolment. Aadhaar.
• The Court also clarified that no child shall be denied • Supreme Court declared the circular of Department of
benefit of any of these schemes if, for some reasons, she Telecommunication as illegal and unconstitutional as it
is not able to produce the Aadhaar number and the was not backed by any law.
benefit shall be given by verifying the identity on the basis • Thus Aadhaar is no longer mandatory for buying a new
of any other documents. sim card or linking existing sim card with Aadhaar.
Whether Aadhaar could have been passed as Money Bill? SECTION 139AA OF INCOME TAX ACT
• The Court recognised the importance of Rajya Sabha in a • Section 139AA of the Income-tax Act, 1961 as
bicameral system of Parliament which makes it an introduced by the Finance Act, 2017 provides for
important institution signifying constitutional federalism. mandatory quoting of Aadhaar / Enrolment ID of Aadhaar
The only exception to this parliamentary norm is Article application form, for filing of return of income and for
110 of the Constitution of India which defines Money Bill. making an application for allotment of Permanent Account
• The Court held that social justice was the main goal of Number (PAN) with effect from 1st July, 2017.
Aadhaar Act and it could be achieved only through • The Court held that Section 139AA does not breach
targeted delivery of subsidy, benefits or services. Such fundamental Right of Privacy as per Privacy Judgment in
benefits or services or subsidies helped the poor and Puttaswamy case.
marginalised section of society without which they cannot
• Thus Aadhaar must be linked with PAN for filing
live with dignity. Thus, enrollment for Aadhaar is the
income tax returns.
36
BASIC FEA
ATURES OF T
THE CONSTIITUTION
• The
T Court also held thatt this section n pass the ttest of district alon
ng with all Sta
ation House O Officers of th
he district
permissible limits for inva asion of privaacy, namely: (i) the so as to identify the existence o of the tende encies of
existence
e of a law; (ii) a ‘legitimate Sta
ate interest’ a
and (iii) vigilantism,, mob violence or lynchin ng in the disstrict and
passing the ‘test of proportionality’ take stepss to prohibitt instances of dissemin nation of
LIN
NKING OF BA
ANK ACCOUNT WITH AADH
HAAR offensive material th hrough diffeerent social media
platforms oro any other means
m for inciiting such ten
ndencies.
• The
T Court held
h that lin
nking of ba ank accountt with
Aadhaar
A doe
es not pass the proporttionality tesst and, • The Nodal Officer shalll also makee efforts to e eradicate
therefore,
t vio
olates the rig
ght to privacy
y of a person
n which hostile enviironment aga ainst any com munity or casste which
extends
e to baanking details. is targeted in such incide
ents.
• This
T linking was
w made com mpulsory nott only for ope ening a • The Directtor General of Police/th he Secretaryy, Home
new bank acccount but even for existting bank accounts Departmen nt of the con ncerned Statees shall take e regular
with
w a stipulaation that if the same is not done then the review mee etings (at least once a quarrter) with all the Nodal
account
a wou uld be deactivated, with tthe result th hat the Officers and
d State Policee Intelligence h
heads.
holder of the account wou uld not be enttitled to opera
ate the • The Home Department of the Goverrnment of India must
bank accountt till the time seeding
s of the
e bank account with take initiative and work in co-ordin nation with tthe State
Aadhaar
A is do
one. This amounts to dep priving a perrson of Governmen nts for sensitising the law eenforcement agencies
his property. and by inv he stake ho lders to identify the
volving all th
measures for preventio on of mob vviolence and lynching
against anyy caste or co ommunity an nd to implem ment the
►MOB LYN
NCHING constitution
nal goal of soccial justice an
nd the Rule off Law.
Increasing cases of mob vio olence in thee society bassed on • The Directoor General off Police shall iissue a circular to the
discrimination on
o different fronts
f have rraised concerns on Superintendents of Police with regarrd to police p patrolling
law
w and order situation in the country inccluding safetyy of the in the sensiitive areas.
vulnerable sectio
ons of the socciety. • The Central and the State Governmeents should b broadcast
Suppreme Court in the case ofo Tehseen P Poonawala v Union on radio and televisio on and oth her media p platforms
of India, has provided a 11-point prescriptio on for including the official we ebsites of th
he Home Dep partment
pre
eventive, rem
medial and pu unitive measu ures and has asked and Police of the States that lynchingg and mob vioolence of
Parrliament to le
egislate a sep
parate offencce for lynchin
ng and any kind sh
hall invite serio
ous consequeence under th
he law.
pro
ovide adequatte punishmen nt for the sam
me.
PREVENTIVE ME
EASURES
• The
T State Go overnments shall
s designa
ate, a senior police REMEDIAL
R ME
EASURES
officer,
o not be
elow the rank k of Superinte
endent of Police, as
Nodal Officerr in each distriict.
• Such
S Nodal Officer
O shall be one of the DS
e assisted by o SP rank
officers
o in th
he district foor taking me easures to p prevent
incidents of mob
m violence anda lynching..
• They
T shall connstitute a spe
ecial task forrce so as to p
procure
intelligence reports
r about the people e who are lik kely to
commit
c such crimes or wh ho are involve
ed in spreadinng hate
speeches,
s pro
ovocative stattements and ffake news.
• The
T State Goovernments shall
s forthwitth identify Diistricts,
Sub-Divisions
S s and/or Villag
ges where in
nstances of lyynching
and
a mob viole ence have been reported i n the recent p
past.
• The
T Nodal Officer
O shall hold
h regular meetings (at least • In incidentss of lynching or mob violeence, the jurissdictional
once
o a month) with the local intellig
gence units in the police station shall imm
mediately cau
use to lodge
e an FIR,
37
RAU’S IA
ASFOCUS SPEECIAL EDITIO
ONS | MAINS COMPASS(C
C3CURATION)for CSE 20199
without any undue delay, under the relevant provisions of violence and lynching, the same shall be considered as an
IPC and/or other provisions of law. act of deliberate negligence or misconduct for which
• The Station House Officer shall intimate the Nodal Officer appropriate action must be taken against such officer.
who shall be duty bound to ensure that the investigation is • As per Supreme Court judgment in Arumugam Servai v.
carried out effectively and the Report of police officer on
State of Tamil Nadu, the States are directed to take
completion of investigation (charge sheet) in such cases is
disciplinary action against the concerned officials if it is
filed without undue delay from the date of registration of
found that (i) such official(s) did not prevent the incident,
the FIR or arrest of the accused.
despite having prior knowledge of it, or (ii) where the
• The state shall provide compensation to the victims of
incident has already occurred, such official(s) did not
mob violence within 1 month from the date of judgment.
promptly apprehend and institute criminal proceedings
To compute compensation, the State Governments shall
against the culprits.
give due regard to the nature of bodily injury,
SEPARATE LAW ON MOB LYNCHING BY MANIPUR
psychological injury and loss of earnings including loss of
opportunities of employment and education and expenses On the lines of Supreme Court judgment, State Government
incurred on account of legal and medical expenses. of Manipur has legislated a separate law to make lynching a
criminal offence.
• The cases of lynching and mob violence shall be
specifically tried by designated court/Fast Track Courts • Definition of Mob as per Manipur law - The Act has defined
earmarked for that purpose in each district. Such lynching in a comprehensive way and covers many forms
courts shall hold trial of the case on a day to day basis. The of hate crimes. It covers any act or series of acts of
trial shall preferably be concluded within six months from violence or aiding, abetting such act/acts whether
the date of taking cognizance. spontaneous or planned, by a mob on the grounds of
religion, race, caste, sex, place of birth, language, dietary
• To ensure deterrence and to set an example, the trial court
practices, sexual orientation, political affiliation, ethnicity
must ordinarily award maximum sentence as provided for
or any other related grounds.
various offences under the provisions of the IPC.
• As per the law, mob means a group of two or more
• The Court must take appropriate measures for the safety
individuals, assembled with a common intention of
of such victims for protection and for concealing the
lynching. However, the law does not cover solitary hate
identity and address of the witness.
crimes carried out by one individual.
• The victim or the next of kin of the deceased in cases of
PUNISHMENTS PROVIDED UNDER THE MANIPUR LAW
mob violence and lynching shall be given timely notice of
any court proceedings and he/she shall be entitled to be NATURE PUNISHMENT
heard at the trial in respect of applications such as bail,
discharge, release and parole filed by the accused persons. Victim suffering For a term which may extend to 7
from hurt years + fine, which may extend upto
• The victims or the next of kin of the deceased in cases of
Rs. 1 lakh
mob violence and lynching shall receive free legal aid if he
or she so chooses and engage any advocate of his/her Victim suffering For a term which may extend to 10
choice from amongst those enrolled in the legal aid panel from grievous hurt years + fine, which may extend upto
Rs. 3 lakhs
under the Legal Services Authorities Act, 1987.
PUNITIVE MEASURES Death of the victim Rigorous imprisonment for life + fine
upto Rs. 10 lakhs
• Wherever it is found that a police officer or an officer of
the district administration has failed to comply with the
aforesaid directions in order to prevent and/or investigate
and/or facilitate expeditious trial of any crime of mob
38
BASIC FEA
ATURES OF T
THE CONSTIITUTION
►TRIPLE
► E TALAQ
In the case of
o Shayara BanoB v Unioon of India, Supreme
Court
C had sett aside the co
onstitutional vvalidity of triple talaq
by
b a majority of
o 3:2.
TRIPLE
T TALAQ
Q OR TEEN TA
ALAQ
Triple
T Talaq re
efers to a kindd of ‘instant ddivorce’ pron nounced
by
b Muslim me en to their wife when the w word Talaq is
pronounced
p th
hrice at one in
nstant. Such p pronounceme ent
validated
v the divorce
d instan
ntly, without ggiving any opttion to
the women co oncerned. Trip ple Talaq is alsso referred ass Talaq-
e-Biddat
e as peer Muslim law w. The concep pt of Triple Talaq does
not
n find a men ntion in the Holy Quran bu ut is part of Sh
hariat
Act,
A 1937.Shariat Act is an amalgamatio
a n of the Holy Quran,
the teachings and practicess of Prophet MMuhammad (H Hadis)
CO
OMMITTEE HE
EADED BY HO
OME SECRETA
ARY ON MOB and
a the natura al evolution of
o the legal fraamework in M
Muslim
LYN
NCHING societies.
s
• Four Member Committee of secretarie es headed by Home REASONS
R FOR
R UNCONSTIT
TUTIONALITY
Y OF TRIPLE T
TALAQ
Secretary
S w
was formed in July 2018 8 to look intto the
• It violated right to equality under Article 14 aand was
incidents of mob violennce and lyncchings and ssubmit
considered manifestly arbitrary, aggainst the dignity of
recommenda ations on wayss to tackle the
e challenge.
women and d violated the
e concept off gender equa
ality as it
• The
T committe ee has subm
mitted its repoort to the Gro
oup of did not pro
ovide them an
ny chance of hearing or ta
aking her
Ministers (Go
oM), headed by
b Home Min nister who will now opinion.
examine
e the recommenda
r tions of this p
panel.
• Such instan nt triple talaq
q left such wwomen vulne erable as
• The
T Committe ee was constituted in wake e of Supremee Court sole discrettion to grant talaq
t rested o
on decision o
of muslim
judgment
j whhere the Couurt directed tthe Centre to o draft men.
strong
s legisla
ation to make lynching a separate o offence
• In the casee of Shamimm Ara (2002), Supreme Co ourt held
and
a also to ta ake preventive
e measures to o control the sspread
that talaq ordained
o should be for a rreasonable caause and
of
o fake messa ages on sociaal media platfforms, after a series
must be preceded
p by attempts at reconciliatioon by an
of
o mob lynchiing incidents took place.
arbiter each
h from the wife’s and husb
band’s familiess.
AD
DVISORY BY MINISTRY
M OF HOME AFFAIIRS
• The Supremme court judg
gment in Shaayara Bano also asked
• As
A per the Constitutiona al scheme, ''Police' and 'Public the Parliam
ment to ena act a legislattion to regu
ulate the
Order'
O are State subje ects. State Governmentts are practice of triple talaq.
responsible for f controllinng crime, maaintaining laww and
As
A the triple talaq
t ordinance of 2018 w
was to expire on 22nd
order,
o and prrotecting the life and prop perty of the ciitizens.
January 2019 9 and also beecause the Trriple talaq billl of 2018
They
T are empowered to enact and en nforce laws to curb
could
c not beb passed in n the parli ament sesssion, the
crime
c in theirr jurisdiction.
government
g has re-prommulgated the ordinance on 10th
• State
S Governments are alsso competentt to enact legislation January 2019. On 12th January 2019, Prresident apprroved the
to
t make mob lynching a separate offfence. Accorrdingly, ordinance
o off 2019. The e NDA goveernment on its re-
Ministry of Home Affairs has issu ued advisories to election,has
e re-introduced
r d the Bill aggain as The Muslim
States/UTs
S for maintenancce of public orrder and prevvention Women
W (Prottection of Rig
ghts on Marrriage) Bill, 20
019 which
of
o crime in th heir areas of jurisdiction in
ncluding advissory on has
h sought to replace the ordinance
o of 22019.
addressing
a th
he issue of lyynching by m mob on suspiccion of
MAIN
M FEATUR
RES OF THE BILL
B
child
c lifting annd on disturbances by misccreants in the e name
o protection of cow.
of • The Bill aims to prote
ect the rightss of married
d Muslim
women and to prohibitt divorce by ppronouncing talaq by
39
RAU’S IA
ASFOCUS SPEECIAL EDITIO
ONS | MAINS COMPASS(C
C3CURATION)for CSE 20199
their husbands. It makes any pronouncement of talaq by a herself and for her dependent children. The amount of the
person upon his wife, by words, either spoken or written allowance will be determined by the Magistrate.
or in electronic form or in any other manner void and
CUSTODY
illegal.
A Muslim woman against whom such talaq has been
• As per the Bill, whoever pronounces triple talaq upon his
declared, is entitled to seek custody of her minor children.
wife shall be punished with imprisonment for a term which
The manner of custody will be determined by the Magistrate.
may extend to three years and fine. An offence
punishable under this Act shall be cognizable and non- CRITICISM OF THE BILL
bailable within the meaning of the said Code. A married 1. Criminalisation of the practice- Bill ends up criminalising a
Muslim woman upon whom talaq is pronounced, shall be law since the concept of marriage is of civil nature.
entitled to receive from her husband such amount of
2. Discriminatory in nature- Muslim men can be prosecuted
subsistence allowance for her and dependent children
even without agreement of the wife, due to declaration of
as may be determined by the Magistrate.
illegality. Three-year jail term for the husband particularly
• The Bill makes all declaration of talaq, including in written
when in no other religion is there such inclement
or electronic form, to be void (i.e. not enforceable in law)
punishment for uttering three words.
and illegal. It defines talaq as talaq-e-biddat or any other
similar form of talaq pronounced by a Muslim man 3. Removal of judicial oversight-Making the offence
resulting in instant and irrevocable divorce. Talaq-e-biddat cognisable, the police have the authority of arresting the
refers to the practice under Muslim personal laws where husband without leave of the court.
pronouncement of the word ‘talaq’ thrice in one sitting by 4. Custody and allowance- Section 3 declares talaq to be void
a Muslim man to his wife results in an instant and implying that it cannot result in divorce, yet the Bill goes on
irrevocable divorce.
to discuss post-divorce matters. Since talaq has been
OFFENCE AND PENALTY declared illegally void, the husband-wife relationship still
• The Bill makes declaration of talaq a cognizable offence, persists.
attracting up to three years’ imprisonment with a fine. (A 5. Virtual shutting of the doors on any possibility of
cognizable offence is one for which a police officer may reconciliation.
arrest an accused person without warrant.) The offence
The Islamic policy never meant to confer an absolute
will be cognizable only if information relating to the
authority of talaq upon a husband to be misused by him.
offence is given by: (i) the married woman (against whom
Unfortunately, this unrestricted power was always
talaq has been declared), or (ii) any person related to her
by blood or marriage. misinterpreted and gravely distorted and the actual
guidelines of Islam for it, was flouted by the society as well as
• The Bill provides that the Magistrate may grant bail to the
the courts. Islam leans in the favour of subsistence and
accused. The bail may be granted only after hearing the
saving the marital tie and not on divorce and separation. The
woman (against whom talaq has been pronounced), and if
main motive was and still is protecting the women who were
the Magistrate is satisfied that there are reasonable
victims of this weapon of Triple Talaq in the hands of
grounds for granting bail.
husband's to escape their obligations.
• The offence may be compounded by the Magistrate upon
the request of the woman (against whom talaq has been There can be no doubt that Triple Talaq was a wicked and
declared). Compounding refers to the procedure where reprehensible act both in law and theology. It has been
the two sides agree to stop legal proceedings, and settle asserted in various verses of the Quran and traditions by
the dispute. The terms and conditions of the compounding Prophet Muhammad (PBUH).
of the offence will be determined by the Magistrate. It was never a part of Muslim Law and can never be. Quran
ALLOWANCE clearly illuminates the method of dissolution of nuptial ties,
thus only that method must be resorted to.
A Muslim woman against whom talaq has been declared, is
entitled to seek subsistence allowance from her husband for
40
►RESERVATION IN PROMOTION FOR Article 16 (4A)(Added by Constitution 77th Amendment) -

Nothing in this article shall prevent the State from making
MEMBERS OF SC/ST
any provision for reservation in matters of promotion, with
Five Judge Constitution Bench in the case of Jarnail Singh vs consequential seniority, to any class or classes of posts in
Lachhmi Narain Gupta has modified a 2006 judgment ofM. the services under the State in favour of the Scheduled
Nagraj v Union of India which required the state to show Castes and the Scheduled Tribes which, in the opinion of
quantifiable data to prove backwardness of members of the State, are not adequately represented in the services
Scheduled Caste (SC) and Scheduled Tribe (ST) in order to under the State.
provide quota in promotion in public employment. Recently,
UNDERSTANDING WHAT HAPPENED IN INDRA SAWHNEY
the Supreme Court has upheld validity of the Karnataka
Extension of Consequential Seniority to Government • The case decided by Nine Judge Constitution Bench. The
Servants Promoted on the Basis of Reservation (to the bone of contention in this landmark judgment was the
Posts in the Civil Services of the State) Act, 2018. This law Mandal Commission Report of 1980, which was laid
grants reservation in promotion and consequential seniority before Parliament on two occasions – once in 1982, and
to the Scheduled Castes and Scheduled Tribes in government again in 1983.
services in the state of Karnataka. This judgment is significant • However, no action was taken on the basis of this Report
as Karnataka has become the first state to benefit from the until 13.08.1990, when an Office Memorandum stated that
2018 Constitution Bench judgment in the case of Jarnail Singh after considering the said Report, 27% of the vacancies in
vs Lachhmi Narain Gupta. civil posts and services under the Government of India
ISSUES INVOLVED shall be reserved for the Socially and Economically
Backward Classes.
• The controversy in the case of Jarnail Singh vs Lachhmi
Narain Gupta arose due to the interpretation of Article 16 • This was followed by an Office Memorandum of
(4A) which was added by Constitution 77th Amendment. 25.09.1991, by which, within the 27% of vacancies,
• Article 16 (4A) mentions that state can make provisions ο preference was to be given to candidates belonging to
for reservation in matters of promotion, with the poorer sections of the Socially and Economically
consequential seniority, to any class or classes of posts in Backward Classes; and
the services under the State in favour of the Scheduled ο 10% vacancies were to be reserved for Other
Castes and the Scheduled Tribes which, in the opinion of Economically Backward Sections who were not
the State, are not adequately represented in the services covered by any of the existing schemes of reservation.
under the State.
The majority judgments upheld the reservation of 27% in
• So, the Court confined their entire judgment based on two favour of backward classes, and the further subdivision
grounds: of more backward within the backward classes who were
1. Whether the state has to collect quantifiable data to to be given preference, but struck down the reservation
show backwardness of members of SC and ST? of 10% in favour of Other Economically Backward
categories.
2. Can the concept of creamy layer be applied to the
members of SC and ST as it will amount to sub- The Court contrasted Article 16(4) with Article 15(4), and
classification within the members of SC and ST. stated that Article 16(4) refers to any backward class of
(considering the fact that it was declared in Indra citizens where it refers primarily to social backwardness.
Sawhney that further sub-classification within • The Court held that the test or requirement of social and
Scheduled Castes and Scheduled Tribes is not educational backwardnesscannot be applied to
permissible.) Scheduled Castes and Scheduled Tribes, who
indubitably fall within the expression “backward class of
Article 16 (4) - Nothing in this article shall prevent the State
citizens”. Thus, members of SC/ST do not have to prove
from making any provision for the reservation of
their backwardness.
appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately • The Scheduled Castes and the Scheduled Tribes are the
represented in the services under the State. most backward among backward classes and it is,
41
therefore, presumed that once they are contained in the FINAL JUDGMENT IN JARNAIL SINGH VS LACHHMI NARAIN
Presidential List under Articles 341 and Article 342 of the GUPTA
Constitution of India, there is no question of showing • There is no need to revisit the judgment of M. Nagaraj by
backwardness of the Scheduled Castes and the Scheduled a 7-judge Constitutional Bench.
Tribes all over again.
• States no longer need to collect quantifiable data on the
• The advanced sections among the OBCs (the creamy backwardness of SCs and STs in granting quota in
layer) should be excluded from the list of beneficiaries of promotions. However, the states will have to back it with
reservation. It further held that creamy layer principle is data to show their inadequate representation in the
only confined to Other Backward Classes and has no cadre. The Court said that the principle of creamy layer
relevance in the case of Scheduled Tribes and Scheduled can be extended to members of SC/ST for promotions in
Castes. government jobs.
• There shall be no reservation in promotions and the • The whole object of reservation is to see that backward
reservation should be confined to initial appointments classes of citizens move forward so that they may march
only. hand in hand with other citizens of India on an equal basis.
• This will not be possible if only the creamy layer within that
• The reasoning was that reservations exist to create a level-
class bag all the coveted jobs in the public sector and
playing field, to remedy unequal starting positions, thereby
perpetuate themselves, leaving the rest of the class as
removing the justification for reservation in promotion.
backward as they always were.
JUDGMENT IN M. NAGRAJ V. UNION OF INDIA
• When a Court applies the creamy layer principle to
• In this case, the constitutional validity of 77th Amendment Scheduled Castes and Scheduled Tribes, it does not in any
was challenged which provided for reservation in manner tinker with the Presidential List under Articles
promotion along with other amendments on backlog 341 (Scheduled Castes) or 342(Scheduled Tribes) of the
vacancies in reservation. Constitution of India.
• The Supreme Court upheld the constitutional validity of • The Court excluded the creamy layer from such groups
th
77 Amendment and said these were mere enabling or sub-groups (including members of SC/ST) when
provisions. applying the principles of equality under Articles 14 and 16
of the Constitution of India.
• If a state government wishes to make provisions for
reservation to SC/STs in promotion, the state has to ISSUE OF PROMOTION OF SC/ST IN KARNATAKA
collect quantifiable data showing backwardness of the • Karnataka constituted the Ratna Prabha
class and inadequacy of representation of that class Committee(2017)& based on the report, it enacted the
and maintenance of efficiency. Karnataka Promotion on Basis of Reservation Act, 2018.
• The Court allowed reservations in promotion for • Supreme Court in its 2019 judgment has upheld the
members of SC/ST subject to proving three conditions: validity of the reservation law of Karnataka grants
reservation in promotion and consequential seniority
 Backwardness of class – so there is a need for quantifiable
to the Scheduled Castes and Scheduled Tribes in
data to prove backwardness
government services in the state of Karnataka.
 Inadequacy of representation
• A ‘meritorious’ candidate is not merely one who is ‘talented
 Administrative Efficiency – Article 335 ‘or ‘successful’ but also one whose appointment fulfils the
constitutional goals of uplifting members of the SCs and
Article 335 - The claims of the members of the Scheduled Castes
STs and ensuring a diverse and representative
and the Scheduled Tribes shall be taken into consideration,
administration.
consistently with the maintenance of efficiency of administration,
in the making of appointments to services and posts in • The Court held that quota for Scheduled Castes and
connection with the affairs of the Union or of a State. Scheduled Tribes is “not at odds with the principle of
meritocracy” and is “true fulfillment of effective and
42
substantive equality by accounting for the structural • Earlier, a Five Judge Constitution Bench in 1968 has held in
conditions into which people are born”. the Aziz Basha case that AMU was a "Central University"
and not a minority institution as it was passed by an Act of
• SC upheld the view in R K Sabharwal Case (1995) that it is
Parliament.
open to the State to make reservation in promotion for
SCs and STs proportionate to their representation in the • After the 1968 verdict of Supreme Court, the AMU
general population. (Amendment) Act, 1972 and thereafter the AMU
(Amendment) Act, 1981 came into force. This amendment
• SC has said that Article 335 recognises that special
accorded minority status to AMU.
measures need to be adopted for considering the claims
• However, the Allahabad High Court in January 2006 struck
of SCs and STs for access to opportunity & it is within
down the provision of the 1981 amendment Act by which
authority of the Union and the States to adopt special
the university was accorded the minority status.
measures for claims to appointment in services and posts
under the Union and the States. • So, now the Seven Judge Bench of Supreme Court will
finally decide whether AMU is a minority institution under
• Efficiency of administration in the affairs of the Union or of
Article 30 of the Indian Constitution or not.
a State must be defined in an inclusive sense, where
diverse segments of society find representation Article 30 - Right of minorities to establish and administer
educational institutions. All minorities, whether based on
• The Court held that the Karnataka law does not
religion or language, shall have the right to establish and
amount to a usurpation of judicial power by the state
administer educational institutions of their choice. The State
legislature&it is a valid exercise of the enabling power shall not, in granting aid to educational institutions,
conferred by Article 16 (4A) of the Constitution. discriminate against any educational institution on the
Administrative efficiency is an outcome of the actions ground that it is under the management of a minority,
taken by officials after they are appointed or promoted. It whether based on religion or language.
is not tied to the selection method itself.
WHAT IS A MINORITY INSTITUTION?
Thus, the Supreme Court upheld the constitutional validity of
Karnataka law and held that backwardness of the SCs and • Right to establish a Minority Educational Institution has
STs need not be demonstrated by state in order to grant been provided under National Commission for Minority
reservation in promotions to members of SCs/STs. Educational Institutions Act, 2004.
• Any person, who desires to establish a Minority
Educational Institution may apply to the competent
►S.C.TO DECIDE ON MINORITY authority for the grant of no objection certificate under
STATUS OF AMU National Commission for Minority Educational Institutions
Act, 2004.
Three Judge bench headed by CJI Justice Gogoi has referred
• “Competent authority” means the authority appointed by
the issue of minority status of Aligarh Muslim University to a
the appropriate Government to grant no objection
Seven Judge Bench of the Supreme Court. The larger Bench
certificate for the establishment of any educational
will decide whether the Aligarh Muslim University and other
institution of their choice by the minorities.
educational institutions can be granted minority status
including the requirement for an educational institution to • A Minority Educational Institution may seek affiliation to
receive minority status. any University of its choice subject to such affiliation being
permissible within the Act under which the said University
BACKGROUND
is established.
• Aligarh Muslim University (AMU) was established through
• “Minority Educational Institution” means a college or an
The Aligarh Muslim University Act, 1920. Parliament then
educational institution established and administered by a
passed the AMU (Amendment) Act, 1951 and did away with
minority or minorities.
the compulsory instructions in Muslim Theology. The
amendment opened membership of the Court of AMU to
non-Muslims.
43
Section-2
E XECUTIVE AND
L EGISLATIVE
EXECUTIVE AND LEGISLATIVE
►CLEMENCY POWER OF PRESIDENT DEBATES/ISSUES RELATED TO PARDONING POWER

a) Should there be any timeframe for granting of pardon?
AND GOVERNOR
• There is a debate as to whether we can have a time frame
The Power to Pardon includes the power to commute (when
for the exercise of the pardon power.
death sentence is commuted to one of life imprisonment),
the power to reprieve (withdrawal of a sentence for a while • The Supreme Court is of the view that delay in the decision
thus postponing the execution of the sentence), Power to of the President causes avoidable mental agony and
Remit the punishment, in whole or in part. suffering to the convict. Therefore, to contain such
unnecessary harm to the convict there should be a time
Constitution has provided pardoning powers to the President
frame during which the executive has to give its decision.
and Governor.
• Article 21 demands that any procedure, which takes away
Hereby discussing the powers provided and issues of timeline
the life and liberty of persons, must be reasonable, just
of verdict on pardoning and judicial review has been covered
and fair.
in the article.
• This procedural fairness is required to be observed at
PARDONING POWER OF PRESIDENT AND GOVERNOR
every stage and till the last breath of life. If there has been
Power of pardon under Article 72 and 161 by the Constitution an inordinate delay in the disposal of a mercy petition then
is different from judicial power as the Governor or the procedural fairness is vitiated and Article 21 is violated.
President can grant pardon or reduce the sentence of the Therefore, there should be a time frame for the disposal of
court even if a minimum is prescribed. a mercy petition.
DIFFERENCE BETWEEN PARDONING POWERS OF • However, there is a different point of view as well. The
PRESIDENT AND GOVERNOR time taken by the executive for disposal of mercy petitions
• The scope of the pardoning power of the President under may depend upon the nature of the case and the scope of
Article 72 is wider than the pardoning power of the inquiry to be made. It may also depend upon the number
Governor under Article 161. The power differs in the of mercy petitions submitted by or on behalf of the
following two ways: accused.
• The power of the President to grant pardon extends in • Moreover, no fixed delay can be considered a fixed period.
cases where the punishment or sentence is by a Court The court, therefore, cannot prescribe a time limit for
Martial but Article 161 does not provide any such power to disposal even of mercy petitions.
the Governor. b) Is Judicial Review available on Clemency powers?
• The President can grant pardon in all cases where the • In the case of Epuru Sudhakar v. Government of Andhra
sentence given is sentence of death but pardoning power Pradesh, the Supreme Court laid down that judicial review
of Governor does not extend to death sentence cases. under Articles 72 and 161 is available on the following
PURPOSE OF GRANTING PARDON grounds: -
• Pardon may substantially help in saving an innocent ο That the order has been passed without application of
person from being punished due to miscarriage of justice mind;
or in cases of doubtful conviction. ο That the order is mala fide;
• The hope of being pardoned itself serves as an incentive ο That the order has been passed on extraneous or
for the convict to behave himself in the prison institution wholly irrelevant considerations;
and thus, helps considerably in solving the issue of prison
ο That the order suffers from arbitrariness.
discipline.
• The Court also emphasized that for effective exercise of
• It is always preferable to grant liberty to a guilty offender
judicial review reasons for the exercise of power under
rather than sentencing an innocent person.
these articles must also be provided.
• The object of pardoning power is to correct possible
• Besides, it held that pardon obtained on the basis of
judicial errors, for no human system of judicial
manifest mistake or fraud can also be rescinded or
administration can be free from imperfections.
cancelled.
45
RAU’S IASFOCUS SPECIAL EDITIONS | PRELIMS COMPASS(C3CURATION)for CSE 2019
• The Court further elaborated that if power under Article 72 circumstances, which may properly mitigate guilt. To
is exercised on irrational, irrelevant, discriminatory afford a remedy, it has always been thought essential in
grounds or in bad faith, then in such cases Court can popular governments, as well as in monarchies, to vest in
examine the case and intervene if necessary. some other authority than the courts, power to improve or
c) Is it a violation of Separation of Power? avoid particular criminal judgments. It is only a check
entrusted to the Executive for special cases.
• The President while exercising the power under Article 72
can go into the merits of the case notwithstanding that it • It is clear that the powers vested in the President of India
has been judicially concluded by the consideration given to under Art. 72; in the Governor under Article 161 of the
it by the Supreme Court. Constitution and in the State Government under S. 401 of
the Cr.P.C. are essentially executive powers of mercy which
• The power under Article 72 entitles the President to
operate in completely different fields. The trial of criminals
examine the record of evidence of the criminal case and to
and the passing of sentences are purely in the domain of
determine for himself whether the case is one deserving
the judiciary whereas the execution of sentences is purely
the grant of the relied falling within that power. He can, on
with the Executive Government.
scrutiny of the evidence on record in the criminal case,
come to a conclusion different from that recorded by the • Thus it is clear that the orders under Article 72 are
Court in regard to the guilt of, and sentence imposes on, essentially and basically executive orders in a completely
the accused. different field. The Head of the Executive exercises his
powers of mercy under the Constitution commonly known
• In doing so, the President does not amend or modify or
as ‘mercy jurisdiction’.
supersede the judicial record. The judicial record remains
intact and undisturbed. • Since no such powers are vested with any judicial organ;
there can be no infringement upon its functions.
• Therefore, there is no interference with the functions of
the judiciary. The administration of justice by the courts is
not necessarily always wise or certainly considerate of
SPICE APPROACH
• Punishment can be used as a method of reducing the incidence of criminals behaviour either by
deterring the potential offenders or by incapacitating and preventing them from repeating the
offence or by reforming them into law-abiding citizens. Pardon may substantially help in saving
Social dimension an innocent person from being punished due to miscarriage of justice or in cases of doubtful
conviction. It has been the safety valve by which harsh, unjust, or unpopular results of formal
rules could be corrected.
• It helps in rebuilding the trust on judiciary among common people.
Article 72 of the Indian Constitution empowers thatthe President has power to grant pardons,
reprieves, respites, remissions of punishments or to suspend, remit or commute sentence of any
Political/Legal person convicted of an offence where punishment or sentence is by a Court martial, is for an
Dimension offence against any law relating to a matter to which the executive power of the union extends, in
where the sentence is a sentence of death, A parallel power is given to the Governor of the State
under Article 161.
• Due to the procedural limitations there is a delay caused in disposing of the pardoning petitions.
Delay adversely affects the prisoners’ rights and sometimes even the mental health of the
Institutional
prisoners is suffered. There should be some fixed time fra me for the disposa l of mercy petitions.
dimension
• The exercise of power by the president is subject to judicial review where the presidential
decision is arbitrary, irrational, malafide or discriminatory.
46
Pardon should be granted on the basis of public welfare and rule of law, not because of any
Cultural dimension religious, political or cultural affinity. The ultimate purpose of granting a pardon should be, to create
a better society to live in.
Economic
dimension
►DISCRETIONARY POWERS OF THE • The Act provided for certain Special Responsibilities for the
Governor regarding preservation of law and order:
GOVERNOR
ο prevention of any grave menace to the peace or
The head of the executive in all the states is the Governor, tranquility;
who is the constitutional head like the President. The real
ο safeguarding legitimate interests of minorities;
executive power in a state is vested in the Council of
Ministers headed by the Chief Minister. Art. 153 create the ο securing of the peace and good government of partially
office of the Governor. Generally each state has a Governor excluded areas.
but under the provision to Art. 153 the same person may be • The Act also provided him to secure administrative
appointed Governor for two or more states. The executive relations between federation provinces and states.
power of the state is exercise by the Governor either directly
DISCUSSION ON ROLE OF GOVERNOR IN THE
or through officers subordinate to him. He has been provided
CONSTITUENT ASSEMBLY
few discretionary powers.
• When partition of India was palpable and in the garb of
Time and again there are debated related to it. Hereby
partition, some provinces and princely states were thinking
understanding the functions and limitations of the post of
about leaving Indian Union. Thus, it was during these times
Governor as envisaged in modern times.
that the discussions on the roles and responsibility of the
DISCRETIONARY POWERS OF THE GOVERNOR position of Governor were being discussed in the
Indian Constitution states that there shall be a Council of Constituent Assembly. Thought process “…. The Governor
Ministers headed by the Chief Minister to aid and advise the being the agency of the Centre is the only guarantee to
Governor and the Governor shall exercise his powers integrate the various Provinces or States and will see that
according to such advice except where the Constitution the Central policy is sincerely carried out. Therefore, the
requires him to act in his discretion. Governor's discretionary powers should not be interfered
with.”
THE POWERS ARE
• After much discussions and deliberation, it was agreed
• Choice of Chief Minister in case of a hung Assembly.
upon that the role of governor was crucial and it was
• Asking the Government to prove its strength in the necessary to bestow him with certain discretionary power.
Assembly.
• Thus, it was envisaged that governor must be in direct
• Dismissing a Chief Minister who loses the confidence of relation with the Centre to keep the centre informed and
the House. updated about any fissiparous tendencies emerging in any
• Recommending President's Rule (Art.356). states or provinces.
• Reserving Bills for consideration of the President (Art. 200). ISSUES RELATED TO THE POST OF GOVERNOR
POWERS OF GOVERNOR UNDER GOI, 1935 a) Controversy in appointment of Chief Minister
• The Act gave governor certain discretionary powers • The Executive Power of a State shall be vested in the
regarding aid and advice by his council of minister. Governor who shall be the head of the State. The
Governor is appointed by the President and shall hold
• The Act also empowered the governor to issue
office during the pleasure of the President. Thus,
proclamation in case of failure of constitutional machinery
effectively the governor acts as the head of the state and
of states.
also as a representative of the Centre.
47
• Controversy at times arises when both functions of the • The Governor should not resort to mechanisms where
Governor overlap and the question arises as to which determining of majority of the government is done outside
function supersedes which in this era of multi-party the assembly.
system. This dual function of the Governor in recent times VIEWS OF PUNCHHI COMMISSION - 2007
has created enough controversies where different parties
A Commission headed by former Chief Justice of India M. M.
enjoy power at the Centre and in the States.
Punchhi was set up in April 2007 to take a fresh look at the
• In most of the recent held Assembly elections in Goa, roles and responsibilities of governments at various levels,
Manipur, Meghalaya and Karnataka, no political party had and the relations between them. The Commission
majority on their own. Hence, in such a situation the role recommended that there should be clear guidelines for the
of governor became crucial as he has discretion to call appointment of Chief Ministers, so that there was some sort
either - of regulation on the discretionary power of the Governor. It
ο the single largest party, said that a pre-poll alliance must be treated as one political
ο political parties having pre-poll alliance or party, and laid down the order of precedence that the
Governor must follow in case of a hung House:
ο different political parties who may stitch a post poll
alliance • Group with the largest pre-poll alliance commanding the
largest number;
• The use of such discretionary powers at times becomes
controversial when different political parties are in • Single largest party with support of others;
government at the Centre and in the state. It is important • Post-electoral coalition with all parties joining the
to note here that discretion given by the constitution has a government;
purpose and such powers needs to used only to fulfill the • Post-electoral alliance with some parties joining the
mandate of the constitution and not of any political party. government, and the remaining, including Independents,
VIEWS OF SARKARIA COMMISSION supporting from outside.
The central government set up the Justice R S Sarkaria b) Appointment of Governor
Commission in June 1983 to examine the relationship and • The provision for centrally appointed Governors for the
balance of power between state and central governments. States has remained as an anachronism, which is not in
The Commission suggested that in choosing a Chief Minister, keeping with a federal democratic polity. If the post of
the Governor should be guided by the following principles: Governor has to be retained, then the Governor should be
• The party or combination of parties that command the appointed by the President from a list of three eminent
widest support in the Legislative Assembly should be persons suggested by the Chief Minister, satisfying the
called to form the government. criteria mentioned by the Sarkaria Commission.
• The Governor’s task is to see that a government is formed • The Sarkaria Commission approvingly quoted the eligibility
and not to try to form a government that will pursue criteria that Jawaharlal Nehru advocated and
policies that he approves. recommended its adoption in selecting Governors. These
• If no party has a majority, the Governor has to invite: criteria are:
ο He should be eminent in some walk of life.
a) a pre-poll alliance,
b) the largest single party that is able to gain majority ο He should be a person from outside the State
support, ο He should be a detached figure and not too intimately
c) a post-election coalition that has the required members, connected with the local politics of the States; and
ο He should be a person who has not taken too great a
d) a post-election coalition in which partners are willing to
extend outside support. part in politics generally and particularly in the recent
past.
• The Commission recommended that whoever is appointed
as the Chief Minister, must seek a vote of confidence in the • The words and phrases like "eminent", "detached figure",
Assembly on the floor of the House within 30 days of "not taken active part in politics" are susceptible to varying
taking over.
48
interpretations and parties in power at the Centre seem to • Of course, such impeachment can only be in relation to the
have given scant attention to such criteria. discharge of functions of the office of a Governor or
• The result has been politicization of Governorship and violations of Constitutional values and principles.
sometimes people unworthy of holding such high • The procedure laid down for impeachment of President,
Constitutional positions getting appointed. This has led to mutatis mutandis can be made applicable for
some parties demanding the abolition of the office itself impeachment of Governors as well.
and public demonstration against some Governors in c) Misuse of Article 356
some States. This trend not only undermines
• Under Article 356, the President can dismiss a State
Constitutional governance but also leads to unhealthy
Government or dissolve a State Assembly or keep it under
developments in Centre-State relations.
suspended animation in the event of a failure of the
VIEWS OF M.M PUNCHI COMMISION constitutional machinery in that State. The Article owes its
• Given the status and importance conferred by the genesis to Section 93 of the Government of India Act 1935,
Constitution on the office of the Governor and taking into a section which essentially dealt with the "taking over of
account his key role in maintaining Constitutional the Provincial Government by the Governor."
governance in the State, it is important that the • Since the coming into force of the Constitution on 26
Constitution lays down explicitly the qualifications or January 1950, Article 356 and analogous provisions have
eligibility for being considered for appointment. been invoked 111 times.
• The Commission is of the view that the Central S.R. BOMMAI V UNION OF INDIA
Government should adopt strict guidelines as
• In 1989, S.R. Bommai was the Chief Minister (CM) of
recommended in the Sarkaria report and follow its
Karnataka. Some members of the party defected which
mandate in letter and spirit lest appointments to the high
raised suspicion on majority for the government.
Constitutional office should become a constant irritant in
Centre-State relations and sometimes embarrassment to • The CM suggested the Governor to call the Assembly
the Government itself. session for a floor test.
• Governors should be given a fixed tenure of five years and • The Governor ignored the suggestion and without trying to
their removal should not be at the sweet will of the find another alternative to form the government asked the
Government at the Centre. President to impose Article 356.
• The phrase "during the pleasure of the President" in Article • Bommai challenged the proclamation in the Karnataka
156(i) should be substituted by an appropriate procedure High Court. The Karnataka High Court dismissed the
under which a Governor who is to be reprimanded or petition without questioning the grounds on which
removed for whatever reasons is given an opportunity to proclamation was issued. The Court also ruled that
defend his position and the decision is taken in a fair and recourse to floor test was not a pre-requisite to the
dignified manner befitting a Constitutional office. sending of report to the President.
• It is necessary to provide for impeachment of the • The case was appealed in the Supreme Court where it gave
Governor on the same lines as provided for impeachment the following orders to be followed in case of proclamation
of the President in Article 61 of the Constitution. The issued under Article 356:
dignity and independence of the office warrants such a ο The President exercises his power under Article 356 (1)
procedure. on the advice of the Council of Minister.
• The "pleasure doctrine" coupled with the lack of an ο The question whether the Chief Minister has lost
appropriate procedure for the removal of Governors is majority support in the Assembly must be decided on
inimical to the idea of Constitutionalism and fairness. the floor of the House and not in Governor’s chamber.
Given the politics of the day, the situation can lead to
ο Governor must try to explore the possibility of an
unsavory situations and arbitrariness in the exercise of
alternative ministry before asking the President to
power.
impose Article 356(1).
49
ο The material facts on which proclamation was issued prevent its misuse lies in the domain of creating
can be judicially reviewed to ascertain whether such safeguards and constitutional conventions governing its
facts had any rational nexus to the action proposed or use. The ultimate protection against the misuse of article
were done in bad faith or by arbitrary decision. 356 lies in the character of the political process itself.
ο The dissolution of State Assembly is not an automatic • The Commission is, therefore, for generating a
outcome of every proclamation under Article 356. The constitutional culture that relies on conventions and treats
dissolution of the Assembly prior to the approval of the them with same respect as a constitutional provision.
Proclamation under Article 356(3) shall be invalid. • In case of political breakdown, the Commission
• Thus, the judgment on S.R. Bommai provided certain recommends that before issuing a proclamation under
limitations on the use of discretionary power of the article 356 the concerned State should be given an
governor under Article 356. Sarkaria Commission and opportunity to explain its position and redress the
Punchhi Commission further laid down certain norms to situation, unless the situation is such, that following the
be followed in case of Hung Assembly. above course would not be in the interest of security of
SARKARIA COMMISSION VIEWS State, or defence of the country, or for other reasons
necessitating urgent action.
• The Commission was not in favour of deletion of Article
356.
• In considering the issues raised regarding article 356 the
Commission found that a great part of the remedy to
SPICE APPROACH
The continuous misuse of the post of Governor may reduce the faith of people on the constitutional
Social dimension
which in turn may lead to establishment of anarchy in the society.
The governor acts as the head of the state and also as a representative of the Centre.
The Governor exercises his discretion at following instances -
• Selecting a chief minister after elections when there is hung assembly.
Political/Legal
• Dismissing the government, if the cabinet no longer holds the confidence of the house.
Dimension
• Dissolving the Legislative Assembly due to political instability.
• Advising the President to proclaim emergency if the conditions in state are not viable for normal
conduct of the government.
• Governor is appointed by the President till the pleasure of the President. Hence Governor in the
real sense is a protem of the party in power. As a natural corollary, he is to look after the vested
interests and health of the party in power to which he is politically related. Consequently, his
judgment is bound to affect the State’s decision making process by the ideas which he already
Institutional has on his slate. In this state of mind intrinsically he will be pushed to do even apolitical act to
dimension safeguard the health of his party, may it adversely affect the smooth functioning of the State.
While passing through this sort of affairs, off and on, he has to act as a cross Governor. This
dilutes the federal structure of the nation.
• Governor as an institution should work according to the constitutional provisions rather than the
whims and fancies of the Centre.
The Governor should maintain the integrity and probity of the post and should develop a neutral
Cultural dimension
and apolitical administrative culture which is governed solely on constitutional principles.
Economic
dimension
50
►SIGNIFICANCE OF STRONG belonging to an opposition party. As a chairman of some

of these parliamentary panels, an opposition leader
OPPOSITION IN DEMOCRACY contributes towards strengthening legislation in an
A party might not be able to form the government at the informed and participatory manner.
center because of the lack of majority, but that doesn’t take • The incumbent should offer constructive criticism of
away the responsibility of acting as a watchdog of the ruling government policies. He/she has to ensure that House
party. For a healthy Parliamentary democracy it is always proceeds expeditiously and holds adequate debate on
considered essential that there should be a strong pressing issues.
opposition, which should always be in a position to saddle
Opposition has the key role to play in the democratic setup of
itself in authority.
governance its responsibility is most often seen in the
Hereby discussing the role of opposition in Democracy. negative perspective because they have failed to complete
WHAT IS LEADER OF OPPOSITION? their basic duties as the leaders representing their respective
constituencies.
• Opposition party and Leader of the Opposition (LoP) of the
Lok Sabha is appointed under the Salary and Allowances of The strategies an Opposition party often makes for the anti-
Leaders of Opposition in Parliament Act, 1977. incumbency of ruling party might enhance their own winning
prospect but the country as a whole moves towards the path
• In order to get the designation as the Opposition party, the
which is bleak, politically immature and economically
party must have secured at least 10% of the total number
unsustainable hence there is nothing to bring progress.
of seats in the parliament. It is important to note that the
single party and not an alliance must meet the 10% seat They should play role in the country’s governance so that the
criteria in this regard. health of the democracy can be safeguarded.
• The Act extends to LoPs in the Lok Sabha and the Rajya HISTORICAL EVOLUTION OF LEADER OF OPPOSITION
Sabha the same official status, allowances and perks that • The first officially designated Opposition party in
are admissible to Cabinet Ministers. Parliament emerged from the break-up of the all-dominant
• In the case of the Lok Sabha, this is subject to recognition Congress party in power. In 1969, when Indira Gandhi was
of the leader by the Speaker. the Prime Minister, the Congress split to form the Indian
National Congress (Requisitionists) and the Indian National
ROLE OF OPPOSITION PARTY
Congress (Organisation). The Leader of INC(O), Ram
• It ensures that the government does not get away with
Subhag Singh, became the first person to be formally
policies that are not in the wider interests of society and
recognised as LoP in the Lok Sabha.
the country and which ensures that the government lives
• In the 6th Lok Sabha, the Congress sat in the Opposition.
up to its commitments. The opposition’s job is to hold the
Following splits in the Congress as well as the Janata Party,
administration up to account and to keep it on its toes.
Yashwantrao B. Chavan, C.M. Stephen and Jagjivan Ram
• Besides debating legislation in the House and ensuring
were successive LoPs.
that it’s a well thought out decision, the opposition should
• Until 1977, there were no emoluments and perks attached
also protest any Bill that may go against the interest of the
to the position of LoP. There is no provision in the
country. The opposition MPs need to see themselves as
Constitution or even in the Lok Sabha Rules of Procedure
representatives of common people who expect justice and
in regard to the recognition of the LoP. Right from the first
freedom from unlawful practices.
Lok Sabha, the practice has been to recognise the leader of
• The opposition members of the parliament need to be
the largest party in Opposition as the LoP provided that
proactive enough to raise questions and recommend
party has a strength that is enough to constitute the
methodologies to the government. Apart from examining
quorum for a sitting of the House, or one-tenth of the total
the performance of the executive, it also has to
membership of the House — at present that comes to 55
demonstrate its achievements or policies that can
members.
contribute towards the efficient running of the country.
• From the 9th to the 15th Lok Sabhas, since the
• Public Accounts Committee, which investigates the use of
requirement of having a minimum strength of 55
finances granted to the government, is led by a member
members was fulfilled, the Lok Sabha had duly recognised
51
Opposition parties and LoPs, including Rajiv Gandhi, L.K. the government in cases where no party secures a clear
Advani, Atal Bihari Vajpayee, P.V. Narasimha Rao, Sharad majority support in the House, move to call pre-poll alliance.
Pawar, Sonia Gandhi and Sushma Swaraj. PROPOSED BENEFITS
• The 1977 Act defines LoP as that member of the House • It has the potential for the growth of a sound two- or
who is the “Leader in that House of the party in opposition three-party (or alliance) system. It could end the present
to the Government having the greatest numerical strength system of having more than 2,000 parties being registered
and recognised as such by the Chairman of the Council of with the Election Commission.
States or the Speaker of the House of the People, as the
• It may provide for candidates of an alliance contesting on a
case may be.”
common symbol and an agreed common minimum
• The Speaker’s decisions in this regard have so far been programme with only national alliances or parties
determined by Direction 121(c) which laid down one of the contesting for the Lok Sabha.
conditions for recognition of party or group as having “at
ROLE OF OPPOSITION PARTY IN UK
least a strength equal to the quorum fixed to constitute a
sitting of the House, that is one-tenth of the total number The Opposition’s main role is to question the government
of members of the House”. of the day and hold them accountable. Opportunities for
scrutinising the policies and administration of the
• The Leaders and Chief Whips of Recognised Parties and
Government are provided in Question Time, the Address
Groups in Parliament (Facilities) Act, 1998 also refers to a
in-Reply debate, Budget debates, debates on legislation,
recognised party in the Lok Sabha as a party that has not
notices of motion and No Confidence Motions. Members
less than 55 members.
of the Opposition who are members of parliamentary
SPEAKER’S DISCRETION committees have a further opportunity to scrutinise new
Since there is no constitutional provision, the 1977 law does legislation as part of the committee process. The
not provide for the requirement of 55 members as an Opposition also utilises the media to reach the electorate
essential pre-requisite. It depends on the Speaker’s directions with its views and to establish an identity as an
and discretion. alternative government.
RECOMMENDATIONS FOR IMPROVEMENT The Opposition appoints Shadow Ministers who, with the
• In order to get the designation as the Opposition party, the Leader of the Opposition, collectively form a Shadow
party must have secured at least 10% of the total number Cabinet. The role of a Shadow Minister is to follow closely
of seats in the parliament. the areas and responsibilities and activities of
Government Ministers. It is also the duty of the Shadow
• Thus the “party” should be replaced ‘party or pre-poll
Cabinet to respond to Government policy initiatives and
alliance’.
offer alternative policies to the electorate.
Pre-poll alliances have credibility and legitimacy the President
and Governors while deciding on who to call first for forming
SPICE APPROACH
• Leader of opposition ensures that the government does not get away with policies that are not in
the wider interests of society and the country and which ensures that the government lives up to
Social dimension its commitments.
• Cross questioning and debates help in formation of inclusive programmes and policies which help
in societal development.
Political/Legal • Leader of the Opposition (LoP) of the Lok Sabha is appointed under the Salary and Allowances of
Dimension Leaders of Opposition in Parliament Act, 1977.
Institutional • In order to get the designation as the Opposition party, the party must have secured at least 10%
52
dimension of the total number of seats in the parliament, however it is a convention not written in the Act.
• The Act extends to LoPs in the Lok Sabha and the Rajya Sabha the same official status, allowances
and perks that are admissible to Cabinet Ministers.
Cultural dimension • It helps in developing a culture of transparency and accountability in the governance.
Economic
dimension
►DUTIES AND ROLE OF PRIME ministries and department carry out the Cabinet’s policy
decision. Cabinet headed by the PM is the central directing
MINISTER instrument of government in legislation as well as
POSITION & ROLE OF PM administration. Thus, we see that the PM through the Cabinet
decision making process, takes and implement key
In the mechanism of parliamentary form of government, PM
administrative decisions of the government.
occupies a crucial position and is often described as keystone
of the Constitution. The Prime Minister is the leader of DUTY & RESPONSIBILITIES
majority party or a group of parties in the Lok Sabha. Prime However, the Prime Minister alone is not enough to carry on
Minister shall be the head of his council of ministers to aid the works of administration and he needs his colleagues or
and advise the President who shall in the exercise of his his council to perform his constitutional duties. No Bill can be
functions, act in accordance with such advice. Thus, Prime passed in Parliament only on the advice or recommendations
Minister becomes the channel or the bridge for of the Prime Minister including a constitution amendment
communication between the President and Council of Bill. In a coalition government, the PM has to adjust to the
Ministers. demands of different political parties whose support is
PM & HIS COUNCIL OF MINISTER necessary to collectively run the government and stay in
majority on the floor of the house.
Prime Minister is appointed by the President and other
ministers are appointed by the President on the advice of the As per Article 78, it shall be the duty of PM to furnish
Prime Minister. Thus, the PM is responsible for allocating information to the President -
work to his different ministers and also co-ordinates • about all decisions of the Council of Ministers relating to
government policy. PM can also compel the resignation of a the administration of the affairs of the Union and
Minister. Thus, all ministers hold office at the discretion of the proposals for legislation;
Prime Minister. Prime Minister heads the cabinet and
• to furnish such information relating to the administration
summons its various meetings. PM can obtain dissolution of
of the affairs of the Union and
the Lok Sabha and resignation of PM amounts to resignation
of his Council of Ministers. • proposals for legislation as the President may call for; and
CABINET • to submit for the consideration of the Council of Ministers

any matter on which a decision has been taken by a
Prime Minister heads the cabinet which comprise of the most
Minister but which has not been considered by the
important ministers chosen by the Prime Minister. For the
Council.
sake of administration, various committees have been
constituted for better governance. The present government THE CONSTITUTIONAL LINK OF GOVERNOR WITH THE PM
has constituted six Committees of the Cabinet - & PRESIDENT -(A-78, A-355 & 356)
Appointments Committee of the Cabinet, Cabinet Committee It is the PM who keeps the fabric of Parliamentary form of
on Accommodation, Cabinet Committee on Economic Affairs, government in working order. PM has therefore been
Cabinet Committee on Parliamentary Affairs, Cabinet described as the keystone of the cabinet arch who is central
Committee on Political Affairs and Cabinet Committee on to its formation, life and its ultimate death. Thus, PM and his
Security. All committees except Accommodation Committee Council through Article 78 becomes the main link of
and Committee on Parliamentary Affairs is headed by the PM. communication between the President and Governors of
The cabinet decides major questions of policy and various state specially with respect to ensuring administration of the
53
affairs of the Union of India. With respect to emergency a hung parliament where no single party has a clear working
provisions, it becomes the duty of Centre under Article 355 majority in the House of Commons following a General
to ensure that state government functions under Election.
constitutional norms or to take appropriate action through
EXAMPLE:
the governor under Article 356.
• Janta Party 1977-1978 in the reign of PM Morarji Desai
• Article 355 imposes an obligation upon the Centre to
ensure that each state government is carried on in • National front of 1989 – 1991. National Front (NF) was a
accordance with the Constitution along with ensuring its coalition of political parties, led by the Janata Dal. The
protection from external aggression and internal coalition's Prime Minister was V. P. Singh later succeeded
disturbance. by Chandra Shekhar
• Article 355 in a way sanctions the governor to use Article • NDA in the rule of Prime Minister Atla Bihari Vajpayee. In
356 in case of breakdown of constitutional machinery in a India, the first coalition government to complete its full-
state. Article 356 also provides Centre the freedom to act term was the Atal Bihari Vajpayee-led National Democratic
even without Governor’s report in case of breakdown of Alliance from 1999 to 2004.
constitutional machinery in any state.
MERITS
• Thus, the dual function of the governor is at display when
• Ensures representation of regional parties: By far, the
he submits a report to the Centre on breakdown of
most largest advantage of coalition government at the
constitutional machinery.
centre is the proportionate representation of regional
Here, the governor of states acts as a representative of the
political parties in the LS. This ensures that they have a
Centre as he is appointed by the President of India (Article
voice in the decisions or proceedings of the court.
155) and takes a constitutional oath to preserve, protect
and defend the constitution under Article 159. • Undemocratic bills are opposed : Coalitions represent
the will of a broader section of the population thereby
Article – 356 If the President on receipt of report from
working as an effective tool to stave off passage of
Governor of a state or otherwise is satisfied that a situation
has arisen in which the Government of the State cannot be undemocratic bills which are not in the interests of the
carried on in accordance with Constitutional Provisions, the larger democracy
President may assume to himself • Decision making is more democratic : Since many of the
• all or any of the functions of the Government of the State coalition members do not share a common ideology, they
engage in widespread discourse regarding policy and
• all or any of the powers vested in or exercisable by the
decision making. This reflects the true essence of
Governor
democracy.
• declare that the powers of State Legislature are to be
exercised by Parliament • Prevents polarisation : Political alliances mean that
parties will have to compromise on radical ideologies and
• President may even suspend in whole or in part the
approaches to make decisions which are more in the
provision of the Constitution relating to any body or
interests of the people
authority in the State.
• Past political mistakes will not be repeated : When
However, President cannot assume to himself powers of High
diverse regional parties coalesce to form a union, they are
Court
able to concentrate on solution oriented decision making
and prevent repetition of political mistakes.
►COALITION GOVERNMENT: MERITS DEMERITS
AND DEMERITS Sometimes National interest is kept aside for accomplishing

regional interest. This happened when UPA government was
A coalition government forms when two/more political
in centre and it did not concluded water sharing agreement
parties form an alliance compromising on their concerned
with Bangladesh because West Bengal regional party was of
party policy and agenda. So coalition government is a
the view that it will hamper WB development.
government formed jointly by more than one political party.
Parties may decide to form a coalition government if there is
54
• Generally appeasement policies are considered rather ►OFFICE OF PROFIT: CONCEPT AND
developmental policy.
ISSUES
• An undemocratic and unelected coalition: Coalition is
made up of democratically elected representatives, but in An office of profit means a position that brings to the person
itself, it is a way to grab power regardless of the verdict of holding it some financial gain, or advantage, or benefit or
the electorate. perks apart from the public office which he/she currently
holds. Thus, to comprise office of profit, it has to be an
• Coalition creates political insecurities: Forming alliances
“office” under the appointment of government and the
is filled with challenges and each coalition member suffers
benefit, perks, salary, or any financial gain must be released
from insecurities regarding the alliance. Further, citizens
from public exchequer.
also cannot be sure when the coalition government will
give way and leave them in a state of political anarchy. CONSTITUTIONAL PROVISIONS
• Coalition politics impacts the power of the Centre: Article 102 disqualifies a member of either House of
Alliance between national and regional parties has Parliament if he holds any office of profit under the
impacted the relations between the Union and the States. Government of India or the Government of any State, other
While regional parties give stress to their state’s problems than an office declared by Parliament by law not to disqualify
and place pressure on coalition government to provide its holder. Article 103 provides that any question relating to
greater attention to these, the Centre tries to balance disqualification of a member on grounds of holding office of
regional interests in different states. This creates a lack of profit shall be referred for the decision of the President and
congruence in the functioning of the federal polity in India. his decision shall be final. However, before giving any
decision on any such question, the President shall obtain the
• Coalition symbolises political instability: Not one
opinion of the Election Commission and shall act according to
person thought about the coalition when India regained
such opinion. Similar provisions has been provided for a
freedom and the INC was the sole ruling party. With the
member of the Legislative Assembly or Legislative Council of
advent of the NDA in 1971, coalition politics in India gained
a State if he holds any office of profit under the Government
momentum. Now, with the regionalisation and
of India or the Government of any State under Article 191.
fragmentation of politics, coalitions have become an
Under Article 192, in case of question of disqualification of
unstable agreement in uncertain times, where there are
member of legislative assembly or council, the question shall
no political allies or enemies.
be referred for the decision of the Governor and his decision
• Coalition government is by compulsion: It is not an shall be final. Before giving any decision on any such
alliance formed by willing parties. Often, the parties in the question, the Governor shall obtain the opinion of the
coalition are at odds with each other on even basic issues. Election Commission and shall act according to such opinion.
This leads to a lot of political infighting apart from creating
LATEST REPORT ON OFFICE OF PROFIT
political compulsions for parties to compromise on their
ideals and values. The joint committee of Parliament on Office of Profit in two of
its latest reports has observed that the expression has not
• Outside support in a coalition can be withdrawn any
been defined in the Constitution, the Representation of the
time : Outside support is also a critical political quotient in People Act, Parliament (Prevention of disqualification) Act or
the entire equation. If outside support is withdrawn, the in any judgement delivered either by a high court or the
ruling party will not be able to govern and political Supreme Court. Thus, any case of office of profit has to be
instability will result. decided on case to case basis by the Courts and the Election
• Right policies cannot be implemented : As the ruling Commission. The case has to be interpreted based on the
party has to pander to the needs of regional parties, often facts and circumstances of each case and the relevant
right policies are prevented from being implemented. The statutory provisions. In Ashok Kumar Bhattacharya vs Ajoy
government becomes fragile and seeks to engage in Biswas, the Supreme Court held that to determine whether a
person holds an office under the Government, each case
decision making which is biased towards its political
must be measured and judged in the light of the relevant
survival rather than the welfare of the nation.
provisions and sections.
55
The Supreme Court of India in various judgments has held to functions, and which exceed those possessed by other bodies
refer to the following points in order to determine whether or individuals.
an office falls within the concept of Office of Profit: The objective was that the members should have the
• If the appointment has been made by government freedom to discharge their functions, including the right to
• If the government had the right to remove or dismiss speak and vote within Parliament, without the fear of being
those holding such office victimised.
• If the government pays the remuneration Some privileges rest solely on the law and custom of
Parliament, while others have been defined by statute.
• What are the functions of the office holder? Are these
Hereby discussing the privileges provided to the MPs and
functions any different from the one he/she already
legal status of it.
performs
PRIVILEGES PROVIDED TO THE MPS
• If the office holder perform these functions for the
government In the case of Raja Ram Pal v Hon’ble speaker defined the
term privilege as “A special right, advantage or benefit
• If the government exercises any control over the
conferred on a particular person. It is a peculiar advantage or
performance of those functions
favour granted to one person as against another to do
Supreme Court held that if answers to any of these questions certain acts”.
are in the affirmative, then the person concerned can be said
THE PRIVILEGES PROVIDED ARE
to be holding office of profit.
• Freedom of speech in Parliament (art. 105(1) of the
POWER OF ELECTION COMMISSION - RECENT CASE OF
constitution).
DELHI
• Immunity to a member from any proceeding in any court
It is mandatory for the President and the Governor to act
in respect of anything said or any vote given by him in
according to such opinion as provided by the Election
Parliament or any committee there of art (105(2) of the
Commission in case of disqualification on grounds of office of
Constitution).
profit. In a recent case of Delhi Legislative Assembly, the
Election Commission had recommended disqualification for • Immunity to a person from proceedings in any court in
some MLAs who were appointed as Parliamentary respect of the publication by or under the authority of
Secretaries. According to the Election Commission, the office either house of Parliament of any report, paper votes or
of Parliamentary Secretaries came within the purview of proceedings (art 105(2) of constitution).
office of profit.The recommendation of Election Commission • Prohibition on the courts to inquire into proceedings of
was communicated to the Hon’ble President of India who has Parliament (art 122 of Constitution).
accordingly decided to disqualify these 20 MLAs of Aam • Freedom from arrest of members in civil cases during the
Aadmi Party. However, the Court has decided otherwise on continuance of the session of the house and 40 days
the issue. As per Delhi Members of Legislative Assembly before its commencement and 40 days after its conclusion
(Removal of Disqualification) Act, 1997, before giving any (section 135 A code of civil procedure).
decision on any such question, the President shall obtain the
• Right of the house to receive immediate information of the
opinion of the Election Commission and shall act according to
arrest, detention, convention, imprisonment and release of
such opinion. Thus, it becomes mandatory for the President
a member (Rules 229 and 230 of the Rules of procedure
to act according to opinion of Election Commission with
and conducts of Business in Lok Sabha).
respect to disqualification for holding office of profit.
• Prohibition of arrest and service of legal process within the
precincts of the house without obtaining the permission of
►PRIVILEGES OF THE PARLIAMENT speaker (rules 229 and 230 of the Rules of procedure and
conduct of Business in Lok Sabha).
Parliamentary privilege is the sum of certain rights enjoyed by
each House collectively... and by members of each House • Prohibition of disclosure of the proceedings or decisions of
individually, without which they could not discharge their a secret setting of the house (rule 252 of the rules of
procedure and conduct of Business in Lok Sabha).
56
• Members or officers of the house are not to give evidence • Giving any misleading statement in the house
or produce documents in courts of law relating to the • Any disruption created by shouting slogans or throwing
proceedings of the house without the permission of the leaflets etc. with the purpose of disturbing the proceedings
house. of the court is regarded as a major contempt by the house.
• Members or officers of the house are not to attend as • Any kind of assault on the member
witnesses before the other house or a committee thereof
• Writings or speeches about the character of the member
or before a house of state legislature or a committee there
of without the permission of the house and they cannot be So, clearly, any attack on the privilege of the members by any
compelled to do so without their consent. means is considered as a breach of the privilege and the
parliament can take action regarding the same.
• All Parliamentary Committees are empowered to send for
persons, papers, and records relevant for the purpose of PUNISHMENTS PRESCRIBED FOR BREACH OF PRIVILEGES
the inquiry by a committee. A witness may be summoned OR CONTEMPT OF THE HOUSE
by a Parliamentary committee who may be required to • Imprisonment – If the breach committed is of a grave
produce such documents as are required for the use of a nature the, punishment can be given in the form of the
committee (Rules 269 and 270 of the rules of procedure imprisonment of any member or person.
and conduct of Business in Lok-Sabha.
• Imposing fine – If in the view of the parliament, the
• A Parliamentary committee may administer Oath or breach or contempt committed is of economic offence and
affirmation to witness examined before it (Rules 272 of the any pecuniary gain has been made from the breach then,
rules of procedure and conduct of Business in Lok-Sabha). the parliament can impose fine on the person.
• The evidence tendered before a Parliamentary committee • Prosecuting the offenders – The parliament can also
and its report and proceedings cannot be disclosed or prosecute the one committing the breach.
published by anyone until these have been laid on the
• Punishment given to its own members – If any
table of the house (Rule 275 of the rules of procedure and
contempt is committed by the members of the parliament
conduct of business in Lok Sabha).
then, he is to be punished by the house itself which could
In addition to above mentioned privileges, immunities each also result in the suspension of the member from the
house also enjoys certain consequential powers necessary house.
for the protection of its privileges and immunities these
In 2008, an editor of an Urdu weekly referred to the deputy
powers are as follows.
chairman of Rajya Sabha as a "coward" attributing motives to
• To commit persons, whether they are members or not, for a decision taken by him. The privileges committee held the
breach of privilege or contempt of the house. editor guilty of breach of privilege. The committee instead of
• To compel the attendance of witness and to send for recommending punishment stated that, “it would be better if
papers and records. the House saves its own dignity by not giving undue
importance to such irresponsible articles published with the
• To regulate its own procedure and the conduct of its
sole intention of gaining cheap publicity.”
business (Art 118 of the constitution).
SHOULD THERE BE CODIFICATION OF THE
• To prohibit the publication of its debates and proceedings
PARLIAMENTARY PRIVILEGES?
(Rule 249 of the rules of procedure and conduct of
Business in Lok-Sabha). • Our Indian parliamentarians enjoys supreme powers as
being a member of the parliament. There is also misuse of
• To exclude strangers from the house (Rule 248 of the rules
the privileges given to them because they do not have
of procedure and conduct of business in Lok-Sabha).
many restrictions on the rights. They have the power to be
WHAT CONSTITUTES PARLIAMENTARY BREACH OR the judge of their own proceedings, regulate their
CONTEMPT OF THE HOUSE? proceedings, what constitutes the breach and what
There is no codification to clearly state that what action punishment should be given for the breach, are solely
constitutes a breach and what punishment it entails. Some of decided by them.
them are briefly discussed:
57
• The power vested in them is too wide as compared to the • The Indian judiciary has been vested with the responsibility
fundamental rights vested in the citizens. With no of the protection of the fundamental rights. Parliament
codification of the privileges, they have gained an members claim absolute sovereignty over their powers
undefined power because there is no expressed provision and in any case does not want the judiciary to interfere.
to state the limitations on their powers. The privilege from But, the judiciary is regarded as the guardian of our
any civil arrest 40 days before and after the session and Constitution and it cannot sit quietly if any fundamental
during the session results that they are exempted from right of a citizen is violated due to privileges or when there
arrest for even more than 365 days. No comprehensive is an escape from any criminal liability.
law has been till date enacted by the parliament for the • The judiciary has to take a stand on the wrongs committed
codification of the parliamentary privileges. by the members who are taking the shelter of the
• It is mostly resisted by the members because then it will be privileges. The Supreme Court in Keshav Singh’s case
subject to the fundamental rights and would be in the observed that the privileges conferred on the members
purview of judicial review. Justice M.N. Venkatachaliah are subject to the fundamental rights.
heading the Constitution Review Commission also • The Supreme Court has also held that any conflict arising
recommended to define and delimit the privileges for the between the privileges and the fundamental rights would
free and independent functioning of the legislature. This is be resolved by adopting harmonious construction. The
based on the apprehension that codification will involve judiciary is very well aware of the fact that it does not have
interference of the court as the matters would be jurisdiction over parliamentary matters but it is necessary
presented in the court of law. for the society that any violation should be resolved by the
• Non-codification of privileges has led to greater powers court as it deems fit.
being enjoyed by the members. But, now the time has COMMITTEE ON PRIVILEGES
come to codify and define the privileges and actions must
• A 15-member committee nominated by the Lok Sabha
be taken so that there is smooth functioning of the
Speaker examines every issue involving breach of privilege
parliament without any conflict.
of the House upon reference by the Speaker, and makes
There are moves to codify the privileges in some other requisite recommendations.
parliamentary democracies. Australia enacted its
• In Rajya Sabha, the Chairman shall nominate a Committee
Parliamentary Privileges Act in 1987. It prescribes a maximum
of Privileges consisting of 10- Members.
penalty of one year imprisonment and fine of A$5,000. The
Australian legislation prohibits the expulsion of any member • The Privilege Committee has the power to take evidence or
from membership of the House. Also, it abolishes contempt call for papers, records or documents including attendance
by defamation. of persons.
IS JUDICIAL REVIEW OF THE PARLIAMENTARY PRIVILEGES • The Committee shall present its report to the
ALLOWED? Speaker/Chairman in respective Houses of Parliament.
SPICE APPROACH
Social dimension
Political/Legal Parliamentary privilege is designed to remove any impediments or restraints to the legislature going
about its work, and to enable it to deal with challenges to its authority. Parliamentary privilege has
Dimension
been justified in law on the grounds that a legislature must enjoy freedom from control by the Crown
and the courts (an aspect of the constitutional separation of powers); that it must possess certain
powers to facilitate the carrying out of its functions; and that it, its members and others participating
in its proceedings must enjoy certain immunities for the legislature to discharge its functions
effectively.
The privileges that a legislature enjoys are not an end in themselves; they form part of a
constitutional expression of parliamentary autonomy and are a means to achieving an end—an
58
effectively functioning legislature able to operate in the public interest.
Institutional Committee of Privileges has been set up to examine every question involving breach of privilege of
dimension the House or of the members or of any Committee thereof referred to it by the House or by the
Speaker. Also to determine with reference to the facts of each case whether a breach of privilege is
involved and make suitable recommendations in its report.
Cultural dimension
Economic
dimension
►RELEVANCE OF RAJYA SABHA Private Member's Bill. The procedure for the passage of
the Bills is similar in both the cases.
Rajya Sabha is the upper house of India’s bicameral
• A Bill has to pass through three stages in each House of
legislature.The Rajya Sabha may have a maximum of 250
Parliament and receive Presidential assent before it
members, most of whom are elected to six-year terms by the
becomes an Act of Parliament.
legislative assemblies of the states and the union territories;
12 are nominated by the president of India. • In the event of a deadlock between the two Houses on a
Bill other than a Money Bill or a Constitution Amendment
The deadlock between Lok sabha and Rajya sabha has
Bill, the issue is resolved at a joint sitting of the two
increased in past few years. Hereby discussing the relevance
Houses.
of Rajya Sabha.
B. Financial Functions
FUNCTIONS OF THE RAJYA SABHA
• The Annual Budget of the Government is laid before Rajya
The functions of Rajya Sabha may broadly be categorised as:
Legislative, Financial, Deliberative and Federal. Sabha also, although the Budget speech is made in Lok
Sabha only. Rajya Sabha has no powers to vote on the
A. Legislative Functions
Demands for Grants of the Ministries/Departments which
• The Constitution has classified the subjects for legislation is the exclusive domain of Lok Sabha. However, the
into three Lists, namely (1) the Union List, (2) the State List twenty-four Department-related Parliamentary Standing
and (3) the Concurrent List. The Union List includes those
Committees which have thirty-one members, ten from
subjects over which Parliament has exclusive authority to
Rajya Sabha and twenty-one from Lok Sabha,
make laws, while the Concurrent List enumerates those
examine the Demands for Grants of the respective
subjects over which it has authority along with the States.
Ministries/Departments of the Government of India.
• Even in regard to the State List, over which the States have
C. Deliberative Functions
exclusive jurisdiction, Parliament can assume authority, if
(1) Rajya Sabha declares by a resolution supported by not • One of the important functions of Rajya Sabha is to focus
less than two-thirds of the members present and voting public attention on major problems affecting policies of
that such legislation is in national interest, or (2) two or the Government and administration and to provide a
more States mutually agree that Parliament may do so, or forum for ventilation of public grievances. This
(3) it is necessary to implement treaties or international responsibility is discharged through deliberations on
conventions. Further, when a Proclamation of Emergency General Budget, Railway Budget, Motion of Thanks on the
is in operation, Parliament is competent to legislate on President's Address and working of various
matters included in the State List. Ministries/Departments and on various policy statements
• A Bill can be introduced in either House of Parliament. A made by the Government. Rajya Sabha also places its
Bill introduced by the Minister is known as Government Bill views on various international issues.
and a Bill introduced by a private member is known as D. Federal Functions
59
• If Rajya Sabha passes a resolution by a majority of not less • Legislatures, the world over, are grappling with increasing
than two-thirds of the members present and voting demand to legislate on newer areas. The Second
declaring that it is necessary or expedient in the national Chambers have, therefore, become much more useful in
interest to create one or more All India Services common sharing the burden of the Lower Chambers.
to the Union and the States, Parliament may then by • A Second Chamber provides more opportunities for
law provide for the creation of such service or services. scrutiny and creates an enabling atmosphere for securing
• Under the Constitution, the President is empowered greater executive accountability. It complements the First
to issue Proclamations in the event of national Chamber in more ways than one.
emergency, in the event of failure of constitutional • A Second Chamber can hold debates on matters of wide
machinery in a State, or in the case of financial ranging public issues which otherwise may not be held in a
emergency. Normally, every such Proclamation has to single chamber. It also has the advantage of having some
beapproved by both Houses of Parliament within a people who have excelled in different areas of life and who
stipulated period. Under certain circumstances, however, may not like to face the rough and tumble of the electoral
Rajya Sabha enjoys special powers in this regard. If a politics. Such Members participate in the debates with an
amount of authority and learning.
Proclamation is issued at a time when Lok Sabha has been
dissolved or the dissolution of Lok Sabha takes place • In a federation, a Second Chamber can give representation
within the period allowed for its approval, then the to the component units. It can legitimately hold itself as
Proclamation can remain effective if, a resolution the guardians of the state-interests in a federal polity.
approving it is passed by Rajya Sabha. • The structure and the electoral process of the RS have
RELEVANCE OF RAJYA SABHA been deliberately designed to provide the necessary
checks and balance on the powers of the central
• A Second Chamber facilitates a second look at legislations
government. Both temporal and spatial dominance are
that may sometimes be the result of purely political
important to gain a majority in the Upper House. The
compulsions of the ruling majority in the popular House.
electoral composition of and the nature of elections to the
Also, a two-house legislative body allows scope for more
RS makes it virtually impossible for any political party to
talent and expertise and, therefore, wider scrutiny of
have a majority in the Rajya Sabha.
legislative proposals. In other words, the Second Chamber
acts as a check on hasty and ill-conceived legislations.
SPICE APPROACH
Social dimension
• Article 80 of the Constitution deals with composition of the Council of States.
• Article 80(3) provides that members nominated by the President shall consist of persons having
special knowledge or practical experience in respect of such matters as literature, science, art and
social service.
• The allocation of seats to be filled by representatives of States and the Union territories is laid
Political/Legal
down in the Fourth Schedule to the Constitution.
Dimension
• The representatives of each State in the Council of States are elected by the elected members of
the Legislative Assemblies of the respective States in accordance with the system of proportional
representation by means of the single transferable vote.
• The representatives of the Union territories in the Council of States are chosen in such manner as
Parliament may, by law, prescribe.
60
• Part IVA of the Representation of the People Act, 1950, provides for the manner of filling seats in
the Rajya Sabha allocated to Union territories.
• The actual strength of Rajya Sabha, at present, is two hundred and forty-five. The Rajya Sabha is a
permanent body and is not subject to dissolution.
• However, one-third of its members retire biennially. A member who is elected for a full term
retains his membership for six years. He is eligible for re-election.
• The Vice-President of India is the ex-officio Chairman of the Rajya Sabha. He/she presides over
the meetings of Rajya Sabha.
• In his absence the Deputy Chairman, who is elected by its members from amongst themselves,
presides over the meeting of the House.
Institutional
• The Deputy Chairman can be removed by a majority of all the then members of Rajya Sabha. But
dimension
the Chairman (Vice-President) can only be removed from his office by a resolution passed by a
majority of all the then members of Rajya Sabha and agreed to by the Lok Sabha.
• As the Vice-President is an ex-officio Chairman and not a member of Rajya Sabha, he/ she is
normally not entitled to vote. He/she can vote only in case of a tie.
Cultural dimension
Economic
dimension
►STRENGTHENING OF COMMITTEE suggest measures to improve efficiency in spending and

performance of Public Sector Undertakings.
SYSTEM IN PARLIAMENT
• The Select Committee is formed for analyzing a specific
In all Parliamentary democracies, Parliamentary Committees legislation/policy and is disbanded after submission of its
play a pivotal role in ensuring accountability of the Executive. reports.
Unlike political groups, committees are recognised in the
• The Administrative Committees are primarily
rules of procedure of all Parliaments.
responsible for ensuring day-to-day activities of the
The growing range of matters with which Parliament is legislature are planned in consultation with the members.
concerned has led to the steady development of
Members from both Houses across party lines are
Parliamentary Committees, until today they are essential to
represented in most of these committees. Since ministers are
the efficient despatch of parliamentary business.
part of the executive and legislature is a separate arm to keep
Hereby discussing the functioning of Parliamentary a check on the executive, ministers are not a part of any
committees, lacunas in their functioning and reforms needed. Standing Committees.
TYPES OF PARLIAMENTARY COMMITTEES
ABOUT JOINT PARLIAMENTARY COMMITTEE
• The Standing Committees (DRSC), aligned with specific
• The JPC is set up for a given period of time and is aimed at
ministries examine their performance and budgets apart
addressing a specific issue. Joint committees are set up by
from bills or subjects related to their respective ministries.
a motion passed in one house of Parliament and agreed to
• The Financial Committees are primarily responsible for by the other.
scrutinizing the expenditure priorities of the government,
• The details regarding membership and subjects are also
decided by Parliament.
61
• A JPC is authorised to collect evidence in oral or written • The Committees are not meant to weaken the
form or demand documents in connection with the matter administration, instead they prevent misuse of power
which is being investigated. exercisable by the Executive.
• A JPC can obtain evidence of experts, public bodies, ISSUES IN THE COMMITTEE SYSTEM
associations, individuals or interested parties suo motu or While the Standing Committees have improved the
on requests made by them. Parliament’s ability to examine policies better, there are
• If a witness fails to appear before a JPC in response to several challenges that need further attention.
summons, his conduct constitutes Contempt of the House. a) Fewer bills referred: To strengthen the lawmaking
• The proceedings and findings of the committee are process, it is important that all bills are examined by
confidential, except in matters of public interest. The Standing Committees before passage. This ensures
government can take the decision to withhold a document thorough scrutiny of the law. This practice is seen in
if it is considered prejudicial to the safety or interest of the legislatures of most developed countries.
State. In India, there is no such rule to ensure all bills are
• The Speaker has the final word in case of a dispute over referred to committees. As a convention, the ministry
calling for evidence. piloting the bill recommends the Speaker to refer a bill to
the Standing Committee.
• JPC recommendations have persuasive value but the
committee cannot force the government to take any action The 14th and 15th Lok Sabha saw 60 percent and 71
on the basis of the report. percent of bills referred to committees. This number has
dipped sharply to just 27 percent in the 16th Lok Sabha.
• The government may decide to launch fresh investigations
The attendance of members in committee meetings has
on the basis of a JPC report. However, the discretion to do
been a cause for concern as well, which is about 50
so rests entirely with the government.
percent since 2014-15.
• The government is required to report on the follow-up
b) Longer tenure for members: The committee system
action taken on the basis of the recommendations of the
allows a smaller group of legislators to develop technical
JPC and other committees.
expertise on a particular subject and ensure better
ROLE OF PARLIAMENTARY COMMITTEES deliberation. In the present format, the members are
• Parliamentary Committees play a vital role in the nominated to a Standing Committee for one year.
Parliamentary System. They are a vibrant link between the However, shifting of committees every year defeats this
Parliament, the Executive and the general public. purpose. The vice-president, as chairman of the Rajya
Sabha, recently emphasised on the need to extend
• The need for Committees arises out of two factors, the first
the tenure of committee members.
one being the need for vigilance on the part of the
Legislature over the actions of the Executive, while the c) Discussion of committee reports: The committees make
second one is that the modern Legislature these days is several recommendations in their reports after thorough
over-burdened with heavy volume of work with limited analysis and feedback from stakeholders. Since these are
time at its disposal. recommendatory in nature, the executive may not
necessarily accept them. Moreover, the reports of the
• It thus becomes impossible that every matter should be
committees are not taken up for discussion in Parliament
thoroughly and systematically scrutinised and considered
except for references in certain debates on bills. Several of
on the floor of the House.
committee’s recommendations are neither implemented
• The Committees aid and assist the Legislature in
nor discussed.
discharging its duties and regulating its functions
d) Research Support: Committees examine issues that are
effectively, expeditiously and efficiently. Through
technical in nature. To equip members to gain an in-depth
Committees, Parliament exercises its control and influence
understanding of issues and finally give sound and
over administration. Parliamentary Committees have a
nuanced recommendations, it is important that quality
salutary effect on the Executive.
research is made available to them. Institutional research
62
support will allow committees to serve as expert bodies to • In several countries, the concerned minister appears
examine complex policy issues. before the committee to elaborate and defend the policies
WAY FORWARD of the government. In India, ministers don’t appear before
the committees but other functionaries do.
• There are existing practices in other countries that can
contribute to strengthening the committee system in India. • Strengthening the committee system can go a long way in
For example, in the British House of Commons, the improving the quality of laws drafted and minimise
committees interact on certain overlapping subjects. potential implementation challenges.
Committees related to defence, foreign affairs, • The need of the hour is for greater and effective utilisation
international development, and trade & industry form the of Parliamentary Committees to strengthen Parliament as
Quadripartite Committee which examines government’s a deliberative body which can ensure effective oversight.
arms export licenses.
SPICE APPROACH
Social dimension
• Standing Committees are permanent and regular committees which are constituted from time
to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and
Conduct of Business in Lok Sabha. The work of these Committees is of continuous nature.
Political/Legal • The Financial Committees, DRSCs and some other Committees come under the category of
Dimension Standing Committees.
• Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish
the task assigned to them and submit a report. The principal Ad hoc Committees are the Select
and Joint Committees on Bills.
• They are a vibrant link between the Parliament, the Executive and the general public. The need
for Committees arises out of two factors, the first one being the need for vigilance on the part of
the Legislature over the actions of the Executive, while the second one is that the modern
Institutional
Legislature these days is over-burdened with heavy volume of work with limited time at its
dimension disposal. It thus becomes impossible that every matter should be thoroughly and systematically
scrutinised and considered on the floor of the House.
• Hence parliamentary committees help in smooth functioning of the Parliament
Cultural dimension
• Parliamentary committees help in scrutiny of economics and functioning of the government.

• Committee on Estimates report what economies, improvements in organisation, efficiency, or
administrative reform, consistent with the policy underlying the estimates may be effected and
to suggest alternative policies in order to bring about efficiency and economy in administration.
• Committee on Public Undertakings are—(a) to examine the reports and accounts of Public
Economic dimension Undertakings; (b) to examine the reports, if any, of the Comptroller and Auditor General on the
Public Undertakings; (c) to examine in the context of the autonomy and efficiency of the Public
Undertakings whether the affairs of the Public Undertakings are being managed in accordance
with sound business principles and prudent commercial practices
• Committee on Public Accounts duty is to ascertain whether the money granted by Parliament
has been spent by Government "within the scope of the Demand". The Appropriation Accounts
of the Government of India and the Audit Reports presented by the Comptroller and Auditor
63
General mainly form the basis for the examination of the Committee.
►ANTI-DEFECTION LAW the High Court and Supreme Court. However, it held that
there may not be any judicial intervention until the
Anti-Defection Law is contained in the Tenth Schedule of the Presiding Officer gives his order.
Constitution, which was introduced by the 52nd Amendment
• In 2015, the Hyderabad High Court, refused to intervene
in 1985.
after hearing a petition which alleged that there had been
Defection is defined as “to abandon a position or association, delay by the Telangana Assembly Speaker in acting against
often to join an opposing group” which essentially describes a a member under the anti-defection law.
situation when a member of a particular party abandons his
IS THERE A TIME LIMIT WITHIN WHICH THE PRESIDING
loyalty towards that party and provide his support (in the
OFFICER HAS TO DECIDE?
form of his vote or otherwise) to another party. Articles 102(2)
and 191(2) of the Constitution deal with anti-defection. The • The law does not specify a time-period for the Presiding
intention of the provision is to check the corruption/horse Officer to decide on a disqualification plea. Given that
trading in parliament/ to check the popular phenomenon courts can intervene only after the Presiding Officer has
“Aaya Ram Gaya Ram” in the Indian polity which started in decided on the matter, the petitioner seeking
1960’s. disqualification has no option but to wait for this decision
to be made.
Hereby discussing the grounds for disqualification and issues
related to it. • There have been several cases where the Courts have
expressed concern about the unnecessary delay in
GROUNDS FOR DISQUALIFICATION
deciding such petitions. In some cases this delay in
• If an elected member voluntarily gives up his membership decision making has resulted in members, who have
of a political party; defected from their parties, continuing to be members of
• If he votes or abstains from voting in such House contrary the House.
to any direction issued by his political party or anyone • There have also been instances where opposition
authorised to do so, without obtaining prior permission. members have been appointed ministers in the
• It also applies to a nominated member if he/ she joins a government while still retaining the membership of their
political party after 6 months of nomination and to an original parties in the legislature.
independent candidate if he/she joins a party after the • In recent years, opposition MLAs in some states, such as
election. Andhra Pradesh and Telangana, have broken away in small
The phrase ‘Voluntarily gives up his membership’ has a wider groups gradually to join the ruling party. In some of these
connotation than resignation cases, more than 2/3rd of the opposition has defected to
• The law provides for a member to be disqualified if he the ruling party.
‘voluntarily gives up his membership’. • In these scenarios, the MLAs were subject to
• However, the Supreme Court has interpreted that in the disqualification while defecting to the ruling party in
absence of a formal resignation by the member, the giving smaller groups. However, it is not clear if they will still face
up of membership can be inferred by his conduct. disqualification if the Presiding Officer makes a decision
after more than 2/3rd of the opposition has defected to the
• In other judgments, members who have publicly
ruling party. The Telangana Speaker in March 2016
expressed opposition to their party or support for another
allowed the merger of the TDP Legislature Party in
party were deemed to have resigned.
Telangana with the ruling TRS, citing that in total, 80% of
Decision of the Presiding Officer is subject to judicial review the TDP MLAs (12 out of 15) had joined the TRS at the time
• The law initially stated that the decision of the Presiding of taking the decision.
Officer is not subject to judicial review. This condition was • In Andhra Pradesh, legislators of the main opposition party
struck down by the Supreme Court in 1992, thereby recently boycotted the entire 12-day assembly session.
allowing appeals against the Presiding Officer’s decision in This boycott was in protest against the delay of over 18
64
months in action being taken against legislators of their • Injustice to the Constituencies: those have elected them
party who have allegedly defected to the ruling party. The in the elections. Being the people’s representatives they
Vice President, in his recent order disqualifying two JD(U) should be allowed to boldly air their grievances and speak
members stated that all such petitions should be decided up for their constituencies’ requirements.
by the Presiding Officers within a period of around three • Against the idea of Constitutional forefathers: though
months. this issue was deeply discussed and analysed by the
DOES THE ANTI-DEFECTION LAW AFFECT THE ABILITY OF framers/Constituent Assembly. Constitution drafters didn’t
LEGISLATORS TO MAKE DECISIONS? intend to give the control of members to political parties.
• However the law itself has become a cause of concern in Interestingly, it’s only in the 10th schedule, which was
today’s political meddling and rightfully voicing genuine included in 1985 that political parties are mentioned in
concerns by the members of Parliament. constitution.
• The anti-defection law seeks to provide a stable • Limited deliberations: have indeed reduced the quality of
government by ensuring the legislators do not switch Parliamentary debates/deliberations. It could in the long
sides. However, this law also restricts a legislator from run generate faulty legislations with various loopholes. It
voting in line with his conscience, judgement and interests could also pave way for delegated legislation rendering
of his electorate. Such a situation impedes the oversight Parliament ineffective in the long run.
function of the legislature over the government, by • No incentive for MPs/MLAs to research and understand on
ensuring that members vote based on the decisions taken policies.
by the party leadership, and not what their constituents • Misuse of law by the speaker: in order to stifle genuine
would like them to vote for. dissent as seen in the cases of Arunachal Pradesh and
Some of them include: Uttarakhand.
• Affects independence of the MPs: as they are required to
strictly abide by the party whips’ directions.
RECOMMENDATIONS OF VARIOUS BODIES ON ANTI-DEFECTION LAW
BODY/
MAIN REFORMS SUGGESTED/ RECOMMENDED
COMMITTEE
• Disqualification should be limited to cases where (a) a member voluntarily gives up the
Dinesh Goswami
membership of his political party, (b) a member abstains from voting, or votes contrary to the
Committee on
party whip in a motion of vote of confidence or motion of no-confidence.
electoral reforms
• The issue of disqualification should be decided by the President/ Governor on the advice of the
(1990)
Election Commission.
• The words 'voluntarily giving up membership of a political party' be comprehensively defined.

Halim Committee on
Restrictions like prohibition on joining another party or holding offices in the government be
anti-defection law
imposed on expelled members.
(1998)
• The term political party should be defined clearly.
• Provisions which exempt splits and mergers from disqualification to be deleted.

Law Commission
• Pre-poll electoral fronts should be treated as political parties under anti-defection law.
(170th Report, 1999)
• Political parties should limit issuance of whips to instances only when the government is in danger.
Election Commission • Decisions under the Tenth Schedule should be made by the President/ Governor on the binding
Constitution Review advice of the Election Commission.
65
Commission (2002) • Defectors should be barred from holding public office or any remunerative political post for the
duration of the remaining term.
• The vote cast by a defector to topple a government should be treated as invalid.
The spirit behind the X schedule needs to be respected in letter and in spirit and adequate safeguards to be put in place so as to
not misuse this provision under the Constitution.
SPICE APPROACH
• Defection law was introduced in the country in order to check the rampant practice of
parliamentarians abandoning their original parties to join rival political groups. The need to check
this mischief was heightened by the fact that defection was being used as a weapon to engineer
Social dimension the toppling and creation of governments.
• Anti-defection law was thus seen as a reaffirmation of India’s democratic ideals by ensuring that
only citizens have a say in government making.
• It was introduced to maintain rule of law, reduced political corruption and bribery.
• The anti-defection law, added to the Constitution as the Tenth Schedule by the 52nd amendment
in 1985, makes it mandatory that two-thirds of the strength of a party should agree for a ‘merger’.
Political/Legal
• A legislator can be disqualified under the anti-defection law if he either voluntarily gives up the
Dimension
membership of his party or disobeys the directives of the party leadership on a vote. He is then
disqualified.
• As per Rule 6 of the schedule, the Speaker of the House or the Chairman has been given wide and
absolute powers to decide the case related to disqualification of the members on the grounds of
defection.
Institutional
• The Speaker still remains as the member of the party which had nominated him/her for the post
dimension
of speaker, hence the rules can be misused.
• The other major criticisms of this power is that not necessary the speaker has legal knowledge and
expertise to look upon and perform such acts in such cases.
• This provision restricts individual decision-making and mandates a faithful adherence to the
directions of the party whip. By curtailing a parliamentarian’s discretion in voting, this provision
has effectively mitigated the need for debate in Parliament. An obvious corollary of encumbered
Cultural dimension voting is that the law has negatived any scope for expressing dissent in the House.
• In order for a parliamentarian to effectively fulfil his functions, he must have the right to vote
according to his conscience and not be tied to his party lines.
• Hence this provision has created a yesmanship culture.
• Anti-defection law was brought to curb the power of money after election within the house. The
horse trading and unstable government caused by money power and bribery was said to be
rampant in the cross voting.
Economic • It has been succeeded in reducing the money power within house voting for passing legislation
dimension and the survival of government. The money power remains in play after election process,
especially in the case of coalition government to get favorable voting from alliance partners.
• Money power, probably with larger amount than in the earlier system, is paid directly to the high
command than to individual members to get favorable voting in the parliament.
66
►POWERS OF SPEAKER WITH ο any matter incidental to any of the matters specified in
sub-clauses (a) to (f).
RESPECT TO MONEY BILL
• The term “incidental” in article 110(1) (g) of the
• A Bill is a proposal for a new law, or a proposal to change Constitution has wide implications. It is comprehensive
an existing law that is presented for debate enough to include not merely the rates, area and field of
before Parliament. The types of Bills are: tax, but also complete machinery for assessment, appeals,
ο Constitution Amendment Bills: These are Bills which revisions, etc.
seek to amend the Constitution. • It is in this light that Finance Bills which, in addition to rates
ο Money Bills: A Bill is said to be a Money Bill if of taxation, contain provisions regarding machinery for
it only contains provisions related to taxation, borrowing collection, etc. are certified as Money Bills. Similarly, a Bill
of money by the government, expenditure from or seeking to amend or consolidate the law relating to
receipt to the Consolidated Fund of India. Bills that only Income-tax is treated as a Money Bill.
contain provisions that are incidental to these matters CERTIFICATION OF MONEY BILLS
would also be regarded as Money Bills.
• A Money Bill can be introduced in Lok Sabha only. If any
ο Financial Bills: A Bill that contains some provisions question arises whether a Bill is a Money Bill or not, the
related to taxation and expenditure, and additionally decision of Speaker thereon is final.
contains provisions related to any other matter is called
• The Speaker is under no obligation to consult any one in
a Financial Bill. Therefore, if a Bill merely involves
coming to a decision or in giving certificate that a Bill is a
expenditure by the government, and addresses other
Money Bill.
issues, it will be a financial bill.
• The Speaker’s certificate on a Money Bill once given is final
ο Ordinary Bills: All other Bills are called ordinary bills.
and cannot be challenged.
WHAT IS MONEY BILL?
HENCE QUESTION ARISES WHETHER DECISION OF SPEAKER
• Under article 110(1) of the Constitution, a Bill is deemed to IS SUBJECT TO JUDICIAL REVIEW OR NOT?
be a Money Bill if it contains only provisions dealing with
• Article 110(1), grants to the Lok Sabha Speaker the
all or any of the following matters, namely:
authority to certify a draft law as a money bill so long as
ο the imposition, abolition, remission, alteration or such legislation deals only with all or any of the matters
regulation of any tax; specifically listed in the provision.
ο the regulation of the borrowing of money or the giving • These include subjects such as the imposition or abolition
of any guarantee by the Government of India, or the of a tax, the declaring of any expenditure to be
amendment of the law with respect to any financial expenditure charged on the Consolidated Fund of India,
obligations undertaken or to be undertaken by the and, significantly, also any matter otherwise incidental to
Government of India; the subjects specified in Article 110. The ensuing clause
ο the custody of the Consolidated Fund or the clarifies that a draft law will not be a money bill for the
Contingency Fund of India, the payment of moneys into reason that it also provides for the imposition or abolition
or the withdrawal of moneys from any such fund; of a tax.
ο the appropriation of moneys out of the Consolidated • In other words, substantive laws, which are not merely
Fund of India; incidental to the subjects enlisted in Article 110(1) cannot
be finagled into a bill that also happens to contain taxing
ο the declaring of any expenditure to be expenditure
rules. It is precisely such trickery that the petitioners
charged on the Consolidated Fund of India or the
contended the Finance Act of 2017 indulges in.
increasing of the amount of any such expenditure;
• The Union government, for its part, argued that the
ο the receipt of money on account of the Consolidated
Speaker of the Lok Sabha was not only correct in making
Fund of India or the public account of India or the
the classification, but that, in any event, her decision was
custody or issue of such money or the audit of the
beyond judicial review.
accounts of the Union or of a State; or
67
• To this end, the government relied on Article 110(3), which Speaker, Lok Sabha, the Supreme Court held that the
states that in cases where a dispute arises over whether a while the Court may not review procedural irregularities in
bill is a money bill or not, the Speaker’s decision shall be parliamentary proceedings as per Article 122, the Article
considered final. doesn’t exempt review on other grounds. Thus, judicial
SC JUDGES review is possible on other grounds, in particular,
substantive illegality and unconstitutionality. This includes
• The Court in Mohd. Saeed Siddiqui v State of UP justified
reviewing even the decision of the Speaker.
non-interference with Speaker’s certification by stating
that, “…the decision of the Speaker of the Legislative Assembly The certification of a bill as a money bill is not just a matter of
that the Bill in question was a ‘money bill’ is final and the said procedure in Parliament, the Court observed. If any illegality
decision cannot be disputed nor can the procedure of the was detected and if the decision had breached constitutional
state legislature be questioned by virtue of Article 212”. provisions, then the decision (of the Speaker) is subject to
judicial review.
• In Yogendra Kumar Jaiswal v State of Bihar, the Supreme
Court again following Mohd. Saeed’s case, reiterated that Hence in classifying a draft law as a money bill, therefore,
certification as to whether a Bill is Money Bill or not cannot speaker decision should be demonstrably justifiable.
be judicially reviewable.
• In cases such as the Special Reference No. 1 of 1964, as
well as the 2007 judgment in Raja Ram Pal v.
SPICE APPROACH
Social dimension
Political/Legal Money bills are meant to clear government expenses and taxation and are placed in the Lok Sabha,
instead of greater debate in and scrutiny by both houses of Parliament.
Dimension
Over the years, it appears that the Lok Sabha has favoured the use of money bills; 21% more
money bills were passed than ordinary bills between May 2004 and September 2018--indicating
that bills have been introduced and passed solely by the Lok Sabha (Rajya Sabha can only discuss
money bills, but does not need to pass them).
Example: Adhaar bill, incorporation of Electoral bonds in the Representation of Peoples Act, 1951,
and the Reserve Bank of India Act, 1934.
Institutional The passage of Bills as Money bills - impact the democratic and federal structure of the
dimension Constitution, and reduce the Rajya Sabha to but a namesake feature of the legislative process.
Cultural dimension As a federal chamber, Rajya Sabha has to work for the unity and integrity of the nation and
reinforce the faith of the people in parliamentary democracy. Hence surpassing Rajya Sabha for
passage of bill dilutes the core principles of the democracy.
Economic dimension
►ISSUE OF LG AND CM IN STATES Administrator of Chandigarh. The Administrator of Dadra and

Nagar Haveli is concurrently the Administrator of Daman and
Union Territories are administrated by the President acting to Diu. Lakshadweep has a separate Administrator.
such extent, as he thinks fit, through an Administrator
The National Capital Territory of Delhi and Union Territory of
appointed by him. Administrators of Andaman and Nicobar
Puducherry each has a legislative assembly and council of
Islands, Delhi and Puducherry are designated as Lieutenant
ministers.
Governors. The Governor of Punjab is concurrently the
68
Time and again disputes between Lieutenant Governor and both the LG and the government of Delhi can work in a
Chief Ministers have come up related to administrative harmonious manner.
functions. Hereby discussing the issue. SUPREME COURT JUDGMENT ON DELHI ISSUE
ADMINISTRATION OF UNION TERRITORIES On Aid & Advice
Art. 239 (1) provides that every Union Territory shall be • The Court held that insertion of Article 239AA by 69th
administered by the President acting, to such extent as he Constitution Amendment has envisaged a representative
thinks fit, through an Administrator to be appointed by him form of Government for the NCT of Delhi.
with such designation as he may specify.
• The said provision intends to provide for the Capital a
PROVISIONS RELATED TO DELHI AND PUDUCHERRY directly elected Legislative Assembly which shall have
• Size of COMs is to be 10 % max. of legislative assembly legislative powers over matters falling within the State List
• Parliament can make laws on any subject given in 3 lists ( and the Concurrent List, (except police, land and public
Power also extends to Delhi & Pondicherry even though order).
they have their own legislature) • It further provides a mandate upon the Lieutenant
• Pondicherry & Delhi can also make laws on any subject of Governor to act on the aid and advice of the Council of
state list & concurrent list except laws related to Public Ministers except when he decides to refer the matter to
order, Police & land. the President for final decision. Thus, the Lieutenant-
Governor has no independent decision-making power. He
• President may frame regulations for peace, progress &
has to:-
good governance for all UTs except Delhi & Pondicherry.
ο either act on the ‘aid and advice’ of the Council of
• Parliament is empowered to constitute a high court for any
Ministers or
of the UT or even can declare an existing court there as
high court. ο he is bound to implement the decision taken by the
President on a reference being made by him
ISSUE IN DELHI: LG VS CM: SUPREME COURT JUDGMENT
• In case of difference of opinion, the LG should
There have been controversies over the routine
straightaway refer the dispute to the President for a final
administrative issues between the LG of Delhi and Delhi’s
decision without sitting over it or stultifying the
Chief Minister which had led to paralysis of work due to use
governance in the National Capital.
of discretionary power by the LG in administrative decisions.
Earlier in 2016, the Delhi High Court in its judgment held • The Lieutenant Governor must, by a process of dialogue
that:- and discussion, seek to resolve any difference of opinion
with a Minister. If it is not possible to resolve the dispute,
• the Lieutenant Governor is the administrative head of the
then LG must approach the Council of Ministers for
National Capital Territory and not the Chief Minister of
resolution of dispute on any matter.
Delhi and
• A reference to the President is contemplated by the
• Delhi continues to be a Union Territory rather than a full-
Transaction of Business Rules only when the above
fledged state.
modalities fail to yield a solution. In such situations the
• High Court of Delhi further declared that LG enjoys matter may be referred to the President.
discretionary power as per the Constitution and has
On Role of Lieutenant Governor
greater role to play in the administration of National
Capital Territory of Delhi. • Supreme Court held that the word “any matter” referred in
the proviso to clause (4) of Article 239AA cannot be
In response to the above judgment, the Government of Delhi
inferred to mean “every matter” by the LG. Thus, the
filed an appeal to the Supreme Court and asked whether the
power of the LG under the said proviso represents the
LG can unilaterally administer the National Capital without
exception and not the general rule which has to be
being bound by the “aid and advice” of the elected
exercised in exceptional circumstances.
government in all matters of daily governance. The Delhi
government also asked the Constitution Bench to specify • Supreme Court held that governance of Delhi cannot rest
those areas where LG can use his discretionary power so that upon the whims of one functionary namely the Lieutenant-
69
Governor as he cannot refer every matter of the Delhi • The Central government as well as the Administrator
Government to the President. This will create work [the term used in the Constitution to refer to the L-G]
paralysis. should be true to the concept of democratic principles.
• The Bench further cautioned the LG against sending every Otherwise, the constitutional scheme of the country of
“trivial” dispute with the government to the President and being democratic andrepublic would be defeated.
suggested that “LG must work harmoniously with his • Government secretaries were bound to take
Ministers”. instructions from the Ministers and the Council of
• The Bench advised both CM and LG of Delhi holding Ministers, headed by the Chief Minister. Government
constitutional posts to work in a collaborative manner so secretaries of the Puducherry administration were
as to fulfill the concept of “Collaborative Federalism” as required to report to the Council of Ministers headed by
envisaged in our Constitution. the Chief Minister on all official matters.
• Such co-operation will strengthen the concept of • Article 239A symbolises the supremacy of the
constitutional governance and will help in cultivating the Legislature above the Administrator in case of the Union
idea of respect for representative government. Territory of Puducherry.
On demand of statehood • The secretaries are not empowered to issue orders on
their own or upon the instructions of the
• The Court did not agree on the demand of full statehood
Administrator.
and thus the critical powers over Police, Land and Public
order still remain vested with the Centre. • Government officials cannot be a part of social media
groups through which the L-G was issuing instructions
• The Supreme Court took reference from the 1987
to them for redress of public grievances. As per
Balakrishnan Committee report to conclude
rules, they were bound to use only authorised medium
• On Sovereignty of People of communication when it came to issues related to
• The Court held that it is the people who are sovereign in a administration.
democracy and the decisions of the elected government in COMPARISON OF POWERS OF LG OF DELHI AND
Delhi represent public will, perception and popular PONDICHERRY
sentiment.
• The LG of Delhi has “Executive Functions” that allow
• Supreme Court observed that a well-deliberated legitimate him to exercise his powers in matters connected to public
decision of the Council of Ministers cannot be stymied by order, police and land “in consultation with the Chief
the negative attitude of the LG. As the Council represents Minister, if it is so provided under any order issued by the
members elected by the people. The negative attitude of President under Article 239 of the Constitution”. Simply
LG impacts the concept of collective responsibility as put, the LG of Delhi enjoys greater powers than the LG of
mandated in the Constitution of India. Puducherry.
• It is emphatically submitted that if the collective • While the LG of Delhi is also guided by the Government
responsibility of the Council of Ministers is not given the of National Capital Territory of Delhi Act, 1991, and the
expected weightage, then there will be corrosion of the Transaction of Business of the Government of National
essential feature of representative government. Capital Territory of Delhi Rules, 1993, the LG of
ISSUE IN PUDUCHERRY: LG VS CM: MADRAS HIGH COURT Puducherry is guided mostly by the Government of Union
JUDGMENT Territories Act, 1963.
The Madras High Court has ruled that the Lieutenant- • Articles 239 and 239AA of the Constitution, as well as
Governor (L-G) of Puducherry could not interfere with the the Government of National Capital Territory of Delhi
day-to-day administration of the Union Territory when an Act, 1991, clearly underline that Delhi is a UT, where
elected government was in place. The court said incessant the Centre, whose eyes and ears are the LG, has a
interference from the L-G would amount to running much more prominent role than in Puducherry.
a “parallel government.” • Under the constitutional scheme, the Delhi Assembly
KEY OBSERVATIONS MADE BY THE COURT: has the power to legislate on all subjects except law
70
and order and land. However, the Puducherry Assembly Lists. However, if the law is in conflict with a law passed by
can legislate on any issue under the Concurrent and State Parliament, the law passed by Parliament prevails.
SPICE APPROACH
Social dimension
Political/Legal Article 239AA of the Indian Constitution says that the Delhi Government does not have powers to
enact laws on Public Order, Police and Land. However, rule 45 of the transaction of business rules
Dimension
says that Delhi government can have powers on these three subjects if there is an order issued by
the Central Government. Hence chief minister demands more power for better execution of
governance.
Institutional In 1991, 69th constitution amendment was passed and Union territory of Delhi was changed
dimension to National Capital Territory (NCT). In Article 239AA, it was mentioned Delhi will be given special
provision which was a Legislative assembly and council of ministers. So, it was decided that Delhi
will have 70 seats and council of ministers will be 1/10 of the strength of the assembly.
The structure of the Puducherry Legislature is unicameral. The Legislative Assembly consists of 30
members. The people on the basis of adult franchise directly elect all the members.
In terms of the provisions of the Government of Union Territories Act, 1963 the normal tenure of the
Assembly is five years, unless sooner dissolved. There are 16 Committees in the Assembly.
Cultural dimension In a democratic republic, the elected representatives reflect the will of the collective. Hence
constitutional morality and principles should be maintained for the betterment of the nation.
Economic
dimension
►ARTICLE 35A AND J&K persons domiciled in Jammu and Kashmir shall be
regarded as citizens of India. But the State Legislature was
A petition has been filed in the Supreme Court which empowered to make laws for conferring special rights and
says Article 35A was against the “very spirit of oneness of privileges on the State's subjects.
India” as it created a “class within a class of Indian citizens”. It
• Thus, keeping the Delhi Agreement in mind, the 1954
said restricting citizens from other States from getting
Presidential Order provided for Article 35A to the Indian
employment or buying property within Jammu and Kashmir is
Constitution.
a violation of fundamental rights under Articles 14, 19 and 21
of the Indian Constitution. SALIENT PROVISIONS OF ARTICLE 35A
Hereby discussing the salient features of the Article 35A and • Article 35A grants the status of permanent residency to the
whether it is a violation of fundamental rights. residents of Jammu and Kashmir (J&K). Article 35A has
been added to the Indian Constitution through The
BRIEF BACKGROUNDER
Constitution (Application to Jammu and Kashmir) Order,
• Delhi Agreement was signed between Jawaharlal Nehru 1954 in exercise of the powers conferred by clause (1) of
and the then Prime Minister of Jammu and Kashmir, Article 370 of the Indian Constitution, and not through an
Sheikh Abdullah. amendment under Article 368 of the Constitution.
• As per the Delhi Agreement of 1952, it was agreed The subjects on whom Article 35A applies are:
between state of Jammu & Kashmir and Union of India that
71
• A law defining the classes of persons who are, or shall be • Thus, Article 370 empowers the President to define the
permanent residents of the State of Jammu and Kashmir constitutional relationship of the State in terms of the
• A law conferring on such permanent residents any special provisions of Indian Constitution, in concurrence with
rights and privileges or imposing upon other persons any State of Jammu and Kashmir and as per terms of
restrictions with respect to: Instruments of Accession.
ο Employment under the State Government;

GROUNDS OF CHALLENGE ON ARTICLE 35A
ο Acquisition of immovable property in the State; A writ petition filed by NGO We the Citizens challenges the
validity of both Article 35A and Article 370. It argues that four
ο Settlement in the State;
representatives from Kashmir were part of the Constituent
ο Right to scholarships and such other forms of aid as the Assembly involved in the drafting of the Constitution and the
State Government may provide. State of Jammu and Kashmir was never accorded any special
PERMANENT RESIDENT status in the Constitution.
The concept of Permanent Resident is implicit in Article 35A The other grounds of challenge are:
which is also prescribed in section 6 of Constitution of Jammu • President cannot amend the Constitution through a
and Kashmir. It says that every person who is, or is deemed Presidential Order as amendment of the Constitution can
to be, a citizen of India under the provisions of the be carried only through Article 368 which confers the
Constitution of India, shall be a permanent resident of the Power on the Parliament.
State –
• Position of Article 370 was always a temporary provision in
• If on the fourteenth day of May, 1954 they were state our Constitution and must be rem-oved so as to bring
subject, State of Jammu and Kashmir at par with other states of the
• He/she has acquired immovable property and has been Indian Union.
resident of the state for not less than 10 years from May, • Government of Jammu and Kashmir has discriminated
1954 against non-residents as they are not allowed to buy
• Any person who, before the fourteenth day of May, 1954, property in the state, get government jobs or vote in local
was a State Subject – who migrated to Pakistan after the elections.
first day of March, 1947 – has returned to the state under a • Permanent Resident Certificate as guaranteed by
permit for resettlement – or has returned permanently to Constitution of Jammu and Kashmir violates Article 14 of
the state as acknowledged by state authorities. Indian Constitution.
ARTICLE 370 A second petition filed by Jammu and Kashmir native Charu
• Article 370 of the Indian Constitution provides for Wali Khanna has challenged Article 35A for protecting certain
temporary provisions with respect to State of Jammu and provisions of the Jammu and Kashmir Constitution, which
Kashmir. restrict the basic right to property if a native woman marries
a man not holding a permanent resident certificate.
• Article 370 makes Article 1 of the Indian Constitution which
defines the name and territory of the Indian Union CRITICISM OF THE ARTICLE 35A
applicable to J & K. The core challenge is on the following:
• As per Article 370 (1)(b), Parliament can make laws only on • It facilitates the violation of the right of women to “marry a
those matters of Union List and Concurrent List which man of their choice” by not giving the heirs right to
corresponds to the subjects mentioned in the State’s property, if the woman marries a man who is not a
Instrument of Accession. permanent resident. Her children are not given Permanent
• Parliament can also make law on such other subjects in Resident Certificate and thereby considering them unfit for
the Union or Concurrent List as the President may by inheritance not given right to such woman’s property even
order specify with the concurrence of State Government of if she is a permanent resident.
J&K. • It leads to the violation of fundamental rights of those
workers and settlers like SC and ST people who have lived
there for generations. The Valmikis who were brought to
72
the state in 1957 were given Permanent Resident • It ruins the status of West Pakistani refugees. Being
Certificates on the condition that they and their future citizens of India they are not only stateless persons, but
generations could stay in the state only if they continued being non-permanent residents of J&K, they cannot enjoy
to be safai karmacharis (scavengers). And even after six the basic rights and privileges as being enjoyed by
decades, their children are safai karmacharis and they permanent residents of the state.
have been denied the right to quit scavenging. • It gives a free hand to the state and politicians to
• The industrial sector and private sector suffer due to the discriminate between citizens of India, on an unfair basis
property ownership restrictions. Good doctors don’t come and give preferential treatment to some by trampling over
to the state for the same reason. others, since the non-residents of the state are debarred
• Children of non-state subjects do not get admission to from buying properties, getting a state job or voting in the
state colleges. local elections.
SPICE APPROACH
• Article 35A does not allow citizens from outside the state to own property in J&K.
• Non-J&K Indian citizens can’t get permanent residency in the state.
• Indian citizens from outside J&K aren’t allowed admission to schools and colleges in the state.
Social dimension
• Indian citizens, from outside J&K, cannot take employment in the state.
• Under Article 35A, women who marry non-J&K Indian citizens automatically lose their property and
residential rights in the state.
• Article 370 provides special status to Jammu and Kashmir.

• Article 35A gives powers to the state legislature to define permanent residents of the state and
Political/Legal their privileges.
Dimension • Under Article 6 of the Jammu and Kashmir Constitution, Indians are not conferred state subjects
which prevent them from voting, holding jobs, getting admissions to colleges etc. This amounts to
the violation of Article 14, 15, 16, 19 of the Constitution of India.
Institutional
dimension
• It leads to the violation of fundamental rights of those workers and settlers like SC and ST people
Cultural dimension
who have lived there for generations.
• Article 35A, restricts non-permanent residents to buy property in Jammu and Kashmir, is
Economic hampering economic development of the state.
dimension • No investor is willing to set up an industry, hotel, private educational institutions or private
hospitals since he can neither buy land or property nor can his executives do so
►HOW TO STRENGTHEN either House of the Parliament; still he is an integral part of

the Parliament.
PARLIAMENT?
The cardinal functions of the Legislature include overseeing
The Constitution of India provides for a bicameral Parliament of administration, passing of budget, ventilation of public
consisting of the President and the two Houses known as the grievances, and discussing various subjects like development
Council of States (Rajya Sabha) and the House of the People plans, international relations, and national policies.
(Lok Sabha). However, the President is not a member of
73
The Parliament can, under certain circumstances, assume • Only about few Bills are referred to committees; this step
legislative power with respect to a subject falling within the must be made mandatory for all Bills, as in the British
sphere, exclusively reserved for the states. Parliament.
The Parliament is also vested with powers to impeach the • Committees should also be provided with an adequate
President, remove judges of Supreme and High Courts, the number of researchers to help them understand complex
Chief Election Commissioner, and Comptroller and Auditor and technical issues; at present they do not have any
General in accordance with the procedure laid down in the research staff.
Constitution. • Parliament should pass Bills only after due deliberation.
All legislation requires the consent of both Houses of This trend needs to be reversed and MPs must express
Parliament. In the case of Money Bills, the will of the Lok their views and discuss the implications of various
Sabha prevails. The Parliament is also vested with the power provisions before approving the Bill. Also, there is no
to initiate amendments in the Constitution. record in most cases of how MPs voted. Most Bills are
HOW IS PUBLIC OPINION REFLECTED IN PARLIAMENT? passed by voice vote, and one does not know how, or even
whether, each MP voted on it. It should be mandatory to
MPs may raise issues of public importance in Parliament, and
record the votes on Bills to bring greater transparency and
examine the government’s response to problems being faced
accountability of the MP to his voters.
by citizens through: (i) a debate, which entails a reply by the
concerned minister, or (ii) a motion which entails a vote. The CONVENING OF PARLIAMENT AND FIXING AN ANNUAL
time allocated for discussing some of these debates or Bills is CALENDAR OF SITTINGS
determined by the Business Advisory Committee of the • The Constitution entrusts it with the responsibility of
House, consisting of members from both the ruling and holding the Government accountable, yet it does not have
opposition parties. the power to convene itself to keep checks on Government
Using these methods, MPs may discuss important matters, functioning.
policies, and topical issues. The concerned minister while • In some Commonwealth countries, the yearly calendar of
replying to the debate may make assurances to the House Parliament is determined in advance and the dates of its
regarding steps that will be taken to address the situation. sittings are known for the entire year.
Alternatively, MPs may move a motion for: (i) discussing • Unlike in India where the President convenes and
important issues (such as inflation, drought, and corruption), prorogues the Parliamentary sessions, in these countries
(ii) adjournment of business in a House in order to express Parliament is in session for the entire year and takes
displeasure over a government policy, or (iii) expressing no scheduled breaks in between.
confidence in the government leading to its resignation.
• Such mechanisms ensure that the Government does not
STRENGTHENING THE LEGISLATIVE PROCESS escape Parliamentary scrutiny.
With time available for debating and passing legislation CHANGES IN ANTI-DEFECTION LAW
shrinking, there is a need to strengthen the legislative
• Currently, MPs are required to vote in the Parliament on
process to make it more rigorous and time bound.
party lines. If they vote against the party whip they stand
Steps needed are: to lose their seat in Parliament. This impinges upon the
• In theory, any MP may introduce a Bill: those introduced concept of MPs as lawmakers and reduces them to a
by the government through ministers are called “headcount”.
government Bills, others are called private members’ Bills. • Experts have suggested that the MPs should be required
In practice, only government Bills are passed into law. The to vote on party lines only when the fate of the
ratio of passage of Provate Members’ Bill are poor thus Government hangs in balance. On legislative and other
greater importance should be provided to private debates, they should be allowed to vote according to their
members’ Bills without government sponsorship. This will.
reform is needed to make MPs true “legislators”.
IMPROVE FUNCTIONING OF THE PARLIAMENT
• Currently the business that is transacted is dictated by the
Government and the Opposition has a limited say in
74
setting the agenda for debate. This leads to disruptions, ►CONSTITUTION OF CABINET
when the Government is reluctant to debate contentious
issues.
COMMITTEES
• In other Parliamentary democracies this is handled in two Article 77 of the Indian Constitution mentions about Conduct
ways. of business of the Government of India. Article 77(3)
highlights that The President shall make rules for the more
ο The first is by giving the Opposition parties a fixed
convenient transaction of the business of the Government
number of days in a week where they are free to decide
of India, and for the allocation of business among
the day’s agenda.
Ministers. So based on Article 77(3), Government of India
ο The second is that a debate on a topic is taken up if a (Transaction of Business) Rules, 1961 has been legislated.
minimum number of MPs are in favour of such a The rules provide for the constitution of Committees of the
debate. Cabinet and highlights that these committees shall be
Standing Committees. Allocation of Ministers to each
IMPACT OF DISRUPTION OF PARLIAMENT ON THE
committee shall be decided by the Prime Minister. Secretarial
DEMOCRATIC PROCESS
assistance for the work of cabinet committees is provided by
• Members of Parliament are chosen both directly and Cabinet Secretariat. The secretarial assistance, provided by
indirectly and represent the will of the people. This Cabinet Secretariat to the Cabinet and Cabinet committees,
mandate given by the citizens during elections needs to includes convening of the meetings of cabinet committees on
adhered to by ensuring smooth functioning of the the orders of PM, preparation and circulation of agenda of
Parliamentary process. Non-working of Parliament in a the meeting, preparation and circulation of records of
true sense reflects the paralysis of democracy and also discussions and monitoring implementation of decisions
abuses the will of the people. taken by the Cabinet Committees.
• Because of washouts, both Lok Sabha and Rajya Sabha has The Cabinet Secretariat functions directly under the
lost precious working hours which could have been utilised Prime Minister. The administrative head of the Secretariat is
for the welfare of the nation by passing relevant laws. the Cabinet Secretary who is also the ex-officio Chairman of
A non-functioning Parliament truly represents a dysfunctional the Civil Services Board. The business allocated to Cabinet
democracy. Secretariat under Government of India (Allocation of
SUITABLE MEASURES Business) Rules, 1961 includes (i) Secretarial assistance to the
Cabinet and Cabinet Committees; and (ii) Rules of Business.
• As per the rules of Parliament, It is the duty of both the
The Cabinet Secretariat is responsible for the administration
government in power and the opposition to discuss
of the Government of India (Transaction of Business) Rules,
matters of national importance affecting our daily lives. It
1961 and Government of India (Allocation of Business) Rules,
is also the duty of Speaker of Lok Sabha and Chairman of
1961 facilitating smooth transaction of business in Ministries/
Rajya Sabha to ensure smooth functioning of the
Departments. The Secretariat assists in decision-making in
Parliament.
Government by ensuring Inter-Ministerial coordination,
• The government in power, the opposition and states ironing out differences amongst Ministries/Departments and
having their grouse should come together on a common evolving consensus through the instrumentality of the
platform to iron out their issues and provide a roadmap standing/adhoc Committees of Secretaries. Management of
for the functioning of the Parliament. major crisis situations in the country and coordinating
• A non-functioning Parliament does not reflect well on the activities of various ministries in such a situation is also one
democratic system prevalent in India and creates a bad of the functions of the Cabinet Secretariat.
image in the world. Thus, co-operation in Parliament FUNCTIONS OF PMO
functioning is the need of the hour so as to truly follow the
The Prime Minister's Office came into existence after India
principles of democracy – by the people, for the people
became independent. The Prime Minister's Secretariat, as it
and off the people.
was then known, provided the Secretarial assistance needed
by the Prime Minister in his public activities and functions as
the head of the government. The Prime Minister's Office is
75
headed politically by Prime Minister and administratively by

the Principal Secretary. The Prime Minister's Office performs
Cabinet Committee on Political Affairs deals with
several functions:
problems relating to Centre-State relations, considers
• Assisting the prime minister in respect of his overall economic and political issues that have to be judged with a
responsibilities as head of the government like
wider perspective and deals with policy matters concerning
maintaining liaison with central ministries/departments
foreign affairs that do not have external or internal security
and the state governments.
implications.
• Helping the prime minister in respect of his responsibilities
The Cabinet Committee on Parliamentary Affairs draws
as chairman of the Planning Commission, and the National
the schedule for Parliament sessions and monitors the
Development Council.
progress of government business in Parliament. It scrutinises
• Looking after the public relations of 'the prime minister non-government business and decides which official Bills and
like contact with the press and general public. resolutions are to be presented.
• Dealing with all references, which under the Rules of The Cabinet Committee on Economic Affairs is supposed
Business have to come to the prime minister. to review economic trends, problems and prospects “for
• Providing assistance to the prime minister 'in the evolving a consistent and integrated economic policy”,
examination of cases submitted to him for orders under coordinate all activities requiring policy decisions at the
prescribed rules. highest level, deal with fixation of prices of agricultural
produce and prices of essential commodities. It considers
• Maintaining liaison with the President, Governors, and
proposals for investment of more than Rs 1,000 crore, deal
Foreign Representatives in the country. Acting as the
with industrial licensing policies and review rural
'think-tank' of the prime minister.
development and the Public Distribution System.
 After coming into power, the newly formed
The Cabinet Committee on Security deals with issues
government has re-constituted the Cabinet Committees
relating to law and order, internal security and policy matters
including two new cabinet committees
concerning foreign affairs with internal or external security
implications. It also goes into economic and political issues
NAME OF THE
HEADED BY related to national security. It considers all cases involving
COMMITTEE
capital defence expenditure more than Rs 1,000 crore. It
1. Appointments Committee Prime Minister considers issues related to the Department of Defence
Production and the Department of Defence Research and
Cabinet Committee on Minister of Home Development, Services Capital Acquisition plans and schemes
2.
Accommodation. Affairs. for procurement of security-related equipment.
Cabinet Committee on The Cabinet Committee on Investment will identify key

3. Prime Minister
Economic Affairs. projects required to be implemented on a time-bound basis”,
involving investments of Rs 1,000 crore or more, or any other
Cabinet Committee on Minister of Home critical projects, as may be specified by it, with regard to
4.
Parliamentary Affairs Affairs infrastructure and manufacturing. It will prescribe time limits
for giving requisite approvals and clearances by the ministries
Cabinet Committee on Political
5. Prime Minister concerned in identified sectors. It will also monitor the
Affairs.
progress of such projects.
6. Cabinet Committee on Security Prime Minister Committee on Investment & Growth will be a focussed
group to take measures to bring investments and spur
Committee on Investment &
7. Prime Minister growth in the critical sectors including infrastructure,
Growth
manufacturing and agriculture. The committee will prepare a
Committee for Employment road map to bring the economy back on the growth
8. Prime Minister
and Skill Development trajectory considering falling GDP growth in the last quarter
to 5.8%. The fall in growth is result of dip in the performance
76
of the core sectors of the economy, as the eight core sectors period of the Internal emergency (1975-1977) which
namely coal, crude oil, natural gas, refinery products, ushered in an era of authoritarian Prime Ministerial rule. As a
fertilisers, steel, cement and electricity recorded a growth of consequence the Prime Minister's Secretariat became the
just 2.6 % in April 2019 compared with 4.6% in April 2018. The focus of all authority and its writs began to be obeyed by all
recent The Periodic Labour Force Survey released by NSSO central ministries, departments and other executive agencies.
showed unemployment at 45 year high of 5.3% in rural India During Indira Gandhi's reign the Prime Minister's Secretariat
and 7.8% in urban India resulting in an overall unemployment virtually became a national policy formulation body and the
of 6.1%. Cabinet Secretariat its enforcement arm. Later during the
Janata period, an effort was made to diffuse the existing
Committee for Employment and Skill Development will
concentration of power in the Prime Minster's Secretariat and
look into issues of MSME sector and will try to provide easy
reduce it to the status of a mere 'office' whose functions were
access to credit under Credit Guarantee Scheme.
merely secretarial in nature. As a result the Secretariat was
ROLE OF CABINET OVER A PERIOD OF YEARS divested of its various policy making cells.
The role of the Prime Minister's Office has evolved and varied PRESENT CONTEXT
from Prime Minister to Prime Minister. Under Nehru the size
Prime Minister of India as of now is heading six out of eight
of the office was limited, so was its role. Under his tenure, a
cabinet committees thereby leading to more centralisation of
greater reliance bn the Ministries and their advisers. The
powers. Cabinet Committees are important organ of state
tenure of Lal Bahadur Shashtri saw the coming into age of
executive for decision making. As we can see above, Prime
Prime Minister’s Secretariat. He appointed L.K. Jha as the
Minister himself heads Appointments Committee, Cabinet
Secretary to the Prime Minister and he became the head of
Committee on Economic Affairs, Cabinet Committee on
the Secretariat. Jha's powerful and dynamic personality raised
Political Affairs, Cabinet Committee on Security, Committee
the status and stature of the Secretariat and also added to its
on Investment & Growth and Committee for Employment and
tasks. Under Jha's stewardship the Prime Minister's Office
Skill Development. This effectively makes the Prime Minister
started commanding a formidable influence in the making of
and his office a virtual super cabinet as most of the important
decisions, a trend which got further strengthened during
policy decisions of the government will flow through the
Indira Gandhi's Prime Ministership.
Prime Minister Office (PMO). This can be said to be an
During tenure of Indira Gandhi, Prime Minister's Secretariat example of centralisation of power based on the personality
became an independent executive force as much of the cult and leadership abilities of the Prime Minister
domestic and foreign policy took shape at the secretariat and
a lot of authority came to be concentrated in the Prime
Minister's Office. This became all the more marked during the
77
Section-3
J UDICIARY
JUDICIARY
►COLLEGIUM SYSTEM IN These judgments were delivered amid ever changing political
atmosphere of the country where the powers of executive
APPOINTMENT OF JUDGES and judiciary often overlapped into each other’s jurisdiction
Elevation of judges by Collegium to higher judiciary is mostly creating unnecessary friction.
shadowed by controversy. Time and again this controversy
PROBLEMS WITH THE COLLEGIUM SYSTEM
comes whenever new appointments of judges are done.
• Lack of transparency:
Hereby discussing the collegium system, its lacunas and steps
needed. Collegiums system suffers from certain problems which
include lack of transparency as the judges inside the system
WHAT IS A COLLEGIUM?
reveal nothing before the process s completed. Also its
• The Collegium System is one where the CJI and a forum of
biggest loophole is the question regarding its
four senior-most judges of the Supreme Court
constitutionality. The basic criterion of appointment of judges
recommends appointment and transfer of judges of
in this system is the one of the independence of judiciary
higher judiciary.
which is held to be the paramount value.
• The collegium system evolved through three different
Thus the collegiums system of appointment and transfer is
judgments which are collectively known as the Three
not the most efficient one as it was criticized by Justice
Judges Cases.
J.S.Verma.
HOW COLLEGIUM CAME INTO BEING?
• Politicization of judiciary:
 Earlier Practice
Separation of judiciary is the keystone of Indian democracy,
• Power to appoint Supreme Court judges rested primarily
and this idea has been emphasized by the constitution
with the Executive. The practice was to appoint the Senior
makers by including the article 50 (directive principles of
Most judge of the Supreme Court whenever a vacancy
state policy) mentioning that The State shall take steps to
occurred by the Executive.
separate the judiciary from the executive in the public
• This move was criticized by Fourteenth Law Commission
services of the State. But the opaque collegium system is
Report and suggested to widen the role of Chief Justice of
used by the politicians to fulfill their self-interest.
India (CJI) in judicial appointments. However, the
government did not act upon this recommendation and • Nepotism:
continued its practice. As there is no transparency, appointment on the basis of
 Departing from the Process preferences are also patronized, over deserving candidates
and qualifications.
• In 1973, the Union government departed from this practice
and appointed Justice A.N. Ray as CJI who was fourth in • Absence of Permanent Commission:
order of seniority bypassing three senior judges of Lack of permanent commission has led to inefficiency in
Supreme Court. The government was accused of
appointment process and higher judiciary has huge number
tampering with the independence of judiciary. The three
of vacant positions. There has been an administrative burden
senior judges resigned from their post in protest. Again in
of appointing and transfer of judges as there is no separate
1976, government appointed Justice Beg as CJI bypassing
secretariat.
Justice Khanna who was senior to him.
RECENT CHANGES
• Thus, interference by executive in judicial appointments
was cloaked in veils of politics and it started a disturbing • To bring more transparency in the working of Collegium
trend in judicial appointments in India. Till 1976, India had all the recommendations of the Collegium will be available
witnessed emergency and implementation of 42nd on the website of Supreme Court including the reasons for
amendment had casted a serious doubt on the ever recommendations or rejection of names for appointment,
growing power of executive in all spheres of democracy. transfers or elevation to either High Court or Supreme
EMERGENCE OF COLLEGIUM Court. However, the correspondence of collegium is not
under the preview of RTI.
In such an environment of growing executive influence, the
collegium system evolved through three different judgments
which are collectively known as the Three Judges Cases.
79
RAU’S IAS FOCUS SPECIAL EDITIONS | MAINS COMPASS (C3CURATION) for CSE 2019
JUDICIARY
• Despite the transparency, questions have been raised In other countries transparency in appointments is integral to
about the arbitrary decision making of the collegium in the the process. In the United States, for example, candidates for
recent past. judicial appointments in the federal judiciary are subjected to
• Hence the Supreme Court must ensure that the process public confirmation hearings by the Senate.
meets the standards of accountability and fairness in a In Kenya and South Africa, the interviews of candidates taken
democratic republic. by judicial appointments commissions are broadcast live. The
• The Collegium, however, has immunized itself from any public, thus, is in a position to judge for itself the selection
form of public scrutiny. The nomination process is secret, process. This is crucial to maintaining public faith in the
the deliberations are secret, the reasons for elevation or impartiality of the institution.
non-elevation are secret. This creates an extremely CONCLUSION
unhealthy climate and rumours about executive The Government of India passed Constitution (One Hundred
interference are spread. and Twenty-First Amendment) Bill, 2014 to establish a
• Thus, bringing collegium under RTI will make the National Judicial Appointment Commission (NJAC) to replace
judiciary more responsible in their way of functioning, both the Collegium.
judicially and administratively. However, a Five Judge Bench of Supreme Court declared NJAC
as unconstitutional and effectively revived the Collegium.
SPICE APPROACH
• Collegium system promotes nepotism and inequality, people are not selected on the basis of
merit.
• It failed to keep pace with the stalled vacancies due to various reasons of caste and other political
Social dimension
and communal reasons.
• There is no intelligence gathering mechanism to collect and keep a check on the professional and
personal background of potential appointees
Collegium system has evolved through the series of judgement of “Judges case”. There were three
cases namely:
1. S. P. Gupta v. Union of India - 198 (also known as the Judges' Transfer case): it was found that
CJI does not have any primacy. The Constitution Bench also held that the term “consultation” used
in Articles 124 and 217 was not “concurrence” — meaning that although the President will consult
these functionaries, his decision was not bound to be in concurrence with all of them.
2. Supreme Court Advocates-on Record Association vs Union of India – 1993: a nine-judge
Constitution Bench overruled the decision in S P Gupta and devised a specific procedure called
Political/Legal ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. The
majority verdict accorded primacy to the CJI in matters of appointment and transfers while also
Dimension
ruling that the the term “consultation” would not diminish the primary role of the CJI in judicial
appointments. Ushering in the collegium system, the court said that the recommendation should
be made by the CJI in consultation with his two seniormost colleagues, and that such
recommendation should normally be given effect to by the executive.
3. In re Special Reference 1 of 1998: In 1998, President K R Narayanan issued a Presidential
Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of
the Constitution (advisory jurisdiction). The question was whether “consultation” required
consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of
CJI could by itself constitute a “consultation”. In response, the Supreme Court laid down 9
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JUDICIARY
guidelines for the functioning of the coram for appointments and transfers — this has come to be
the present form of the collegium, and has been prevalent ever since. This opinion laid down that
the recommendation should be made by the CJI and his four seniormost colleagues, instead of
two. It also held that Supreme Court judges who hailed from the High Court for which the
proposed name came, should also be consulted. It was also held that even if two judges gave an
adverse opinion, the CJI should not send the recommendation to the government.
• The Supreme Court collegium is headed by the Chief Justice of India and comprises four other
seniormost judges of the court.
• A High Court collegium is led by its Chief Justice and four other seniormost judges of that court.
• Names recommended for appointment by a High Court collegium reaches the government only
Institutional after approval by the CJI and the Supreme Court collegium.
dimension • The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if
a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the
collegium reiterates the same names, the government is bound, under Constitution Bench
judgments, to appoint them as judges.
The collegium system was regarded as undemocratic in the sense that the main decision makers in
cases of appointments and transfers were the judges i.e. the chief justice and two senior most
Cultural dimension
judges who are not accountable to the masses and hence can't be regarded as proper and
responsible decision makers
Economic
dimension
►IMPEACHMENT OF THE CHIEF • The procedure for removal of judges is elaborated in

the Judges Inquiry Act, 1968. The Act sets out the following
JUSTICE OF INDIA steps for removal from office:
The constitution of India provides for an elaborate
ο Under the Act, an impeachment motion may originate
mechanism for the removal of Judge of Supreme Court or
in either House of Parliament. To initiate proceedings: (i)
High Court to ensure independence of Judiciary from the
at least 100 members of Lok Sabha may give a signed
Executive.
notice to the Speaker, or (ii) at least 50 members of
Hereby discussing the procedure in detail. Rajya Sabha may give a signed notice to the Chairman.
INTRODUCTION The Speaker or Chairman may consult individuals and
• Article 124 of Constitution makes the CJI head of the examine relevant material related to the notice. Based
Supreme Court and also provides for the manner of his on this, he or she may decide to either admit the motion
removal. or refuse to admit it.
• A person appointed as the CJI or any other judge of the ο If the motion is admitted, the Speaker or Chairman (who
Supreme Court can only be removed on the ground of receives it) will constitute a three-member committee to
"proved misbehavriour or incapacity" before retirement investigate the complaint. It will comprise:
due to age or resignation or death. (i) a Supreme Court judge;
JUDGES INQUIRY ACT, 1968
(ii) Chief Justice of a High Court; and
• The Constitution provides that a judge can be removed
(iii) a distinguished jurist.
only by an order of the President, based on a motion
passed by both Houses of Parliament.
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JUDICIARY
• The committee will frame charges based on which the • If the motion is adopted by each House of Parliament as
investigation will be conducted. A copy of the charges will per Article 124(4) and Article 218 of the Constitution, then,
be forwarded to the judge who can present a written the misbehaviour or incapacity of the Judge shall be
defence. deemed to have been proved.
ο After concluding its investigation, the Committee will • Further an address praying for the removal of the Judge
submit its report to the Speaker or Chairman, who will shall be presented in the prescribed manner to the
then lay the report before the relevant House of President by each House of Parliament in the same
Parliament. If the report records a finding of session in which the motion has been adopted.
misbehaviour or incapacity, the motion for removal will WHY THE REPORT CANNOT BE MADE PUBLIC?
be taken up for consideration and debated.
• As per the 2003 judgment in Indira Jaising v. Supreme Court
ο The motion for removal is required to be adopted by
of India, the report of a committee constituted as part of
each House of Parliament by: (i) a majority of the total the in-house procedure is not liable to be made public.
membership of that House; and (ii) a majority of at least Hence, the current report will not be made public.
two-thirds of the members of that House present and
• According to it, a report made on such inquiry, if given
voting. If the motion is adopted by this majority, the
publicity, will only lead to more harm than good to the
motion will be sent to the other House for adoption.
institution, as judges would prefer to face inquiry leading
ο Once the motion is adopted in both Houses, it is sent to
to impeachment, the judgment states.
the President, who will issue an order for the removal of
• It is not appropriate for the petitioner to approach the
the judge.
Supreme Court for a direction for release of the report, the
ACTIONS TAKEN ON THE REPORT Court held in Jaising’s case. All that the CJI does in case of
• If the report finds the Judge to be Not Guilty of any an in-house procedure is to get information from peer
misbehaviour or does not suffer from any incapacity, then judges of those who are accused and the report made to
no further steps shall be taken in either House of the Chief Justice of India is wholly confidential. The said
Parliament. report is only for the purpose of satisfaction of the Chief
• If the report finds the Judge Guilty of any misbehaviour or Justice of India.
suffering from any incapacity, then the motion for removal • It is purely preliminary in nature, ad hoc and not final.
along with the report of the committee shall be taken up
by the Houses of Parliament.
SPICE APPROACH
Social dimension
As per Article 124(4) of the Constitution of India, "A Judge of the Supreme Court shall not be
removed from his office except by an order of the President passed after an address by each House
Political/Legal of Parliament supported by a majority of the total membership of that House and by a majority of
Dimension not less than two-thirds of the members of that House present and voting has been presented to
the President in the same session for such removal on the ground of proved misbehaviour or
incapacity.
• Inquiry committee: If and when the motion is admitted, the Speaker or the Chairman will have to
constitute a three-member committee to investigate the charges levelled against the Supreme
Institutional Court judge. This committee will consist of a senior Supreme Court judge, the Chief Justice of a
dimension High Court judge and a ‘distinguished jurist’.
• The three-member committee will submit the report, and if the charges are confirmed it will be
taken up for discussion in the House where it was introduced. In the House, it has to be discussed
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JUDICIARY
and passed with a special majority — not less than two-thirds. This means, in case of a full House
seated, at least 364 Members should be have voted for the motion in the Lok Sabha, and 164
Members in the Rajya Sabha.
• This will then pass on to the other House where it has to be passed by special majority again.
Once it passes both the Houses of Parliament, the President can be approached to remove the
Chief Justice of India.
The people of a nation may lose confidence in the Executive (The King), or the Legislature but it will
be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of human
Cultural dimension rights and civil liberties. Hence impeachment process has been inculcated within the constitution –
to maintain independence of judiciary and to build trust of common man on judiciary as judges can
be removed due to corruption or incapacity.
Economic
dimension
• Most of the prisons face problems of overcrowding and
shortage of adequate space to lodge prisoners in safe and
►ISSUES RELATED TO UNDERTRIALS healthy conditions.
IN INDIA • The Right to Speedy Trial - as recognised by the Supreme
The National Crime Records Bureau’s (NCRB) annual Court in Hussainara Khatoon vs. Home Secretary, Bihar is
statistical report called the “Prison Statistics India‟ (PSI) violated due to protracted delays. This delay is due to all
contains information with respect to prisons, prisoners, and kinds of reasons such as -
prison infrastructure. According to PSI 2015, there were
a. Systemic delays.
4,19,623 prisoners across the country; out of which, 67.2% i.e.
b. Grossly inadequate number of judges and prosecutors.
2,82,076 were undertrials (i.e. people who have been
committed to judicial custody pending investigation or trial by c. Absence or belated service of summons on witnesses.
a competent authority); substantially higher than the convict d. Presiding judges proceeding on leave.
population i.e. 1,34,168 (32.0%).
e. Remands being extended mechanically due to lack of
This shows the pity state of undertrials in India. Hereby time and patience with the presiding judge.
discussing the issues related to undertrials and challenges
f. Inadequacy of police personnel and vehicles which
faced by them.
prevents the production of all prisoners on their due
WHO ARE UNDERTRIALS? dates.
Under-trial prisoners are those persons who are facing trials g. Many a times, the escorting police personnel merely
in the competent courts. These under-trial prisoners are produces the remand papers in the courts instead of
detenus put in prison mainly under non-bailable offences and actually producing the prisoner in front of the
persons who are unable to produce sufficient sureties in magistrate. This practice is widely reported,
cases of bailable offences. notwithstanding the strict requirement of the law in
ISSUES FACED BY UNDERTRIALS section 167(2)(b) of the Criminal Procedure Code, 1973
which says that - 'No Magistrate shall authorize
• Group violence and riots are common.
detention in any custody under this section unless the
• With hardened criminals being around and in the absence
accused is produced before him.'
of scientific classification methods to separate them from
• Right to bail is denied even in genuine cases. Even in cases
others, contamination of first time, circumstantial and
where the prisoner was charged with bailable offence, they
young offenders into full-fledged criminals occurs very
are found to rot in prisons due to exorbitantly high bail
frequently.
amount.
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• Large number of persons including women and children • Under no circumstance should they be put under the
are detained under Section 109 of the Criminal Procedure charge of convicted prisoners.
Code provides for failure to furnish requisite security for • Institutions meant for lodging undertrial prisoners should
keeping good behaviour. be as close to the courts as possible.
• The police usually pick them up "because the number of • Provisions of Section 167 of the CrPC with regard to the
cases had to be brought up to the specified figure". The time limit for police investigation in case of accused
authorities refuse to release them without bail whereas undertrial prisoners, should be strictly followed both the
the standing law on Section 110 says that you cannot ask police and courts.
for bail from such persons, only the history ticket is
• Automatic extension of remands has to stop which are
required.
also given merely for the sake of the convenience of the
• In the absence of a system, that takes a proactive role in authorities. Mere convenience of the authorities cannot
providing legal services to prisoners their right to effective supersede the Constitutional guarantees under Article 21.
Legal Aid is also violated due to politicisation of legal aid
• All undertrial prisoners should be effectively produced
schemes as many lawyers are hired on political
before the presiding magistrates on the dates of hearing.
consideration who get a fix salary without the pressure of
disposing off cases at the earliest. • The possibility of producing prisoners at various stages of
investigation and trial, in shifts should be explored.
REMEDIES AVAILABLE IN INDIA
• Video conferencing between jails and courts should be
• Public Law remedies are available in the form of petitions
encouraged and tried in all states beginning with the big
under Article 32 before the Supreme Court or under Article
Central jails and then expanding to District and Sub jails.
226 before the respective High Court under the
Constitution of India. The main problem in availing a • The District Magistrate should constitute a committee
remedy under public law is the absence of a framework to consisting of representatives from the local police,
calculate the amount of compensation for violations such judiciary, prosecution, district administration and the
as illegal detention, wrongful incarceration etc. The public prison department at a fairly high level, to visit the Sub jails
law remedy, therefore is founded on a case-to-case basis under their jurisdiction at least once every month and
approach, which is often lacking in uniformity, arbitrary review delay in cases of prisoners if any and adopt suitable
and indeterminate when applied to other case scenarios. measures.
• A claim for compensation for wrongful acts done by • Police functions should be separated into investigation
agencies of the State are often pursued before Civil Courts and law and order duties and sufficient strength be
which forms part of the Civil law remedy available to the provided to complete investigations on time and avoid
accused. Even though Private Law or Civil Law remedy delays.
against the State is considered ideal, it is often a • The criminal courts should exercise their available powers
protracted process and getting relief from Courts becomes under Sections 309, 311 and 258 of the CrPC to effectuate
difficult as that could take considerable time and finances the right to speedy trial. In appropriate cases jurisdiction
of the accused. of the High Court under Section 482 of the CrPC and
• Section 211 IPC is of value as it penalises institution of Articles 226 and 227 of the Constitution of India can be
false criminal proceedings or falsely charging a person of a invoked seeking appropriate relief or suitable directions to
crime. deal with and prevent delay in cases.
RECOMMENDATIONS • With undertrial prisoners, adjournments should not be

granted unless absolutely necessary.
• Undertrial prisoners should be lodged in separate
institutions away from convicted prisoners. There should • Order of Dr. A.S. Anand – former Chief Justice of India on
be proper and scientific classification even among holding Special Courts Jails for prisoners involved in petty
undertrial prisoners to ensure that contamination of first offences and willing to confess, should be actively taken up
time and petty offenders into full fledged and hardcore by the High Courts and implemented in all districts.
criminals. • There should be a progressive and massive
Decriminalization of offences so that many of the wrongs,
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which are now given the status of crimes, are dealt with as programmes that would help in managing pendency and
compoundable tortuous wrongs remediable with a claim delay of different types of cases. The High Courts should
for compensation. take an active interest in helping subordinate courts to
• The class of Compoundable offences under the IPC and speed up cases.
other laws should be widened. • There should be an immediate increase in the number of
• Alternatives to imprisonment should be tried out and judges and magistrates in some reasonable proportion to
incorporated in the IPC. the general population. It should be at least 107 judges per
million of the Indian population.
• Remand orders should be self-limiting and indicate the
date on which the undertrial prisoners would be • In case of violation of any fundamental right of the
automatically entitled to apply for bail. prisoner then the state should give adequate
compensation to the victim.
• Computerise the handling of criminal cases and with the
help of the National Informatics Centre, develop
SPICE APPROACH
• A staggering 67% of India’s prison population awaits trial; 55% of these undertrials are Dalits,
tribals, and Muslims.
• Among the total prisoners, 1,649 are woman who are lodged in jails along with 1,942 children
Social dimension • Most undertrials are poorly educated. Around 29% are illiterate and 42% have not completed
secondary education.
• Defendants presumed innocent are subjected to psychological and physical depravation of jail
life, usually under more onerous conditions than are imposed on convicted defendants.
• The provisions contained in Articles 39-A and 22(1) enumerate the constitutional rights of the
accused to be provided free legal-aid services and the services of the counsel of their choice to
the indigent accused persons and this help is implicitly guaranteed under Article 21.
Political/Legal • The Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar observed that
incarceration of undertrials who had virtually spent their period of sentence was clearly illegal
Dimension and a blatant violation of their fundamental rights guaranteed under Article 21 of the Constitution
of India.
• The Court observed that “speedy trial” is a constitutional mandate and the State cannot avoid its
constitutional obligation by pleading financial or administrative inability.
• The National Legal Services Authority (NALSA) has been constituted under the Legal Services
Authorities Act, 1987 to provide free Legal Services to the weaker sections of the society and to
organize Lok Adalats for amicable settlement of disputes.
• In every State a State Legal Services Authority is constituted to give effect to the policies and
directions of the Central Authority (NALSA) and to give legal services to the people and conduct
Institutional Lok Adalats in the State. State Legal Services Authority is headed by the Chief Justice of the State
dimension High Court who is its Patron-in-Chief. A serving or retired Judge of the High Court is nominated as
its Executive Chairman.
• District Legal Services Authority is constituted in every District to implement Legal Aid
Programmes and Schemes in the District. The District Judge of the District is its ex-officio
Chairman.
• Taluk Legal Services Committees are also constituted for each of the Taluk or Mandal or for group
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of Taluk or Mandals to coordinate the activities of legal services in the Taluk and to organise Lok
Adalats. Every Taluk Legal Services Committee is headed by a senior Civil Judge operating within
the jurisdiction of the Committee who is its ex-officio Chairman.
Cultural dimension
• The most productive years are wasted behind bars; this results in what is more than the
Economic sentimental loss of youth for these individuals, but a loss for the nation's economy.
dimension • In several cases, the undertrial happens to be the sole breadwinner, leaving their family in a state
of destitution during their imprisonment.
►WITNESS PROTECTION SCHEME prominent. Provisions in the existing laws are inadequate
to meet the need of time.
The Supreme Court while hearing a case in Prem Chand v
State of NCT of Delhi has directed respective state • Witnesses need to have the confidence to come forward to
governments to implement Draft Witness Protection Scheme, assist law enforcement and prosecutorial authorities. They
2018 framed by the Centre in consultation with the National need to be assured that they will receive support and
Legal Services Authority (NALSA). Witness protection scheme protection from intimidation and the harm that criminal
is necessary as it aims to protect such people who have groups may seek to inflict upon them in attempts to
witnessed a crime and can give evidence in a Court of law. discourage or punish them from co-operating.
However, in some cases, due to harassment or undue • Hence, legislative measures to emphasize prohibition
influence, the witnesses refuse to give evidence in the Court against tampering of witnesses have become the
of law leading to release of the accused due to lack of imminent and inevitable need of the day.
evidence. Thus, a witness protection scheme is very DRAFT WITNESS PROTECTION SCHEME-2018
important not only to ensure justice but also to develop a
Aims and Objectives
free and fair criminal justice system. In this analysis, let us
understand about the aims and objectives of the Draft • The objective of this Scheme is to ensure that the
Witness Protection Scheme, role of state in ensuring investigation, prosecution and trial of criminal offences is
protection of witness in such instances where they are not prejudiced because witnesses are intimidated or
threatened and also measures to be undertaken by the police frightened to give evidence without protection from violent
to ensure trust among witnesses in our criminal justice or other criminal recrimination.
system. • It aims to promote law enforcement by facilitating the
ROLE OF WITNESS protection of persons who are involved directly or
indirectly in providing assistance to criminal law
• The role of a witness is fundamental in the criminal justice
enforcement agencies and overall administration of
system of any country.
Justice.
• They are an indispensable aid in the justice dispensation
• It is aimed to identify series of measures that may be
system in any civilized society.
adopted to safeguard witnesses and their family members
• By giving evidence relating to the commission of an from intimidation and threats against their lives,
offence they bring the criminal justice machinery into reputation and property.
action.
Categories of witness as per threat
• Witnesses, who are considered as the eyes and ears of
• The programme identifies “three categories of witnesses
justice, are turning hostile with unpredictable irregularity.
as per threat perception”:
Witnesses turn hostile often, when high profile
personalities are involved in the commission of crimes, ο Category A: Those cases where threat extends to life of
thereby leading to the failure of the criminal justice witness or family members during investigation, trial or
system. Presently, the vulnerability of the witnesses is very even thereafter.
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ο Category B: Those cases where the threat extends to • The manner in which cases are being prosecuted,
safety, reputation or property of the witness or family investigative and prosecuting machinery, has to be
members during the investigation or trial. improved.
ο Category C: Cases where the threat is moderate and • There should be separation of the investigating authorities
extends to harassment or intimidation of the witness or from the law and order duties.
his family members, reputation or property during the • Support by an effective and efficient investigation is need
investigation, trial or thereafter. of the hour.
• These witnesses can file application for seeking protection • Adequate provisions should be made for constitution of
order before the competent authority of the concerned special investigation teams for speedy investigation.
district where the offence is committed.
• Special legislation is required to protect the rights of
• This competent authority will be chaired by District and witnesses so that they depose freely and without
Sessions Judge, with head of the police in the district as intimidation.
member and head of the prosecution in the district as its
• In criminal cases, witnesses be permitted to record their
member secretary.
evidence in-camera, or by video-links or other audiovisual
• The authority, when it receives an application, has to call techniques. They should be protected from all types of
for a Threat Analysis Report from the ACP/DSP in charge of harassment and treated with dignity.
the concerned Police Sub-Division.
• To save the witnesses from the trouble of appearing
• The scheme also mentions about types of protection before the courts time and again, speeding up of the trial
measures that can be ordered, based on the Threat is also required to prevent the witnesses from turning
Analysis Report and hearing conducted in this regard by around their statements. However, when witnesses
the competent authority. The authority is also empowered change their versions, make false statements with
to order identity protection, change of identity and impunity in the courts, they should be dealt with seriously
relocation of witnesses. for committing the offence of perjury, since it leads to
WAY FORWARD AND STEPS NEEDED conviction of an innocent and acquittal of a criminal.
Witness protection is a dire need of the hour and India needs Failure of system to address perjury has engendered a
to come up with a suitable and comprehensive legislation to callous disregard for the sanctity of court proceedings.
protect the witnesses so as to strengthen the administration Such law needs to be made more stringent and put into
of criminal justice. practice more frequently. Witnesses play a key role in the
proper direction of a criminal case.
The steps need to be taken are:
SPICE APPROACH
• Witnesses are important players in the judicial system, who help the judges in arriving at correct
factual findings.
• Witnesses face life threatening intimidation to himself and to his relatives, he may have to face the
Social dimension
trauma of attending the court regularly, because of this there is a tendency of reluctance in coming
forward and making statement during the investigation and/or testify in courts.
• This hampers the maintenance of law and order in the society.
• The Committee on Reforms of Criminal Justice System under the chairmanship of Dr. Justice V.
S. Malimath, contains a casual statement that a law should be enacted for giving protection to
Political/Legal witnesses and their family members, without specifying any provision or scheme whatsoever.
Dimension • The Criminal Law (Amendment) Act, 2005 has made many important amendments including the
introduction of Section 195A to the Penal Code, whereby threatening or inducing any person to
give false evidence is made punishable. Other changes include amendment of Section 195 of
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Cr.P.C and Section 154 of Evidence.

• In the 198th Report of the Law Commission, a Consultation Paper on Witness Identity Protection
and Witness Protection Programmes’ was prepared. In the Final Report, the Commission identified
three categories of witnesses: (i) victim-witnesses who are known to the accused; (ii) victims-
witnesses not known to the accused (e.g. as in a case of indiscriminate firing by the accused) and
(iii) witnesses whose identity is not known to the accused. Category (i) requires protection from
trauma and categories (ii) and (iii) require protection against disclosure of identity.
• The police force should be given the freedom to take basic measures to protect witnesses like
surveillance, escorting the witness to work and court, assisting with emergency relocation etc.
Measures should be taken by the courts to restrict public access to the witness’s identity including
having a witness testify under a pseudonym.
Institutional • The use of practices such as videoconferencing, teleconferencing, voice and face distortion, and
dimension other similar techniques must be encouraged as well as allowing witnesses to conceal their
address or occupation. Rebuilding trust of the people in the formal system of law is the best form
of witness protection.
• The witnesses should be assured that those who want to testify have, on their side, the police and
an impartial system.
• Witness protection is must as no nation may afford to expose its righteous and morally elated
Cultural dimension citizens to the peril of being haunted or harassed by anti social elements, for the simple reason
that they testified the truth in a court of law.
• Under the scheme, there shall be a Witness Protection Fund operated by the Ministry or
Department of Home Affairs under the State or Union Territory, from which the expenses of
implementation of the Witness Protection Order have to be met. The fund is to be maintained by
the States and Union Territories and shall comprise of:
Economic ο budgetary allocation made by the Annual Budget presented by the State Government;
dimension ο receipts of fines imposed under Section 357 of Code of Criminal Procedure ordered to be
deposited by the courts;
ο donations and contributions from various charitable trust, philanthropist and individual permitted
by the Government;
ο funds contributed under Corporate Social Responsibility.
►NEED OF STRONG JUDICIARY FOR the rights and liabilities of parties is a prerequisite for
business and commerce.
MARKET ECONOMY
Hence, it is rightly said that for the success of market
India has jumped thirty places to break into the top 100 for
economy, Strong judiciary is needed.
the first time in the World Bank’s Ease of Doing Business
STATUS OF PENDENCY OF ECONOMIC CASES IN INDIA
Report (EODB), 2018. The rankings reflect the government’s
reform measures on a wide range of indicators. However, • Delays and pendency of economic cases are high and
India continues to lag on the indicator on enforcing contracts. mounting in the Supreme Court, High Courts, Economic
Tribunals, and Tax Department, which is taking a severe
For the improvement of this, role of judiciary come into play.
toll on the economy in terms of stalled projects, mounting
A clear and certain legislative and executive regime backed by
legal costs, contested tax revenues, and reduced
an efficient judiciary that fairly and punctually protects
investment more broadly.
property rights, preserves sanctity of contracts, and enforces
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• The average age of pending cases across these tribunals is b. For the same, amendments to the Code of Civil
3.8 years. Procedure, Commercial Courts Act and other related
• The creation of tribunals at different points in time did not commercial legislations should be considered. These
alter pendency at the High Courts of the country nor their measures must be buttressed by efforts to train judges,
ability to deal with other economic cases. particularly in commercial and economic cases by
judicial academies.
• The average pendency of tax cases is particularly acute at
nearly 6 years per case. c. Downsizing or removing original and commercial
jurisdiction of High Courts, and enabling the lower
Centre and the States approximately spend 0.08-0.09% of the
judiciary to deal with such cases. Early results from the
GDP on administration of justice, which is very low. In 2017,
Delhi High Court suggest that reducing the size of
India spent about Rs.0.24 per person on the judiciary; the U.S.
original side jurisdiction in 2016 allowed the court more
spent Rs.12 per person.
time to reduce its overall pendency.
The overall impact of rising pendency at Appellate Tribunals,
d. Courts may revisit the size and scale of their
High Courts and the Supreme Court, coupled with the rising
discretionary jurisdictions and avoid resorting to them
use of injunctions and other blunt instruments has led to
unless necessary, to reclaim the envisaged
spiraling of legal expenses of Corporate India.
constitutional and writ stature of the higher judiciary.
HOW JUDICIARY IMPACTS THE ECONOMY? e. Existing judicial capacity ought to be fully utilized.
Examples of this are: affirming a stricter standard of • Substantially increasing state expenditure on the judiciary,
patenting might impact innovation in the pharmaceutical particularly on their modernization. The Government may
industry, an unconstitutional imposition of a tax can hit the consider incentivizing expenditure on court modernization
automobile industry, and a ban on selling liquor near and digitization. This needs to be supported with greater
highways may affect the tourism industry. The shock waves provision of resources for both tribunals and courts.
of the quashing of coal block allocations are still being felt Moreover, legislations (and perhaps even judicial decisions
throughout our banking system as well as power, metal, steel that expand or introduce new jurisdictions) should be
and mining industries. accompanied by judicial capacity and public expenditure
LINK BETWEEN SLOW COURTS AND ECONOMIC memorandums, which adequately lay out the necessary
OUTCOMES provisions required to address increasing judicial
requirements, and ensure their adequate funding. The
• Slow courts increase the cost of enforcing contracts by
amounts required may be negligible but the returns
delaying the payoff of taking an agent to court. If contracts
enormous.
are costly to enforce because cases take years or even
decades to resolve, parties may avoid making investments • Building on the success of the Supreme Court in disposing
or engaging in potentially surplus-generating transactions. tax cases, creating more subject-matter and stage-specific
benches that allow the Court to build internal
• There would be corruption and crony capitalism which
specializations and efficiencies in combating pendency and
would repel ‘market growth and foreign investment
delay.
capital’. Therefore, these are inversely related.
• Reducing reliance on injunctions and stays. Courts may
STEPS NEEDED
consider prioritizing stayed cases, and impose stricter
Some of the following steps may be considered: timelines within which cases with temporary injunctions
• Expanding judicial capacity in the lower courts and may be decided, especially when they involve government
reducing the existing burden on the High Courts and infrastructure projects.
Supreme Court; • Improving the Courts Case Management and Court
a. For a smooth contract enforcement regime, it may be Automation Systems. To free up judicial time, initiatives
imperative to build capacity in the lower judiciary to like the Crown Court Management Services of the UK that
particularly deal with economic and commercial cases, are dedicated to the management and handling of
and allow the High Courts to focus on streamlining and administrative duties, may be considered.
clarifying questions of law.
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SPECIFIC RELIEF (AMENDMENT) ACT of the contract or in case of breach of contract. Let us
understand this by an example - A enters into a contract with
Backgrounder
B to make a building in 20 months. But B does not fulfill the
• India has witnessed economic development across sectors terms of contract and leaves midway. A then can substitute
of the economy since the enactment of the Specific Relief the contract or make another contract with C for the
Act in 1963. completion of the building. It means where the contract is
• These developments have brought in enormous broken due to non-performance of promise by other
commercial activities in India specially post liberalisation contracting party, then the party who suffers by such breach
including foreign direct investments, public private shall have the option of substituted performance through a
partnerships, public utilities infrastructure developments, third party or by his own agency. In the process of
etc. substituted performance, he/she can recover the expenses
• All these commercial activities led to the constitution of and other costs actually incurred, spent or suffered by
different regulatory institutions like Securities Exchange him/her, from the party committing such breach.
and Board of India (SEBI), Competition Commission of • Court not to grant Injunction new section has been
India (CCI), Serious Fraud Investigation Office (SFIO) etc. proposed for infrastructure project contracts which
• Thus, there was a need for a better regulatory regime with provide that the court shall not grant injunction (an order
respect to enforcement of contracts as most of the of the Court) in any case, where it appears to it that
commercial deals hinge on the specificity of terms and granting injunction would cause hindrance or delay in the
conditions of the contract. continuance or completion of the infrastructure project.
• These economic developments have prompted extensive • The Court may engage one or more Experts to assist the
reforms in the related laws to facilitate enforcement of Court on any specific issue involved in the case by taking
contracts, settlement of disputes in speedy manner. their expert opinion.
• These commercial developments have also led to • The Experts shall submit their report to the Court on such
increased commercial litigation in Courts and Tribunals specific issues by providing evidence including production
across India specially relating to enforcement of contracts of documents.
and compensation in case of breach of contract. • The Bill provides for the constitution of Special Courts. The
• Thus, the legislators felt that the 1963 Act was not able to State Government, in consultation with the Chief Justice of
keep pace with the rapid economic development of the the High Court, shall designate one or more Civil Courts as
nation and certain changes were necessary so as to keep Special Courts, within the local limits of the area to
pace with contemporary realities. exercise jurisdiction and to try a suit under this Act in
respect of contracts relating to infrastructure projects. It
Important Provisions of the Bill
further provides for expeditious disposal of cases within
The new Bill provides for Substituted Performance of 12 months from the date on which parties are summoned
Contracts by a third party in case of non-fulfillment of terms by the Court.

SPICE APPROACH
• Strong judiciary will improve dispute settlement time which in turn will lead to growth in economy
Social dimension
and societal development. Common people will suffer less.
Political/Legal • For the improvement in role of judiciary in market economy, bills have to be passed for the
establishment of alternative dispute settlement mechanism consisting of experts in respective
Dimension fields, having powers to declare the judgment with binding mechanism.
• The working of present tribunals has to be improved.

Institutional
• Need to build capacity in the lower judiciary to particularly deal with economic and commercial
dimension
cases
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• It will improve the market culture which may improve the trust in Indian economy and market
Cultural dimension investments in respective fields.
• It will help in decreasing the culture related to crony capitalism.
Economic • Reduced pendency of cases will instill confidence among the business market.
dimension • The flow of foreign investments may improve.
• The Commission also referred Second, Sixth, Fifteenth,
Twentieth and Twenty-sixth Reports of the Parliamentary
►CASSATION BENCH OF SUPREME Standing Committee on Law and Justice which has
COURT repeatedly suggested that in order to promote speedy
justice available to the common man, benches of the
The Law Commission in its 229th Report, in addition to its
Supreme Court have to be established in the Southern,
95th Report, has recommended as under:
Western and North-Eastern parts of the country.
(1) A Constitution Bench be set up at Delhi to deal with
constitutional and other allied issues; and • The Commission in its report favoured the above
reports of Parliamentary Standing Committee
(2) Four Cassation (Zonal) Benches be set up in the Northern
on Law and Justice.
region/ zone at Delhi; the Southern region/ zone at
Chennai/ Hyderabad; the Eastern region/ zone at Kolkata JURISDICTION OF CASSATION BENCH AS RECOMMENDED
and the Western region/ zone at Mumbai to deal with all • The 229th Report has also suggested territorial jurisdiction
appellate work arising out of the orders/ judgments of the of each of these Cassation Benches of Supreme Court to
High Courts of the particular region. be constituted under Article 130 of the Indian
Hereby discussing the different reports of Law Commission Constitution.
on the working of Supreme Court of India. • Article 130 - Seat of Supreme Court - The Supreme Court
COURT OF CASSATION shall sit in Delhi or in such other place or places, as the
Chief Justice of India may, with the approval of the
A court of cassation is a high-instance court that exists in
President, from time to time, appoint.
some judicial systems. Courts of cassation do not re-examine
the facts of a case, they only interpret the relevant law. In this • Northern Zone – Bench to be established in Delhi dealing
they are appellate courts of the highest instance. In this way with the litigation of the States of Uttar Pradesh,
they differ from systems which have a supreme court which Uttarakhand, Rajasthan, Punjab, Haryana, Madhya
can rule on both the facts of a case and the relevant law. Pradesh, Chhattisgarh, Himachal Pradesh, Jammu and
Kashmir, the National Capital Territory of Delhi and the
229TH REPORT OF LAW COMMISSION
Union territory of Chandigarh.
• Eighteenth Law Commission under Justice A R
• Southern Zone – Bench to be established
Lakshmanan (229th Report, 2009)recommended that “a
in Chennai/Hyderabad in order to deal with the litigation
Constitution Bench be set up at Delhi to deal with
of the States of Kerala, Tamil Nadu, Andhra Pradesh,
constitutional and other allied issues”, and “Four Cassation
Karnataka and the Union territories of Puducherry and
Benches be set up in the
Lakshadweep.
ο Northern region/zone at Delhi,
• Eastern Zone – Bench to be established
ο Southern region/zone at Chennai/Hyderabad, in Kolkata dealing with the litigation of the States of West
ο Eastern region/zone at Kolkata and Bengal, Bihar, Orissa, Jharkhand, Assam and the
Northeastern States including Sikkim and the Union
ο Western region/zone at Mumbai
territory of Andaman and Nicobar Islands.
• to deal with all appellate work arising out of the
• Western Zone - Bench to be established
orders/judgments of the High Courts of the particular
at Mumbai dealing with the litigation of the States of
region”
Maharashtra, Gujarat, Goa and the Union territories of
Dadra and Nagar Haveli, and Daman and Diu.
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JUDICIARY
WORKING OF CASSATION BENCH Constitution, matters of national importance and other

• The abovementioned Benches shall act as Cassation references made by the zonal benches to larger benches
Benches to deal with appeals from a High Court in the due to conflict of authority or any other reason.
particular region. • Benches can be set up under the Supreme Court Rules
• The Supreme Court could then deal with constitutional 1966 without much delay as it is under the preview of
issues and other cases of national importance on a day to Supreme Court of India.
day basis since the accumulated backlog of cases would go • Cassation Benches will reduce cost of litigation and reduce
to the respective zones to which they pertain. time taken to dispose of cases.
BENEFITS OF CASSATION BENCH • Cassation bench will also lead to increase in strength of
Supreme Court will be relieved of the backlog of number of Judges in the higher judiciary. This will lead to
accumulated cases which are causing a burden and more recruitment of judges in the higher judiciary.
continuous strain on the resources of the apex court. • All India Judicial Service as prescribed under Article 312 of
• Supreme Court would be free to deal with only the Indian Constitution will have greater chance of coming
constitutional cases such as interpretation of the into effect.
SPICE APPROACH
• It will not only reduce the number of pending cases with the apex court, which is 57,987 as of June
2018, but will also provide litigants from the southern, eastern and western parts of the country an
Social dimension easy access to the highest court.
• It will reduce the hefty transportation cost, a burdensome lodging charge and obviously burn-a-
hole-in-pocket lawyer fees. This will improve the justice delivery system.
• According to the Law Commission - If Article 130 is liberally interpreted, no constitutional

Political/Legal amendment may be required for setting up Cassation Benches in four regions and a Constitution
Bench at Delhi. If it is found that Article 130 cannot be stretched to make it possible to implement
Dimension the recommendations, Parliament should enact suitable legislation/constitutional amendment for
this purpose.
• High Court Benches are established in accordance with the recommendations made by the Jaswant
Singh Commission and judgment pronounced by the Apex Court and after due consideration of a
complete proposal from the State Government and the Chief Justice of the concerned High Court
Institutional alongwith the consent of the Governor of the concerned State. The State Government has to
dimension provide necessary infrastructural facilities to establish a Bench of the High Court away from its
principal seat and to bear the entire expenditure of the High Court and its Bench.
• Hence committees will need to be set up for smooth functioning of benches in other parts of the
nation.
Cultural dimension
Economic It will require huge cost for setting up of infrastructure as well as human resource for the
dimension management of judicial process.
►LOK ADALAT added a new chapter to the justice dispensation system of

this country and succeeded in providing a supplementary
The concept of Lok Adalat is an innovative Indian contribution
forum to the victims for satisfactory settlement of their
to the world jurisprudence. The introduction of Lok Adalats
disputes. This system is based on Gandhian principles.
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INTRODUCTION • An award passed by the Lok Adalat is final and no appeal is

• The advent of Legal Services Authorities Act, 1987 gave a maintainable from it.
statutory status to Lok Adalats, pursuant to the • An award passed by the Lok Adalat can be executed in a
constitutional mandate in Article 39-A of the Constitution court.
of India, contains various provisions for settlement of • The award can be passed by Lok Adalat, only after
disputes through Lok Adalat. obtaining the assent of all the parties to dispute.
• It is an Act to constitute legal services authorities to • Code of Civil Procedure and Indian Evidence Act are not
provide free and competent legal services to the weaker applicable to the proceedings of Lok Adalat.
sections of the society to ensure that opportunities for
• A Permanent Lok Adalat can pass an award on merits,
securing justice are not denied to any citizen by reason of
even without the consent of parties. Such an award is final
economic or other disabilities, and to organize Lok Adalats
and binding. From that no appeal is possible.
to secure that the operation of the legal system promotes
justice on a basis of equal opportunity. Even before the • The appearance of lawyers on behalf of the parties, at the
enforcement of the Act, the concept of Lok Adalat has Lok Adalat is not barred. (Regulation 39 of the Kerala
been getting wide acceptance as People's Courts as the State Legal Services Authority Regulations, 1998.
very name signifies. BENEFITS OF LOK ADALAT
• Settlement of disputes at the hands of Panchayat Heads or The benefits that litigants derive through the Lok Adalats are
tribal heads was in vogue since ancient times. When many.
statutory recognition had been given to Lok Adalat, it was
a) First, there is no court fee and even if the case is already
specifically provided that the award passed by the Lok
filed in the regular court, the fee paid will be refunded if
Adalat formulating the terms of compromise will have the
the dispute is settled at the Lok Adalat.
force of decree of a court which can be executed as a civil
court decree. b) Secondly, there is no strict application of the procedural
laws and the Evidence Act while assessing the merits of the
• The evolution of movement called Lok Adalat was a part of
claim by the Lok Adalat. The parties to the disputes though
the strategy to relieve heavy burden on the Courts with
represented by their advocate can interact with the Lok
pending cases and to give relief to the litigants who were
Adalat judge directly and explain their stand in the dispute
in a queue to get justice. It contains various provisions for
and the reasons therefore, which is not possible in a
settlement of disputes through Lok Adalat.
regular court of law.
SALIENT FEATURES OF LOK ADALAT
c) Thirdly, disputes can be brought before the Lok Adalat
• It is based on settlement or compromise reached through directly instead of going to a regular court first and then to
systematic negotiations the Lok Adalat.
• It is a win – win system where all the parties to the dispute d) Fourthly, the decision of the Lok Adalat is binding on the
have something to gain. parties to the dispute and its order is capable of execution
• It is one among the Alternate Dispute Resolution (ADR) through legal process. No appeal lies against the order of
systems. It is an alternative to “Judicial Justice” the Lok Adalat whereas in the regular law courts there is
always a scope to appeal to the higher forum on the
• It is economical – No court fee is payable. If any court fee is
decision of the trial court, which causes delay in the
paid, it will be refunded.
settlement of the dispute finally. The reason being that in a
• The parties to a dispute can interact directly with the regular court, decision is that of the court but in Lok Adalat
presiding officer, which is not possible in the case of a it is mutual settlement and hence no case for appeal will
court proceeding. arise. In every respect the scheme of Lok Adalat is a boon
• Lok Adalat is deemed to be civil court for certain purposes. to the litigant public, where they can get their disputes
• Lok Adalat is having certain powers of a civil court. settled fast and free of cost.
• The award passed by the Lok Adalat is deemed to be a e) Last but not the least, faster and inexpensive remedy with
decree of a civil court. legal status.
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The system has received laurels from the parties involved in there. In our country, which is developing, has unlike the
particular and the public and the legal functionaries, in developed countries, number of Judges disproportionate to
general. It also helps in emergence of jurisprudence of peace the cases filed and, hence, to alleviate the accumulation of
in the larger interest of justice and wider sections of society. cases, the Lok Adalat is the need of the day.
Its process is voluntary and works on the principle that both CRITICISM
parties to the disputes are willing to sort out their disputes by
• The right to appeal is one of the most basic features of any
amicable solutions. Through this mechanism, disputes can be
sound legal system. It sprouts from the principle ‘to err is
settled in a simpler, quicker and cost-effective way at all the
human’, It recognizes the fact that it is impossible to be
three stages i.e. pre-litigation, pending-litigation and post-
infallible always.
litigation.
• Lok Adalats cannot proceed to pass awards unless the
Overall effect of the scheme of the Lok Adalat is that the
parties to a dispute under its consideration, agrees to the
parties to the disputes sit across the table and sort out their
passing of an award. In such a situation, by agreeing, the
disputes by way of conciliation in presence of the Lok Adalat
parties are estopping themselves from challenging it
Judges, who would be guiding them on technical legal aspects
afterwards. In that case, denial of an appeal provision can
of the controversies.
well be justified. But a Permanent Lok Adalat can proceed
The scheme also helps the overburdened Court to alleviate to dispose of a matter referred to it even without the
the burden of arrears of cases and as the award becomes consent of the parties to such dispute. And the PLA does
final and binding on both the parties, no appeal is filed in the not have to go by the rules of evidence contained in The
Appellate Court and, as such, the burden of the Appellate Indian Evidence Act. Moreover, a party can be drawn to
Court in hierarchy is also reduced. The scheme is not only PLA, despite his wishes.
helpful to the parties, but also to the overburdened Courts to
• In such a situation, denying a chance to appeal may not be
achieve the constitutional goal of speedy disposal of the
in consonance with our most cherished legal
cases. About 90% of the cases filed in the developed
principle: “Justice should not only be done, but should
countries are settled mutually by conciliation, mediation etc.
manifestly and undoubtedly be seen to be done."
and, as such, only 10% of the cases are decided by the Courts
SPICE APPROACH
The object of the Lok Adalat is to provide free and competent legal system to the weaker section of
society to ensure that the opportunities for securing justice are not denied to any citizen by reason
Social dimension
of economic and other disabilities, and to organise Lok Adalats to secure that the operation of the
legal system promotes justice on basis of equal opportunity
The procedures employed in Lok Adalat are flexible and informal in contrast to the formal and rigid
Political/Legal procedures followed in the ordinary process of dispute resolution in courts of law. The system is not
Dimension afflicted with strict application of procedural laws such as Civil Procedure Code (CPC) and Evidence
Law.
Lok Adalat is classified into various levels, which has been described below:
• State Authority: Lok Adalats at the state level will be organized by the Member Secretary of the
State Legal Services Authority, which would constitute benches of the Lok Adalat. Each bench
would include a sitting or retired judge of the High Court in addition to a qualified social worker.
Institutional
dimension • High Court: Lok Adalat benches in the High Court will be constituted by the Secretary of the High
Court Legal Services Committee. Each bench would include a sitting or retired judicial officer and
a qualified social worker.
• District: The Lok Adalat for districts will be organized by the Secretary of the Digital Legal Services
Authority. Each bench would include a sitting/judicial officer and a person engaged in social legal
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activities.
• Taluk: The Lok Adalat for Taluks, as is the case with each of its levels, will be organized by the
Secretary of the Taluk Legal Services Committee. Its bench includes a sitting/retired judicial officer
and a qualified social worker.
• Justice delayed is justice denied but justice hurried is also justice buried. Faster justice comes with
a price of settlement made at the cost of lesser compensation and the petitioner had no time to
claim higher amount which he justly should have got as seen in many cases after which apex
Cultural dimension
court ordered Lok Adalat to be careful about not impairing the right of any party involved in the
issue. Faster and easier justice must not come with the price of injustice which is what falls as a
disadvantage of Lok Adalat.
Economic • The main objectives are to render economical and speedy justice to the disputants, justice
dimension delivery system less cumbersome and easily accessible to the weaker sections of the society.
►LAW COMMISSION REPORT ON CORE PRINCIPLES TO BE FOLLOWED IN TRIBUNAL SYSTEM
TRIBUNALS • Judicial independence - As the tribunals are vested with

judicial powers, there must be a security in tenure,
INTRODUCTION
freedom from ordinary monetary worries, freedom from
• ‘Tribunal’ is an administrative body established for the influences and pressures within (from others in the
purpose of discharging quasi-judicial duties. Judiciary) and without (the Executive).
• The Constitution (Forty-Second Amendment) Act of 1976 • Technical member - However, if the Tribunals are
brought about a massive change in the adjudication of intended to serve an area which requires specialised
disputes in the country. It provided for the insertion of knowledge or expertise, the appointment of Technical
Articles 323-A and 323-B in the Constitution of India, members in addition to judicial members must always be
whereby the goal of establishment of Administrative welcomed, as they can provide an input which may not be
Tribunals by the Parliament as well as the State available with the judicial members.
Legislatures, to adjudicate the matters specified in the sub-
• Uniformity in the appointment system - Since the
clauses is made possible.
Tribunals are entrusted with the duty of adjudicating the
SIGNIFICANCE OF THE ADMINISTRATIVE TRIBUNALS cases involving legal questions and nuances of law,
• The objective behind establishing the ‘Tribunals’ was to adherence to principles of natural justice will enhance the
provide an effective and speedier forum for dispensation public confidence in their working. The Judicial Member
of justice, but in the wake of routine appeals arising from should be a person possessing a degree in law, having a
the orders of such forums, certain issues have been raised judicially trained mind and experience in performing
because such appeals are obstructing the constitutional judicial functions. The objective of having uniformity in the
character of the Supreme Court and thus, disturbing the appointment system can be achieved if the appointments
effective working of the Supreme Court as the appeals in are made to the respective posts as indicated below:
these cases do not always involve a question of general i. A person is or has been a Supreme Court Judge or Chief
public importance. The Supreme Court is primarily Justice of the High Court as Chairman.
expected to deal with matters of constitutional importance
ii. A person who has been a judge of the High Court as
and matters involving substantial question of law of
Vice Chairman.
general public importance. Due to overburdening, the
iii. A person who has been a High Court judge or an
Supreme Court is unable to timely address such matters.
Advocate who is eligible to be appointed as a Judge of
• Most of these tribunals/authorities are a kind of ‘Court’
High Court as Judicial Member
performing functionswhich are of ‘judicial’ as well as ‘quasi-
• Vacancy - In order to avoid any prolonged vacancy in any
judicial’ nature having the trappings of a Court.
of the posts, the process of appointment should start well
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in advance in order to ensure that the vacancy is filled up carrying the scale of pay of an Additional Secretary to the
without any avoidable delay, as the general experience is Government of India, at least for a period of three years.
that the working of the Tribunals is affected because of the • Expert Member/Technical Member/Accountant Member
non-filling up of the vacancies in time. Therefore, the should be a person of ability, integrity and standing, and
process of selection should be initiated as early as having special knowledge of and professional experience
possible, preferably within six months prior to the of not less than fifteen years, in the relevant domain. (can
occurrence of a vacancy be increased according to the nature of the Tribunal).The
RECOMMENDATIONS OF THE LAW COMMISSION appointment of Technical/Expert members in addition to
• In case of transfer of jurisdiction of High Court to a the judicial members be made only where the Tribunals
Tribunal, the members of the newly constituted Tribunal are intended to serve an area which requires specialised
should possess the qualifications akin to the judges of the knowledge or expertise or professional experience and the
High Court. Similarly, in cases where the jurisdiction and exercise of jurisdiction involves consideration of, and
the functions transferred were exercised or performed by decisions into, technical or special aspects.
District Judges, the Members appointed to the Tribunal • While making the appointments to the Tribunal, it must be
should possess equivalent qualifications required for ensured that the Independence in working is maintained.
appointment as District Judges. The terms and conditions of service, other allowances and
• There shall be uniformity in the appointment, tenure and benefits of the Chairman shall be such as are admissible to
service conditions for the Chairman, Vice-Chairman and a Central Government officer holding posts carrying the
Members appointed in the Tribunals. While making the pay of Rs.2,50,000/-, as revised from time to time.
appointments to the Tribunal, independence shall be • The terms and conditions of service, other allowances and
maintained. benefits of a Member of a Tribunal shall be such as are
• There shall be constituted a Selection Board/Committee admissible to a Central Government officer holding posts
for the appointment of Chairman, Vice-Chairman and carrying the pay of Rs.2,25,000/-, as revised from time to
Judicial Members of the Tribunal, which shall be headed by time.
the Chief Justice of India or a sitting judge of the Supreme • The terms and conditions of service, other allowances and
Court as his nominee and two nominees of the Central benefits of Presiding Officer/Member of a Tribunal (to
Government not below the rank of Secretary to the which the jurisdiction and functions exercised or
Government of India to be nominated by the Government. performed by the District Judges are transferred) shall be
For the selection of Administrative Member, Accountant such as are admissible to a Central Government officer
Member, Technical Member, Expert Member or Revenue drawing the corresponding pay of a District Judge.
Member, there shall be a Selection Committee headed by • Vacancy arising in the Tribunal should be filled up as early
the nominee of the Central Government, to be appointed as possible by initiating the procedure well in time, as early
in consultation with the Chief Justice of India. as possible, preferably within six months prior to the
• The Chairman of the Tribunals should generally be the occurrence of vacancy.
former judge of the Supreme Court or the former Chief • The Chairman should hold office for a period of three
Justice of a High Court and Judicial Members should be the years or till he attains the age of seventy years, whichever
former judges of the High Court or persons qualified to be is earlier. Whereas Vice-Chairman and Members should
appointed as a Judge of the High Court. hold the office for a period of three years or till they attain
• Administrative Members, if required, should be such the age of sixty seven years whichever is earlier. It will be
persons who have held the post of Secretary to the appropriate to have uniformity in the service conditions of
Government of India or any other equivalent post under the Chairman, Vice-Chairman and other Members of the
the Central Government or a State Government, carrying Tribunals to ensure smooth working of the system.
the scale of pay of a Secretary to the Government of India, • The Tribunals must have benches in different parts of the
for at least two years; OR held a post of Additional country so that people of every geographical area may
Secretary to the Government of India, or any other have easy Access to Justice. Ideally, the benches of the
equivalent post under the Central or State Government, Tribunals should be located at all places where the High
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Courts situate. In the event of exclusion of jurisdiction of such as ICC, LIAC, SIAC, HKIAC are playing key role in
all courts, it is essential to provide for an equally effective resolution of disputes through arbitration.
alternative mechanism even at grass root level. This could • Hence Despite the amendments proposed under 2015 Act,
be ensured by providing State- level sittings looking to the certain practical difficulties still remained. Thus a High
quantum of work of a particular Tribunal. Once that is Level Committee (HLC) under the Chairmanship of Justice
done, the access to justice will stand ensured. B. N. Srikrishna was formed to-
ο examine the effectiveness of existing arbitration
mechanism by studying the functioning and
►ARBITRATION COUNCIL OF INDIA
performance of Arbitral Institutions in India
CONTEXT
ο devise a road map to promote institutionalized
• The Union Cabinet has approved the constitution of arbitration mechanisms in India
Arbitration Council of India (ACI) which would grade
ο evolve an effective and efficient arbitration eco-system
institutions involved in alternative dispute resolution,
for commercial dispute resolution.
accredit arbitrators and take necessary steps to promote
and encourage arbitration, conciliation, mediation and THE RECOMMENDATIONS OF THE COMMITTEE INCLUDED
other alternative dispute resolution mechanism. • Setting up an Autonomous Body, styled the Arbitration
• ACI has been institutionalised on the recommendations of Promotion Council of India (APCI), having representatives
a High Level Committee formed under the Chairmanship from all stakeholders for grading arbitral institutions in
of Justice B.N. Srikrishna. India including recognition of professional institutes
providing for accreditation of arbitrators
• The Arbitration and Conciliation (Amendment) Bill,
2018 had been introduced but due to the dissolution of • Hold training workshops and interact with law firms and
16th Lok Sabha, the bill lapsed. However, hereby law schools to train advocates with interest in arbitration
discussing the features and recommendations of the with a goal to create a specialist arbitration bar comprising
B.N Srikrishna committee. of advocates dedicated to the field.
WHAT IS ARBITRATION? • Creation of a specialist Arbitration Bench to deal with such

Commercial disputes, in the domain of the Courts.
• Arbitration is a method for settling disputes privately, but
its decisions are enforceable by law. Arbitration offers • National Litigation Policy (NLP) must promote arbitration
greater flexibility, prompt settlement of national and in Government Contracts.
international private disputes and restricted channels of • Creating the post of an ‘International Law Adviser’ (ILA)
appeal than litigation. who shall advise and coordinate with the government on
• Arbitration in India has been riddled with issues including dispute resolution strategy for disputes arising out
excessive cost, protracted proceedings leading to of Bilateral Investment Treaties (BIT).
extensive delays. In order to remedy such issues and
create greater confidence in parties to choose India as a
seat for arbitration, the Arbitration & Conciliation ►COMMERCIAL COURTS AND
(Amendment) Act, 2015 was introduced, bringing into the DIVISIONS IN HIGH COURTS
realm several significant changes in the Arbitration &
The government has constituted Commercial Courts at the
Conciliation Act, 1996 (the Act).
district level, Commercial Division and Commercial Appellate
• A noteworthy motive for bringing about the Amendment Division in the High Courts for adjudicating commercial
Act, 2015 was to make arbitration a more preferred mode disputes of specified value
of settlement of disputes by making it cost effective and
WHO RECOMMENDED?
providing a fixed time period for disposal of disputes.
• LAW COMMISSION in its 245th Report looked into the
• The Amendment Act, 2015, however, failed to address
issues of creation of additional courts for elimination of
certain issues including importance of institutional
delays, speedy clearance of arrears and deduction in cost.
arbitrations at a time when internationally, institutions
Among other suggestions, the Commission also suggested
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ο Increasing judicial strength to address the issue of ο Chief Justice of High Court may constitute Commercial
backlog; Division of High Court having one or more Benches
ο Increasing age of retirement for Subordinate Judge to
consisting of a single Judge.
62 years; ο The Chief Justice of the High Court shall nominate such
ο Creation of Special Courts for traffic/police challan

Judges of the High Court who have experience in
cases; dealing with commercial disputes to be Judges of the
Commercial Division.
ο Periodic assessment by High Courts to address judicial
ο Commercial Appellate Division Chief Justice of High
needs;
Court shall constitute Commercial Appellate Division
• Even NITI AAYOG in its Three Year Action Agenda has
having one or more Division Benches.
suggested shifting large sections of workload out of the
ο Further, all cases of commercial disputes of value of Rs
regular Court system. Thus, the Parliament enacted
Commercial Courts, Commercial Division and Commercial 1 crore or more including cases under
Appellate Division of High Courts Act, 2015 to adjudicate ο The Arbitration and Conciliation Act, 1996 pending in
commercial disputes of specified value. Civil Court or High Court in any area shall be transferred
WHAT CONSTITUTES COMMERCIAL DISPUTES? to Commercial Court or Commercial division of High
Court.
Any dispute related to:
ο Any person aggrieved by the decision of the
• Transactions between merchants, bankers, financiers,
Commercial Court or Commercial Division of a High
traders, etc. dealing with mercantile documents,
Court may appeal to the Commercial Appellate Division
partnership agreements, intellectual property rights, etc.
of that High Court within a period of 60 days from the
• Export or import of merchandise or services, admiralty and date of judgment.
maritime law.
BENEFITS
• Construction and infrastructure contracts, including
• It will streamline cases related to commercial disputes and
tenders.
help in speedy resolution of such cases through Case
• Agreements relating to immovable property used Management Hearings. Case Management is a judicial
exclusively in trade or commerce. process where the Judge identifies issues of facts and laws
• Distribution and licensing agreements, management and in disputes, provides a strict timeframe for speedy disposal
consultancy agreements, joint venture agreements, of case and also explores alternative methods to settle
shareholders agreements, etc. disputes. Case Management hearing is generally referred
in cases of International Arbitration.
• Arbitration involving commercial disputes including
international arbitration which are filed in Civil Courts/High • It will effectively help in reducing the burden of cases at
Courts of value of more than Rs. 1 crore. the level of High Court.
WHAT IS SPECIFIED VALUE? • Speedy disposal of cases will help in improving compliance
and in enforcing contracts.
Specified Value in relation to a commercial dispute shall refer
to such cases - whose value of the subject matter is not less • Ease of doing business: Such enforcement of contracts will
than Rs. 1 crore, or such higher value, as may be notified by also help in improving India’s ease of doing business
the Central Government. rankings as it will inspire confidence in the business
fraternity on India’s capability to handle and resolve
WHAT ARE THE TYPES OF COURTS CREATED?
commercial disputes in a given timeframe.
• Commercial Courts State government in consultation with
• It will help in creating a specialist cadre of Judges dealing
High Courts can set up Commercial Courts at District level
with Commercial disputes.
and specify its territorial jurisdiction.
• It will improve judicial infrastructure at the level of district
• Commercial Division of High Court
Court as well as High Court by providing adequate training
facilities including special seminars.
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►NITI AAYOG ON JUSTICE REFORM • This will require a complete overhaul of the present
procedural laws mainly Code of Civil procedure, 1908
SYSTEM which has not undergone any significant reform since the
A systematic and structural reform of the entire judicial year 2002.
system is the need of the hour. In this perspective, let us
• The Code of Criminal Procedure and Indian Evidence Act
understand broadly the concept of Justice System Reform as
shall be amended to incorporate use of gathering of
proposed by NITI Aayog in its Three Year Action Agenda
evidence through forensic science. It will improve evidence
document.
gathering on scientific grounds which will further reduce
There are three areas where Justice Reform System is the elements of doubt in serious criminal offences.
required namely:
• It will also increase the probability of finding the accused
through a process based on scientific lines. This will
A. STATUTORY & ADMINISTRATIVE LAW REFORM
effectively enhance the criminal jurisprudence in our
The first step in this direction will be to weed out old country and also raise awareness among officials and
dysfunctional legislations both at the Centre and at State citizens alike.
level.
REFORM LAND OWNERSHIP LAWS
CREATING SINGLE REPOSITORY
• In India majority of the cases pending at different layer of
• At the state level, all states need to create a Single judicial system pertains settlement of disputes pertaining
Repository of all existing state laws, rules and regulations to ownership/succession/inheritance or transfer of land
of various regulatory bodies and executive agencies. and related cases.
• Once, all such laws are aggregated at one such place, they • Difficulty in establishing ownership has a chain effect on
should be further re-arranged as per their subject matter. other economic activity pertaining to such land and also
This subject-wise compilation of laws will help the experts affects the people involved in such disputes.
to address the problems of over regulation in a structured
• Thus, maintenance of land records needs to be done on
and coherent manner.
more scientific and precise grounds. There needs to be
REPEAL OF REDUNDANT LAWS uniformity in land measurement process through out the
• At the Union level, the government must repeal laws which country. This will help in reducing the burden of land
have already been suggested by Malimath Committee and related disputes on our judicial system.
Law Commission Reports. In this respect, the government
of India has identified roughly 1800 laws which need to be B. JUDICIAL SYSTEM REFORM
repealed. JUDICIAL PERFORMANCE INDEX
• The Government in 2014 constituted the Ramanujam • Formation of such an index will help in keeping track of
Committee to identify central government statutes ready performance of cases at lower courts and suggest
for repeal. In India, a law remains on record and alive measures to reduce delay.
unless specifically removed.
• This will require fixing non-mandatory timeframe for
• Such process of repealing defunct and redundant laws different type of cases (matrimonial/murder/land related
shall also be initiated by State Government. In this respect disputes/service matters etc.) as broad guidelines to
Centre for Civil Society (CCS) has now brought out Repeal benchmark delayed cases.
Law Compendiums for five states — Chhattisgarh (25
• This will help in knowing:
statutes), Telangana (26 statutes), Uttar Pradesh (37
1. How long cases have been pending;
statutes), Maharashtra (21 statutes) and Karnataka (24
statutes). 2. What percentage of cases have been delayed; and
CHANGES IN CRIMINAL JUSTICE & PROCEDURAL LAWS 3. How many cases were disposed in the last year
compared to the year before (eg. Comparison of cases
• Law Commission in its 255th Report had suggested to
disposed in the year 2017 and 2016).
change from the present litigation driven outlook to a
judge driven outlook in line with global practice.
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• This will further promote the concept of ‘competitive • It creates a separate commercial division in High Courts to
judiciary’ as every Lower Courts will be indexed on their hear out cases specially related to commercial disputes
performance. involving transactions of merchants, bankers, financiers
• The High Courts in such instances can take note of and traders such as those relating to mercantile
deficiencies and flaws related to justice delivery system in documents, partnership agreements, contractual
the Lower Courts as they are within the administrative obligation etc.
jurisdiction of High Courts under Article 227 of the Indian • Law Commission in it’s 255th report has suggested to use
Constitution. these special courts as it will free the regular courts and
INTRODUCTION OF ADMINISTRATIVE CADRE can utilise resources to tackle more routine cases. Special
Courts can also be dedicated to handle cases of traffic
• There is a need to create a separate administrative cadre
challan and regular Courts must be freed from such cases
in the judicial system. It will relieve the Judges who are also
as it will further free them up from daily chores.
involved in administrative capabilities to take care of the
day to day functioning of High Courts as well as Lower C. POLICE REFORMS
Courts under Article 227.
STATE LEVEL LEGISLATIVE REFORM
• Handling administrative responsibilities by Judges reduce
• Public Order and Police are under List II - State List of the
time available for dispensing cases pending in the Court
Seventh Schedule. Thus, states should be encouraged with
which includes time for hearing cases and writing
fiscal incentives to introduce important legislative reform
judgments.
in their Police Acts.
STREAMLINE JUDICIAL APPOINTMENTS
• Most of the police Acts are based on the archaic Police Act
• Step must be taken to ensure availability of judicial of 1861. Thus, there is a need to change with time.
statistics to determine the requirement and adequacy of
judicial manpower as well as infrastructure required to • The Model Police Act, 2015 can serve as a basis for
handle case burden. such police reform as it modernise the mandate of
the police, puts in place a governance mechanism
• This will help in identifying number of vacancies at each
which is relatively insulated from political
level of the judicial system and filling them through
interference and provides for measurement and
evaluation based process.
tracking of police performance.
• Creation of Special Courts will also require Judges having
ADMINISTRATIVE & OPERATIONAL REFORM
certain specialist background. The appointments must also
take care of Judge’s specialisation either in their previous • A Task Force must be created under Ministry of Home
tenure or during their academic career. Affairs (MHA) to identify non-core functions of the police
force which can be outsourced to save manpower. Such
• In this regard the Parliament must deliberate on the
outsourcing will also help in creating further employment
introduction of All India Judicial Service (AIJS). It will be a
in the system.
merit based all India examination and will attract the best
legal minds of the country for a respected and coveted • Functions such as serving Court summons, Address
post in Indian Judiciary. verification for Passport, Job Verification can be
outsourced to private agents or other government
• AIJS also finds a mention in Article 312 of the Constitution
departments. x This will not only reduce workload of police
of India.
but will give them more time to investigate crimes and
SHIFTING COURT WORKLOADS THROUGH CREATING gather evidence on scientific basis.
SPECIAL COURTS
• The police-to-population ratio should be increased to
• Commercial Courts, Commercial Division and Commercial reach United Nations norm of 222 personnel per lakh
Appellate Division of High Courts Act, 2015 which provides population in the next few years. A three-year target can
for adjudication of commercial disputes shall be be worked out by the MHA in consultation with respective
implemented. state governments.
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• States shall be encouraged to ensure increase of importance, or where the Court is being asked to depart
representation of women in police force across India. MHA from its earlier decision, etc.
must encourage greater participation of women in the • In Japan, the number of judges in its Supreme Court is 15
work force with a target of achieving 30% women among that generally sits in the panel of five judges. This again
new recruits.’ leaves a constrained space for the Chief Justice to decide
MASTER OF ROSTER the matters to be heard by his puisne judges. The Court
may sit en banc if a matter of Constitutional importance is
• The ‘Master of Roster’ refers to the administrative power of
to be decided or if a previous decision of the Supreme
the Chief Justice of India and the Chief Justices of the High
Court is to be overturned.
Courts to allocate the matters that their brother and sister
judges shall be hearing, respectively.
• It means that the Chief Justice of India has this exclusive ►CRITICAL ANALYSIS OF CAPITAL
administrative authority to decide the allocation of cases
brought or pending before the Supreme Court to his/her
PUNISHMENT
fellow judges. Capital punishment (also known as the ‘death penalty’) is the
• The same authority extends to the Chief Justices of the execution of a person by the state following a judicial
High Courts. No, other puisne judges have any say in this process.
matter, as per the established convention. There are supposed to be three main reasons for awarding
• When the Chief Justice of India and the Chief Justices of the death sentence: „
High Courts decide the roster or allocation of cases to their • Mainly, the death sentence is awarded as retribution for
puisne judges or Benches, they do so under the a heinous crime, usually involving killing somebody. This
administrative authority entrusted to them. concept is clearly reflected in the “eye for an eye”
• In crux, a roster declares what work is assigned to High concept of the medieval days. Gandhi had this to say
Court and Supreme Court judges. ‘Master of the Roster’ about it - “If we follow the axiom an eye for an eye, we
refers to the privilege of the Chief Justice to constitute would all be blind”.
Benches to hear cases.
• Another reason is that the person is considered to be so
• Therefore, the Chief Justice of India and the Chief Justices dangerous to society that the society will not be safe if he
of the High Courts enjoy and exercise both, the judicial as is allowed to live.
well as the administrative power.
• A third reason is that death sentence given to criminals will
• As consequence of master of roster, survival of the Court act as a deterrent for others in the society.
as an institution is dependent entirely upon the character
of the individual as chief justice. PRISONERS SENTENCED TO DEATH IN 2018
MASTER OF ROSTER: THE USA, UK, AND JAPAN The 162 death sentences imposed by trial courts in 2018 is
the highest in a calendar year since 2000. The year also
• The Supreme Court of the United States sits and hear
witnessed the legislative expansion of the death penalty for
the matters en banc. This means that all the nine judges of
non-homicide offences, most prominently for sexual violence
the Supreme Court of the United States sit together to
hear a case, with the circumstantial exception of a judge against children.
being ill or if he decides to recuses himself from the However, the Supreme Court moved in the opposite
matter. This leaves no discretion for the Chief Justice to direction, commuting 11 out of the 12 death sentence
decide the allocation of judicial hearings. cases it decided in 2018.
• In the United Kingdom, the position is something With 22 death sentences, Madhya Pradesh used the death
different. There are a total number of 12 judges in the UK’s penalty the most in 2018. This was a dramatic increase (over
Supreme Court, and they often sit in the panel of five that 4 times) compared to 2017 when 6 persons were sentenced
ultimately leaves minimal discretion for the Chief Justice to to death in Madhya Pradesh.
decide the roster. Here also, the Court may sit en banc in
case of matters concerning great Constitutional and public
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The government in Madhya Pradesh had consistently pushed • It does not deter crime: Countries who execute
for punishing child sexual assault with the death penalty and commonly cite the death penalty as a way to deter people
the 2018 IPC amendments to the IPC introducing the death from committing crime. This claim has been repeatedly
penalty for the rape of girls below 12 years has been used discredited, and there is no evidence that the death
most in Madhya Pradesh. penalty is any more effective in reducing crime than life
imprisonment.
SENTENCING IN CAPITAL OFFENCES – GEOGRAPHICAL
VARIATIONS • It is discriminatory. The weight of the death penalty is
disproportionally carried by those with less advantaged
The NCRB (National Crime Record Bureau) data cited
socio-economic backgrounds or belonging to a racial,
above also points to geographical variations. When broken
ethnic or religious minority. This includes having limited
down by state, the rate of imposition of death sentences as a
access to legal representation, for example, or being at
percentage of the rate of convictions for murder for the
greater disadvantage in their experience of the criminal
period 2004-12, shows significant disparity by state.
justice system.
Compared to the rest of the country, a murder convict in
• Time consuming process: The death penalty is time-
Kerala is about twice as likely to get the death sentence; a
consuming and expensive if there are extensive legal
murder convict in Jharkhand is 2.4 times as likely to get the
processes, and so amounts to two punishments, a long-
death sentence compared to the rest of the country. This
term prison sentence and an execution.
number for Gujarat is 2.5 times, for West Bengal 3 times, for
Karnataka 3.2 times, for Delhi 6 times, and for Jammu and There were 371 prisoners on the death row in India by end
Kashmir 6.8 times. December 2017 with the oldest case from 1991, 27 years
Though Uttar Pradesh sends the most number of persons to ago, according to the Death Penalty in India report published
the death row, but as a proportion of the conviction rate for in January 2018.
murder, it is about par with the national average. Karnataka Among the prisoners whose mercy petitions were rejected
was the second largest contributor to the death row in this by the President of India, the median time spent in prison
period, and its death sentence rate was 3.2 times the national under trial was 16 years nine months, and median time
average. under sentence of death was 10 years five months.
REASONS TO ABOLISH THE DEATH PENALTY The longest time spent by a prisoner in jail in such cases was
• Moral argument: There is a reasoned view that when 25 years, and the longest time spent on death row was 21
man cannot give life, he has no right to take away life. Man years one month.
should not interfere in god’s domain.
LAW COMMISSION RECOMMENDATIONS ON DEATH
• Guidelines not defined: There are often no clear-cut PENALTY
guidelines regarding whom to award death sentence. As
The commission made the following recommendations
per Indian law, it has to be given in rarest of rare
cases. In practice, it is not defined what is “rarest of the • The Commission recommended various provisions for
rare”. Courts act rather arbitrarily in arriving at such police reforms, witness protection scheme and victim
decision. „ compensation scheme.
• Court verdicts are not fool-proof: Innocents may be • The Commission felt that time has come for India to move
given death penalty by the courts. Death sentence given by towards abolition of the death penalty.
a lower court may be dispended with by a higher court. • The Commission recommended that the death penalty be
However, innocence may be discovered after a long time. abolished for all crimes other than terrorism related
If the person has already been hanged, he can’t be brought offences and waging war.
back to life even if proved innocent.
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SPICE APPROACH
It has been seen that the families of those who have been awarded capital punishment suffer from
Social dimension social ostracization. Government should ensure that no punishment or discrimination should be
meted out to those who have not committed any crime.
Recently, many incidents about atrocities against women came to light. Indian society is shocked to
Political/Legal see that girls as young as 2-3 years have also suffered. This has led to a debate that those who
commit heinous crimes against women (and children) should be awarded capital punishment as
Dimension these people are a threat to the society. Recent updates in POCSO are also a result of this
awareness.
India has inherited many institutes from the British. Our mechanism to deliver justice is also a part of
Institutional
that. However, we need to understand that we need to revamp the system that was primarily aimed
dimension
at exploiting, torturing and threatening the Indians.
Cultural dimension
Economic
dimension
►NEED FOR PRISON REFORMS IN wrongdoers that if he commits any crime or illegal act, he
will be liable to be punished as the example is being set in
INDIA
the society.
A “Prison” or “Jail" is a facility in which individuals are forcibly
• Punishment creates the state of affair of incapacitation
confined and denied a variety of freedoms under the
for the criminals because it restrains the criminals from
authority of the State as a form of punishment. The most
doing further crimes meaning thereby the confinements of
common use of prisons as part of the criminal justice system,
prisoners creates disabilities of criminalsfrom committing
is in which individuals are officially charged with or convicted
further crimes
of crimes are confined to a Jail or Prison until they are either
brought to trial to determine their guilt or complete the • Punishment is a device by which the values codified in
period of incarceration they were sentenced to, after being law as well as in traditions of the society are
found guilty at their trial. reestablished in the minds of people.
The management and administration of Prisons falls • The object of punishment isto reform the accused by
exclusively in the domain of the State Governments, and is keeping him away from the society for specific period and
governed by the Prisons Act, 1894 and the Prison Manuals of providing the atmosphere for him so that he can realise
the respective State Governments. Thus, States have the his own guilt and correct himself along with the help of jail
primary role, responsibility and authority to change the machinery and when he is to be rehabilitated in the
current prison laws, rules and regulations. society, he can be proved as a real gentleman who may
respect the norms, traditions and laws of the society.
Hereby discussing the status of prisons in India and reforms
needed. MAJOR PROBLEMS OF PRISONS RELEVANT TO INDIA
OBJECTIVES OF PRISON • Overcrowding
• Deterrence is a very common and primary reason for the Congestion in jails, particularly among undertrials has been a
punishment.Punishment is essential to create a fear source of concern. India’s prisons are overcrowded with an
complex in the society and specifically in the minds of occupancy ratio of 14% more than the capacity. More
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than two-thirds of the inmates are undertrials. available at the point when many of them need such
Chhattisgarh and Delhi are among the top three in the list assistance.
with an occupancy ratio of more than double the capacity. • Abuse of prisoners
• Lack of resources Physical abuse of prisoners by the guards is another chronic
While 33% of the total requirement of prison officials problem in the prison of India. Some countries allowed
still lies vacant, almost 36% of vacancy for supervising continuationof corporal punishments and the routine uses of
officers is still unfulfilled. Delhi’s Tihar jail ranks third in leg irons, fetters, shackles, and chains. In many prison
terms of a severe staff crunch. The manpower recruited systems in India, the unwarranted beatings are an integral
inside this prison is almost 50% short of its actual part of the prison life. Women prisoners in Indian Prison are
requirement. As the nation’s capital, Delhi has the particularly vulnerable for the custodial sexual abuse.
most over-crowded jails and suffers from acute shortage of RECENT STEPS IN PRISON REFORMS
prison guards and senior supervisory staff. States like Uttar
The Ministry of Home Affairs has recently approved a New
Pradesh, Bihar and Jharkhand have the most scantily
Prison Manual 2016, which aims at uniformity in laws, rules
guarded jails, seeing over 65% staff vacancies
and regulations governing the administration of prisons and
among jailers, prison guards and supervisory levels.
the management of prisoners across India.
In the absence of adequate prison staff, overcrowding of
The new manual has given special attention on access to
prisons leads to rampant violence and other criminal
free legal services (Article 39A of the Indian Constitution),
activities inside the jails.
the needs of women prisoners, rights of prisoners sentenced
• Unsatisfactory living conditions to death, modernization and computerization of prisons,
The overcrowding in the prisons leads itself to unsatisfactory provisions for children of women prisoners, inspection of
living conditions such as “appalling” sanitary facilities and prisons, etc.
a shortage of medical staff. In India, an average of US$ 333 GUIDELINES INCLUDE:
(INR 10 474) per inmate per year was spent by prison
• Under Trial Review Committee to be set up in each
authorities during the year of 2005, distributed under the
district;
heads of food, clothing, medical expenses, vocational &
educational, welfare activities and others. • Earliest release of under trials as per the provision of law;
• Lack of legal aid • Empaneling competent lawyers for the under trials;
In India, legal aid to those who cannot afford to retain the • Improvement in the living conditions of jails specially
counsel which is only available at the time of trial and not for women;
when the detainee is brought to the remand court. Since the • Management Information System to be in place in all jails;
majority of prisoners, those are in lock up as well as those in and
prisons have not been tried, the absence of legal aid until the
• Annual review of the implementation of the Model
point of trial reduces greatly the value of the country’s system
Prison Manual 2016.
of legal representation to the poor. The lawyers are not
SPICE APPROACH
Social dimension
Political/Legal Judicial system in India is under tremendous stress. There are around 30 lakh cases stuck in various
courts and this has led higher number of under trials in India. In the current mechanism, prisons in
Dimension
India are over crowded as there is no mechanism to offer any kind of relief for under trials especially
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for petty crimes. We need a strong political will to implement reforms in the prison and some
measures are also needed in our judiciary as well.
India has acquired many bodies and institutions as legacy from the British. Prison system is also one
such mechanism that we have got. However, the prison system that British gave to us was primarily
Institutional
designed to thwart the freedom struggle in India and keep India as part of British empire. After
dimension
establishment of democracy of India there were very few police and prison reforms and hence,
prison system suffered and is still run the way British used to run it.
Cultural dimension
Prison are always considered as a burden on exchequer. However, there are many examples like
Tihar Jail Products which challenges this idea. One more important change that we need is that
Economic prison should not be limited to a system of punishment but also a correction facility. If we can
dimension provide meaningful skill enhancement to the prisoners then we can utilize that fund to improve
conditions at jails. Moreover, many crimes are rooted in poverty. If inmates are trained in skills that
can give them meaningful employment, they may choose a life of dignity and not of crime.
►PUBLIC INTEREST LITIGATION 3. It must not be false litigation by persons having vested
interests.
The words `Public Interest' mean "the common well being or
public welfare and the word 'Litigation' means "a legal action A Public Interest Litigation can be filed only against a State
including all proceedings therein, initiated in a court of law and Central Government, Municipal Authorities, and not any
with the purpose of enforcing a right or seeking a remedy." private party. However a "Private party" can be included in
Thus, the expression `Public Interest Litigation' means "some the Public Interest Litigation as a "Respondent", after making
litigation conducted for the benefit of public or for removal of the concerned State authority a party.
some public grievance." The practice is known as ‘Social FEATURES OF PUBLIC INTEREST LITIGATION
Action Litigation’ in the US. (a) Remedial in Nature: It has changed the procedural
Notably two justices of the Supreme Court, Justices V. R. nature of the Indian law into dynamic welfare one.
Krishna Iyer and P. N. Bhagwati recognized the possibility of (b) Representative Standing: It can be seen as a creative
providing access to justice to the poor and the exploited expansion of the well-accepted standing exception which
people by relaxing the rules of standing. The first reported allows a third party to file a habeas corpus petition on the
case of PIL in 1979 focused on the inhuman conditions of ground that the injured party cannot approach the court
prisons and under trial prisoners in himself. And in this regard the Indian concept of PIL is
HussainaraKhatoon& others v. State of Bihar, the PIL much broader in relation to the American.
was filed by an advocate on thebasis of the news item
(c) Citizen standing: The doctrine of citizen standing thus
published in the Indian Express, highlighting the plight of
marks a significant expansion of the court’s rule, from
thousands of undertrialprisoners languishing in various jails
protector of individual rights to guardian of the rule of law
in Bihar.
wherever threatened by official lawlessness.
A PIL CAN BE FILED WHEN THE FOLLOWING CONDITIONS
(d) Non-adversarial Litigation: Public interest litigation is a
ARE FULFILLED
totally different kind of litigation from the ordinary
1. There must be a public injury and public wrong caused by traditional litigation which is essentially of an adversary
the wrongful act or omission of the state or public character where there is a dispute between two litigating
authority. parties, one making claim or seeking relief against the
2. It is for the enforcement of basic human rights of weaker other and that other opposing such claim or resisting
sections of the community who are exploited, ignorant and such relief”.
whose fundamental and constitutional rights have been
violated.
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FACTORS THAT HAVE CONTRIBUTED TO GROWTH OF PIL: CRITICAL ANALYSIS OF PIL

The factors are: • In the first phase—which began in the late 1970s and
• The character of the Indian Constitution. Unlike Britain, continued through the 1980s—the PIL cases were
India has a written constitution which through Part III generally filed by public-spirited persons. Most of the
(Fundamental Rights) and Part IV (Directive Principles of cases related to the rights of disadvantaged sections of
State Policy) provides a framework for regulating relations society such as child labourers, bonded labourers,
between the state and its citizens and between citizens- prisoners, mentally challenged, pavement dwellers, and
inter-se. women. The relief was sought against the action or non-
action on the part of executive agencies resulting in
• India has some of the most progressive social legislation to
violations of FRs under the Constitution. During this phase,
be found anywhere in the world whether it be relating to
the judiciary responded by recognizing the rights of these
bonded labor, minimum wages, land ceiling,
people and giving directions to the government to redress
environmental protection, etc. This has made it easier for
the alleged violations.
the courts to haul up the executive when it is not
performing its duties in ensuring the rights of the poor as • The second phase of the PIL was in the 1990s in which the
per the law of the land. PIL cases became more institutionalized as several
specialized NGOs and lawyers started bringing matters of
• The liberal interpretation of locus standi where any person
public interest to the courts on a much regular basis. The
can apply to the court on behalf of those who are
length and breadth of issues in PIL also expanded
economically or physically unable to come before it has
tremendously—from the protection of environment to
helped. Judges themselves have in some cases initiated
corruption-free administration, right to education, sexual
suo moto action based on newspaper articles or letters
harassment at the workplace, relocation of industries, rule
received.
of law, good governance, and the general accountability of
• Although social and economic rights given in the Indian the Government. In this phase, the petitioners sought
Constitution under Part IV are not legally enforceable, relief not only against the action/non-action of the
courts have creatively read these into fundamental rights executive but also against private individuals, in relation to
thereby making them judicially enforceable. For instance policy matters and regarding something that would clearly
the "right to life" in Article 21 has been expanded to fall within the domain of the legislature. The courts
include right to free legal aid, right to live with dignity, right enforced FRs against private individuals and granted relief
to education, right to work, freedom from torture, bar to the petitioner without going into the question of
fetters and hand cuffing in prisons, etc. whether the violator of the FR was the state. The second
• Sensitive judges have constantly innovated on the side of phase was also the period when the misuse of PIL not only
the poor for instance, in the Bandhua Mukti Morcha case began but also reached to a disturbing level, which
in 1983, the Supreme Court put the burden of proof on the occasionally compelled the courts to impose fine on
respondent stating it would treat every case of forced plaintiffs for misusing PIL for private purposes.
labor as a case of bonded labor unless proven otherwise • The third phase—the current phase—is a period in which
by the employer. anyone could file a PIL for almost anything. It seems that
• In PIL cases where the petitioner is not in a position to the misuse of PIL in India, which started in the 1990s, has
provide all the necessary evidence, either because it is reached to such a stage where it has started undermining
voluminous or because the parties are weak socially or the very purpose for which PIL was introduced. Now Public
economically, courts have appointed commissions to in PIL stands substituted by private or publicity.
collect information on facts and present it before the If properly managed, the PIL has the potential to contribute
bench. to an efficient disposal of people’s grievances. But
• The Court also held that the power to appoint considering that the number of per capita judges in India is
commissioners is not constrained by the Code of Civil much lower than many other countries and given that the
Procedure or the Supreme Court Rules. Indian Supreme Court as well as High Courts is facing a huge
backlog of cases, the courts should take steps to stop non-
•
genuine PIL cases.
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JUDICIARY
Judiciary on several occasions did not exercise self-restraint disadvantaged position find it difficult to approach the
and moved on to legislate, settle policy questions, take over court for redress.
governance, or monitor executive agencies. (iv) Recently, Supreme Court has started the practice of
Based on the above problems, certain solutions need to be imposing fines over reckless misuse of PIL by
devised and implemented by the Judiciary to ensure that the appellants for private and non-bonafide interests.
sanctity of Judicial Activism in the country is kept intact and at Mr. Soli Sorabji, while applauding the liberalization of the rule
the same time interests of all classes of stakeholders are of locus standi by the Supreme Court of India made the
addressed in a proper and judicious manner. following suggestions:
To regulate the abuse of PIL the apex court itself has framed i. Reject dubious PIL at the threshold, and in appropriate
certain guidelines. These are: case with exemplary costs,
• The court must be careful to see that the petitioner who ii. In cases where important projects or socio-economic
approaches it is acting bona fide and not for personal gain, regulations are challenged after gross delay, such petitions
private profit or political or other oblique considerations. should be thrown out at the very threshold on the ground
• The court should not allow its process to be abused by of latches. Just because a petition is termed as PIL does not
politicians and others to delay legitimate administrative mean that ordinary principles applicable to litigation will
action or to gain political objectives. At present, the court not apply.
can treat a letter as a writ petition and take action upon it. IMPORTANT CASES OF PIL
But, it is not every letter which may be treated as a writ
• MC Mehta vs Union of India: Led to introduction of
petition by the court. The court would be justified in
environmental jurisprudence in the country. Led to
treating the letter as a writ petition only in the following
important outcomes such as Tax Trapezium for protection
cases-
of Parliament, introduction of CNG buses in Delhi.
(i) It is only where the letter is addressed by an aggrieved
• Common cause vs Union of India: Electoral Reforms,
person or
Introduction of NOTA
(ii) a public spirited individual or
• Important legislation for Undertrials,
(iii) a social action group for enforcement of the
• Swaraj Abhiyaan vs Union of India: Food Security, Drought
constitutional or the legal rights of a person in custody
mitigation, Expansion of MGNREGA to 150 days in drought
or of a class or group of persons who by reason of
areas.
poverty, disability or socially or economically
107
SECTION-4
C S
ENTRE – TATE
R ELATIONS
CENTRE – STATE RELATIONS
►FEDERALISM IN INDIA: the states in a number of matters vitally affecting the interest
of the nation.
RECOMMENDATIONS OF SARKARIA
EMERGING ISSUES
AND PUNCHHI COMMISSION
Three cross-cutting developments, namely the rise of regional
In a federal set up there is a two tier of Government with well
political parties, globalisation and liberalisation of the
assigned powers and functions. In this system the central
economy and judicialisation of the federal process have
government and the governments of the units act within a
deeply influenced the manner in which the concept of
well defined sphere, co-ordinate and at the same time act
federalism is perceived today from what was originally
independently. The federal polity, in other words, provides a
envisaged by the framers of the Indian Constitution. These
constitutional device for bringing unity in diversity and for the
triggers have brought federalism under a new spotlight, even
achievement of common national goals.
as tensions between the Centre and states over crucial issues
The framers of the Constitution have modified the true continue to rise.
nature of Indian federation by incorporating certain non-
SARKARIA COMMISSION (1983)
federal features in it.
A three member Commission on Centre-state relations under
“India, that is Bharat, shall be a Union of States,” declares
the chairmanship of R. S. Sarkaria to review examine and
Art.1 of the Constitution of India. Thus, the Indian State is
review the working of existing arrangements between the
neither a federal state nor a unitary state. It has both federal
Centre and states in all spheres and recommend appropriate
as well as unitary features. Scholars have termed it as
changes and measures. It emphasized on the need for
Unitarian federalism. And the nature of Indian federalism is
changes in the function or operational aspects and did not
indeed unique. K.C. Wheare has described the Indian
favour structural changes.
federalism as ‘quasi federal’ and observes that the “Indian
It stated strong Centre is essential to safeguard the national
Union is a unitary state with subsidiary federal features
unity and integrity which is being threatened by the
rather than a federal state with subsidiary unitary features.”
fissiparious tendencies in the body politic. However, it did not
WHY THE FRAMERS OF INDIAN CONSTITUTION CHOSE
equate strong Centre with centralisation of powers. It
‘FEDERALISM’?
observed that over-centralisation leads to blood pressure at
The framers of Indian Constitution turned to federalism as a the centre and anemia at the pheriphery.
solution of a number of problems they confronted in their
The important recommendations are mentioned below:
attempt to frame a constitution of a new united India.
1. Appointment of Governor: The procedure of consulting
Particularly, they wanted to preserve both the "infinite variety
the chief minister in the appointment of the state governor
and the innate unity" that animated the length and breadth
should be prescribed in the Constitution itself.
of India.
The governor's term of five years in a state should not be
The choice of federalism as a constitutional form and as the
disturbed except for some extremely compelling reasons.
basis of a national government in India was not a sudden
2. President Rule: Article 356 (President's Rule) should be
development upon the transfer of power on 15th August,
used very sparingly, in extreme Cases as a last resort,
1947. It was there for many years and, in a limited form, it
when all the available alternatives fail.
was already in operation in British India.
3. Inter State Council: A permanent Inter-State Council
For the resolution of the constitutional problem of a multi-
called the Inter-Governmental Council should be set up
racial, multi-lingual and multi-communal country like India
under Article 263.
with a vast area and a huge population, federalism was only a
natural choice. Nevertheless, the framers were cautious to 4. All India Services: The institution of All-India Services
ensure that the unity they sought to establish through should be further strengthened-and some more such
federalism was of an abiding nature and in case of a future services should be created.
conflict between that unity and the diversity preserved under 5. Bill Assent: When the president withholds his assent to
the Constitution; the former should prevail over the other. the state bills, the reasons should be communicated the
In other words, it was their intention to create an state government.
indestructible Union and the supremacy of the Union over
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RAU’S IASFOCUS SPECIAL EDITIONS | MAINS COMPASS (C3CURATION) for CSE 2019
6. Zonal Council: The zonal councils should be constituted 2. Role of Governor:

afresh and reactivated to promote the spirit of federalism. a) The convention of Governors acting as Chancellors of
7. Armed Forces Deployment: The Centre should have Universities and holding other statutory positions should
powers to deploy its armed forces, even without the be done away with. His role should be confined to the
consent of states. However, it is desirable that the states Constitutional provisions only.
should be consulted. b) On the question of dismissal of a Chief Minister, the
8. Legislative matters: The Centre should consult the states Governor should invariably insist on the Chief Minister
before making a law on a subject of the Concurrent List. proving his majority on the floor of the House for which
9. Financial: he should prescribe a time limit.
i) The net proceeds of the corporation tax may be made c) The Governor should have the right to sanction for
permissibly shareable with the states. prosecution of a-state minister against the advice of the
Council of Ministers, if the motivated by bias in the face of
ii) The surcharge on income fax should not be levied by
overwhelming material.
the Centre except for a specific purpose and for a
strictly limited period. d) Article 163 does not give the Governor a general
discretionary power to act against or without the advice of
10.Language:
his Council of Ministers. In fact, the area for the exercise
i) Steps should be taken to uniformly implement the three of discretion is limited and even in this limited area, his
language formula in its true spirit. choice of action should not be arbitrary or fanciful It must
ii) The commissioner for linguistic minorities should be be a choice dictated by reason, activated by good faith
activated. and tempered by caution.
PUNCHHI COMMISSION (2007) 3. In case of Hung Assembly: On the question of Governor’s

role in appointment of Chief Minister in the case of an
The Second commission on Centre-State Relations was set-up
hung assembly, it is necessary to lay down certain clear
by the Government of India in April 2007 under the
guidelines to be followed as Constitutional conventions.
Chairmanship of Madan Mohan Punchhi, former Chief Justice
These -guidelines may be as follows:
of India.
(i) The party or combination of-Parties which command the
The important recommendations are mentioned below:
widest support in the Legislative Assembly should be
1. Appointment of Governor: While selecting Governors, called upon to form the Government.
the Central Government should adopt the following strict
(ii) If there is a pre-poll alliance or coalition, it should be
guidelines as recommended in the Sarkaria Commission
treated as one political party and if such coalition obtains
report and follow its mandate in letter and spirit:
a majority, the leader of such coalition shall be called by
(i) He should be eminent in some walk of life. the Governor to form the Government.
(ii) He should be a person from outside the state. (iii)In case no party or pre-poll coalition has a clear majority,
(iii) He should be a detached figure and not too intimately the Governor should select the Chief Minister in the order
connected with the local politics of the states. of preference indicated here.
(iv) He should be a person who has not taken, too great a part (a) The group of parties which had Prepoll alliance
in politics generally and particularly in the recent past. commanding the largest number
Governors should be given a fixed tenure of five years and (b) The largest single party staking a claim to form the
their removal should not be at the sweet will of the government with the support of others
Government at the Centre. (c) A post-electoral coalition with all partners joining the
The Procedure laid down for impeachment of President, government
mutatis mutandis can be made applicable for (d) A post-electoral alliance with sonic parties joining the
impeachment of Governors as well. government and the remaining including independents
supporting the government from outside
110
4. Legislative: 355, it is necessary to provide a Constitutional or legal

a) To facilitate effective implementation of the laws on List III framework to deal with situations which require Central
subjects, it is necessary that some broad agreement is intervention but do not warrant invoking the extreme
reached between the Union and states before steps under Articles 352 and 356. Providing the
introducing legislation in Parliament on matters in the framework for ‘localised emergency" would ensure that
Concurrent List. the state government can continue to function and the
Assembly would not have to be dissolved while providing
b) The Union should occupy only that many of subjects in
a mechanism to let the Central Government , respond to
concurrent-or overlapping jurisdiction which are
the issue specifically and locally. The imposition of local
absolutely necessary to achieve uniformity of policy in
emergency is fully justified under the mandate of Article
national interest.
355 read with Entry 2A of List I and Entry I of List II of the
c) The period of six months prescribed in Article 201 for Seventh Schedule.
State Legislature to act when the bill is returned by the
7. Inter State Council:
President can be made applicable for the president also
to decide on assenting or withholding assent to a state bill a) Suitable amendments to Article 263 are required to make
reserved for consideration of the President. the Inter-State -Council a credible, powerful and fair
mechanism for management of inter-state and Centre-
d) Parliament should make a law on the subject of Entry 14
state differences.
of List I (treaty making and implementing it through
Parliamentary legislation) to streamline the procedures b) There should be a continuing auditing role for the inter-
involved. The exercise of the power obviously cannot be state Council in the management of matters in concurrent
absolute or unchartered in view of the federal structure of or overlapping jurisdiction.
legislative and executive powers. 8. Zonal Council: The Zonal Councils should meet at least
e) In respect of bills passed by the Legislative Assembly of a twice a year with an agenda proposed by states
state, the Governor should take the decision within six concerned to maximise co-ordination and promote
months whether to grant assent or to reserve it for harmonisation of policies and action having inter-state
consideration of the President. ramification. The Secretariat of a strengthened Inter-State
Council can function as the Secretariat of the Zonal
5. Failure of the Constitutional machinery:
Councils as well.
a) When an external aggression or internal disturbance
9. Fiscal matters:
paralyses the state administration creating, a situation of
a potential break down of the Constitutional machinery of a) The Empowered Committee of Finance Ministers of States
the state, all alternative courses available to the Union for proved to be a Successful experiment in inter-state co-
discharging its paramount responsibility under Article 355 ordination on fiscal matters. There is need
should be exhausted to contain the situation and the to institutionalise similar models in other sectors as well. A
exercise of the power under Article 356 should be limited forum of Chief Ministers, Chaired by one of the Chief
strictly to rectifying, a "failure of the Constitutional Minister by rotation can be similarly thought
machinery in the state". about particularly to co-ordinate policies of sectors like
energy, food, education, environment and health.
b) On the question of invoking Article 356 in case of failure of
Constitutional machinery in states, suitable amendments b) All future Central legislations involving states involvement
are required to incorporate the guidelines set forth in the should provide for cost sharing as in the case of the RTE
land-mark judgement of the Supreme Court in S.R. Act. Existing Central legislations where the states
Bommai V Union of India (1994). This would remove are entrusted with the responsibility of implementation
possible misgivings in this regard on the part of states and should be suitably amended providing for sharing of costs
help in smoothening Centre-state relations. by the Central Government.
6. Emergency Provisions: Given the strict parameters now c) To bring greater accountability, all fiscal legislations
set for invoking the emergency provisions under Articles should provide for an annual assessment by an
352 and 356 to be used only as a measure of "last resort", independent body and the reports of these bodies should
and the duty of the Union to protect states under Article be laid in both Houses of Parliament/state legislature.
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10. All India Services: New all-India services in sectors like powers between the Centre and the States through VIIth
health, education, engineering and judiciary should be Schedule.
created. • Distribution of financial powers between the centre and
11. Rajya Sabha: A balance of power between states inter se states impacts the working of our federal polity and allows
is desirable and this is possible by equality of fiscal space and autonomy to states which is an important
representation in the Rajya Sabha. This requires feature of Indian federalism.
amendment of the relevant provisions to give equality of • In India, there exists an inter-government financial
seats to states in the Rajya Sabha, irrespective of their relationship between the Centre and the states. However,
population size. a balance must exist between financial resources of the
12. Local Bodies: The scope of devolution of powers to local government and its corresponding needs, demands and
bodies to act as institutions of self government should be responsibilities.
constitutionally defined through appropriate • But, it is often difficult to maintain balance due to
amendments. economic disparities among states and this at times leads
13. Royalty Issue: The royalty rates on major minerals should to stress or even confrontation between states or between
be revised at least every three years without any delay. Centre and state.
States should be properly compensated for any delay in • Thus, the Centre tries to maintain balance by transferring
the revision of royalty beyond three years. or sharing revenue of the central government to the
14.Tax Issues: The scope for raising more revenue from the states.
taxes mentioned in article 268 should be examined • Article 275 provides for the Grants from the Union to
afresh. This issue may be either referred to the next certain States.
Finance Commission or an expert committee be
• Article 280 provides for the Constitution of Finance
appointed to look into the matter
Commission every five years.
15. Finance Commission: The Finance Commission division
• Article 282 provides for grants for specific purpose.
in the Ministry of Finance should be converted into a full-
fledged department, serving as the permanent secretariat ROLE OF FINANCE COMMISSION IN ALLOCATION AND
for the Finance Commissions. DISTRIBUTION OF REVENUE BETWEEN CENTRE AND
STATES
16. Inter-State Trade and Commerce Commission: Steps
should be taken for the setting up of an Inter-State Trade As per Article 280, President of India shall at the expiration
and Commerce Commission under Article 307 read with ofevery fifth year, or earlier, constitute a Finance
Entry 42 of List-1. This Commission should be vested with Commission which shall consist of a Chairman and four other
both advisory and executive roles with decision members to be appointed by the President. The Commission
making powers. shall make recommendations with respect to:
Commission came to the conclusion that ‘cooperative • The distribution between the Union and the States of the
federalism’ will be the key for sustaining India's unity, net proceeds of taxes and the allocation between the
integrity and social and economic development in future. States of the respective shares of such proceeds.
The principles, of cooperative federalism thus may have • The principles which should govern the grants-in-aid of
to act as a practical guide for Indian polity the revenues of the States out of the Consolidated Fund of
and governance. India and the sums to be paid to the States by way of
grants-in-aid of their revenues under Article 275 of the
Constitution.
►FISCAL FEDERALISM IN INDIA
• The measures needed to augment the Consolidated Fund
WHAT IS FISCAL FEDERALISM? of a State to supplement the resources of the Panchayats
• The Constitution has demarcated each level of and Municipalities in the State on the basis of the
government by devising an elaborate scheme of recommendations made by the Finance Commission of
distribution of legislative, administrative and financial the State.
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• The Commission shall review the current status of the • This Commission will be headed by Shri. N.K. Singh.
finance, deficit, debt levels, cash balances and fiscal • The 15th FC shall recommend for period of five years
discipline efforts of the Union and the States, and commencing 1st April, 2020.
recommend a fiscal consolidation roadmap for sound
• The Commission shall use the population data of 2011
fiscal management.
while making its recommendations.
• Recommendations of Finance Commission together with
THE COMMISSION SHALL
an explanatory memorandum as to the action taken
thereon shall be laid before each House of Parliament by • Review the current status of the finance, deficit, debt
the President. (Article 280) levels, cash balances and fiscal discipline efforts of the
Union and the States
GRANTS-IN-AID (ARTICLE 275)
• Recommend a fiscal consolidation roadmap for sound
• Under Article 275, Centre provides grants to States in need
fiscal management, taking into account the responsibility
of assistance by an Act of Parliament and different sums
of the Central Government and State Governments to
may be fixed for different states.
adhere to appropriate levels of general and consolidated
• These grants are fixed by Parliament every five years on government debt and deficit levels
the basis of recommendations of the Finance Commission
• Foster higher inclusive growth in the country guided by the
under Article 280(3). These grants are also referred as
principles of equity, efficiency and transparency.
statutory grants.
• The Commission may also examine whether revenue
• Finance Commission recommends principles which shall
deficit grants be provided at all.
govern such grants-in-aid of the revenue of States.
IMPACT OF GST ON FISCAL FEDERALISM
• The idea underlying these grants is to transfer resources to
the poor states who do not have adequate means of • Goods and Service Tax (GST) was introduced in India
revenue or who are susceptible to natural calamities like through the Constitution (One Hundred and First
floods, famine etc. Amendment) Act, 2016.
GRANTS FOR SPECIFIC PURPOSE (ARTICLE 282) • Implementation of GST also brought certain changes in the
Seventh Schedule as tax collecting powers of both Centre
• Along with tax-sharing and fiscal need grants, central
and States had to be elaborated.
assistance is also provided to states through grants under
Article 282. • After this amendment, both Centre and States can levy and
collect tax on goods as well as services.
• Article 282 provides that Union or State may make grants
for any public purpose irrespective of the fact whether • Thus, implementation of GST also impacts the idea of fiscal
Parliament or State Legislature can make law on such federalism as changes were brought in tax levying powers
grants or not. of both Centre and States.
• Thus, Article 282 vests broad powers both to the Union • Now, the legislature of every state has power to make laws
and State government to provide grants for any “specific with respect to goods and services tax imposed by the
purpose”. Union or by such State.
• Thus, these grants are also referred as discretionary • Parliament has exclusive power to make laws with respect
grants as the Union or the states are under no obligation to goods and services tax where the supply of goods, or of
to provide grants under Article 282. services, or both takes place in the course of inter-State
trade or commerce.
• Earlier, Planning Commission used to allocate funds to
different states for ‘Economic and Social Planning’ under • Goods and services tax on supplies in the course of inter-
Article 282. State trade or commerce shall be levied and collected
by the Government of India (GoI).
CONSTITUTION OF 15TH FINANCE COMMISSION
• Such tax collected by GoI shall be apportioned between
• The Government of India, with the approval President of
the Union and the States in the manner as may be
India, has constituted 15th Finance Commission as per
Article 280(1) of the Constitution.
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provided by Parliament by law on the recommendations • The Yamuna river water dispute between Uttar Pradesh,
of the Goods and Services Tax Council. Haryana, Himachal Pradesh, Punjab, Rajasthan, Madhya
The amount collected through tax apportioned to states shall Pradesh and Delhi.
not form part of Consolidated Fund of India. • The Ravi and Beas river water dispute between Punjab,
Haryana, Himachal Pradesh, Rajasthan, Jammu and
Kashmir and Delhi.
►INTER STATE WATER DISPUTE CAUSES FOR RISING RIVER DISPUTES
Almost all the major rivers of India are inter-state rivers and 1. Rivers in India passes through different states and does
their waters are shared by two or more than two states. So not follow political limits and boundaries.
most rivers of India are plagued with inter-state disputes.
2. Indian monsoon in unpredictable and variable.
Following are the interstate river water disputes in India:
3. Politicization and regionalisation of water issue for political
• Cauvery water dispute between Tamil Nadu, Karnataka
gains.
and Kerala
4. Water resources and Rainfall is unevenly distributed across
• The Krishna water dispute between Maharashtra,
India
Karnataka and Andhra Pradesh.
5. Populistic policies like free electricity , subsidies etc
• The Narmada water dispute between Gujarat,
Maharashtra, Madhya Pradesh and Rajasthan. 6. Increasing demand of water due to rapid urbanisation and
agricultural modernisation.
CONSTITUTIONAL AND LEGAL PROVISIONS RELATING TO IT
• State List-Water is a State subject and so states are empowered to enact legislation on water.
1. 7th Schedule • Union List- Entry 56 of Union List gives power to the Union Government for the regulation and
development of inter-state rivers and river valleys.
• Article 262(1) provides that Parliament may by law provide for the adjudication of any dispute or
complaint with respect to the use, distribution or control of the waters of, or in, any inter State river or
2.Article 262 river valley.
• Article 262(2) empowers Parliament with the power to provide by law that neither the Supreme Court
nor any other court shall exercise jurisdiction in respect of any such dispute or complaint.
So Parliament has enacted following two Acts under Article 262

1. River Boards Act 1956:
It was enacted with a declaration that centre should take control of regulation and development of Inter-state rivers and river
valleys in public interest. However, not a single river board has been constituted so far.
2. The Interstate River Water Disputes Act, 1956 (IRWD Act)
• This Act confers a power upon union government to constitute tribunals to resolve such disputes [when negotiations fail to
resolve such disputes]
• The decisions given by the tribunals so constituted will be final and binding and no appeal lies in the Supreme Court. So it
also excludes jurisdiction of Supreme Court over such disputes.
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CRITICISM RECENT STEPS TAKEN BY GOVERNMENT

• As there is delay at every stage in working of tribunal, The Government has introduced The Inter-State River
functioning of tribunal is not satisfactory. Water Disputes (Amendment) Bill 2017 to settle inter-state
• Tribunals are only vested with decision making role river disputes in a speedy manner. The Bill aims to replace
without any powers to implement its decisions. the existing the Inter-State River Water Disputes Act, 1956.
PROBLEMS & ISSUES KEY PROVISIONS OF THE NEW BILL ARE AS FOLLOWS:
• The courts are barred from reviewing the Awards of the • The 2017 Bill has proposed to constitute a Permanent
Tribunals, but matters are still taken to Supreme Court on Tribunal having multiple benches for settlement of river
related issues . water disputes. All the existing Tribunal for water disputes
shall stand dissolved from the date of establishment of
• After an Award is given, there are problems of
such river water disputes tribunal.
interpretation and implementation and there is no
mechanism to enforce the binding character of such • Dispute Resolution Committee (DRC) will be established by
Awards. the Central Government before referring dispute to the
tribunal, to resolve the dispute amicably by negotiations
• Everytime a separate Tribunal has to be established for
within a period of one year extended by 6 months.
each Inter State River Water Dispute.
• The decision of the Tribunal shall be final and binding.
• The Union Government is not able to act decisively and
has generally taken a “minimalist” attitude. • The central government will appoint and authorize an
agency for data collection and maintenance of a data-bank
• The Act does not prescribe any principles that have to be
at national level for each river basin
applied by the tribunal in deciding water disputes.
• Also it does not mention any age limit for the chairperson
or members of the tribunals. ►NITI AAYOG AND COOPERATIVE
• The states in disputes want to have control over water FEDERALISM
because compromise will have political consequences.
The National Institution for Transforming India, also called
SUGGESTIONS & REFORMS NITI Aayog, was formed via a resolution of the Union Cabinet
• Interlinking of rivers can help in adequate distribution of on January 1, 2015. NITI Aayog is the premier policy ‘Think
river water in the basin areas and can reduce water Tank’ of the Government of India, providing both directional
scarcity. and policy inputs. While designing strategic and long term
policies and programmes for the Government of India, NITI
• Inter-State Council (ISC) can play a major role is resolving
Aayog also provides relevant technical advice to the Centre
water disputes between different states.
and States.
• According to Mihir Shah Report recommendations water
The Government of India, in keeping with its reform agenda,
should be transferred from state list to the concurrent list.
constituted the NITI Aayog to replace the Planning
It also recommended to establish Central Water Authority
Commission instituted in 1950. This was done in order to
to manage Rivers in India.
better serve the needs and aspirations of the people of India.
• Recommendations of 2nd ARC : An important evolutionary change from the past, NITI Aayog
ο A National Water Law should be created. acts as the quintessential platform of the Government of
India to bring States to act together in national interest, and
ο There should be enforcement mechanism to implement
thereby fosters Cooperative Federalism.
the awards given by tribunals.
STEPS TAKEN BY NITI AAYOG TO PROMOTE FEDERALISM
ο There should be resource planning for a hydrological
unit such as a drainage basin as a whole. • The Governing Council which is the highest decision
making body of the NITI Aayog has representation of all
ο The Chairmen of all River Basin Organisations should be
states and Chief Ministers of UTs having legislature and Lt
made members of the National Water Resource Council.
Governors of other UTs. Till date 5 such Governing council
meetings have taken place.
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• NITI Aayog has also power to establish regional councils harness competitive spirit among States. This
for addressing specific issues related to more than one competitive spirit will help states to come up with
state or a region. NITI Aayog has established to such differentiated models and best practices which can be
regional councils emulated by other states.
• NITI Forum for North East for identifying constraints on the • Fiscal Federalism:
way of accelerated, inclusive and sustainable economic ο NITI Aayog has been robbed of transferring fiscal
growth in the North Eastern Region. resources among states with the aim to getting inter-
• Himalayan State Regional Council has been formed by Niti state balance.
Aayog for sustainable development of Indian Himalayan • Decentralisation
Region.
ο NITI Aayog seems to have failed to engaged with
• It has constituted Panels of Chief Ministers. NITI Aayog has Panchayati Raj and ULBs for which it was mandated.
till date created 6 panels of Chief Ministers on issues like:
WAY FORWARD FOR HARNESSING THE POTENTIAL OF
ο Skill Development
FEDERALISM BY NITI AAYOG:
ο Cashless payments
• The meetings of the Governing Council should be held
ο MGNREGA and Agriculture more frequently. The States should be given the power to
ο Centrally Sponsored Schemes
set the agenda of meetings. Mechanisms should be
developed for follow up of the consensus decisions taken
ο Swachh Bharat Mission
in the meeting.
ο Structural Reforms in Agriculture
• Vijay Kelkar has argued for a NITI Aayog 2.0 wherein NITI
• These panel of Chief Ministers recognises that involvement Aayog gets 1-2% of GDP of resources for accelerating
of States in Policy making is essential for implementing growth in laggard states and overcome their historically
schemes. conditioned infrastructure deficit, thus reducing
• Consultation of NITI Aayog with various states to resolve developmental imbalance. NITI Aayog should be engaged
their issues with Centre. Such meetings have taken place with the allocation of transformational capital in a
with various states such as Andhra Pradesh, Arunachal formulaic manner, complete with incentive compatible
Pradesh etc. conditionalities.
• Circulation of best practices among States which can be • NITI Aayog should also be mandated to create an
emulated by other states to bring reforms. independent evaluation office which will monitor and
evaluate the efficacy of the utilisation of such grants
• Circulation of model laws to states such as APLM Act,
Model Land Leasing Act, Model Contract Farming Act. • Regional council created by NITI Aayog should be meeting
These model legislations can be legislated by states to more frequently.
bring uniformity and development. Thus, in this way NITI • Adequate policy direction should be given by NITI Aayog
Aayog works like a Think Tank for both Centre and States. for effective and meaningful decentralisation to the Third
• Competitive Federalism: Tier of Government ie the Urban Local bodies and
Panchayati Raj.
ο NITI Aayog has come out with various indexes such as
those on Education, Health, Aspirational Districts to
►ABOUT ZONAL COUNCIL, INTER-STATE COUNCIL & NORTH-EASTERN COUNCIL

Under Article 263 of the Indian Constitution, the President in the wake of public interests may by order
establish an Inter-State Council charged with the duty of—
Inter-State
• inquiring into and advising upon disputes which may have arisen between States
Council
• investigating and discussing subjects in which some or all of the States, or the Union and one or
more of the States, have a common interest, or
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• making recommendations upon any such subject and, in particular, recommendations for the better
co-ordination of policy and action with respect to that subject.
Such Inter-State Council established under Article 263 shall be an advisory body. Thus the Council is
envisaged to be a mechanism of inter-governmental consultation. The Council can play an important
role both vertically (Centre-State) and horizontally (Inter-state) to promote inter-governmental co-
operation and co-ordination. Inter-State Council may be appointed on a permanent basis or on an ad
hoc basis.
The Inter-State Council was established under Article 263 of the Constitution of India through
a Presidential Order dated 28th May 1990. The Council consists of the following members:
i. Prime Minister – Chairman
ii. Chief Ministers of all States – Members
iii. Chief Ministers of Union Territories having a Legislative Assembly and Administrators of UTs not
having a Legislative Assembly – Members
iv. Six Ministers of Cabinet rank in the Union Council of Ministers to be nominated by the Prime Minister
– Members
ISSUES WITH THE ISC:

• The ISC has been established by a Presidential Order.
• Infrequent meetings. The ISC was established only in 1990 and till date only 15 meetings of the body
has taken place.
• States do not have power to summon meetings of ISC
• Conflict with other similar bodies such as NITI aayog etc.
• Lack of power to inquiry and present solutions to solve inter-state diputes.
• Lack of technical expertise and capacity support to the ISC.
• Lack of a mechanism to follow up decisions taken by the ISC.
RECOMMENDATIONS OF PUNCHHII COMMISSION ON STRENGTHENING INTER-STATE COUNCILS:

• Inter-State Council is a forum for co-ordination of intergovernmental relations. ISC needs to be thus
substantially strengthened and activised as the key player in the intergovernmental relations.
• Currently, the ISC has been established by Presidential Order, Constitutional Amendment should be
brought to in to make it a constitutional body or statutory body.
• ISC should meet at least thrice a year on an agenda evolved after proper consultation.
• If decisions by consensus do not work in the ISC, decisions may be taken by majority in matters of
national concern. In other areas, an Empowered Committee of ministers may be asked to study and
report within a prescribed time-frame a more acceptable way of resolving the problem. The ISC may
be empowered to follow up the implementation of its decisions for which appropriate statutory
provisions should be made.
Functional Empowerment: The Government will be well advised to evolve an appropriate scheme to
utilize the full potential of ISC in harmonizing Centre-State relations which has become urgent in the
changed circumstances. Issues of governance must as far as possible be sorted out through the
political and administrative processes rather than pushed to long drawn adjudication in Court. Inter-
State Council appears to be the most viable, promising Constitutional mechanism to be developed for
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the purpose provided it is properly restructured and duly empowered.
• At present ISC is only a recommendatory body. The ISC has not been assigned the function
envisaged for it in the Constitution for inquiring into and advising upon disputes, which may have
arisen between States. The 2ndARC recommended conflict resolution role envisaged should be
effectively utilized to find solutions to disputes among States or between all or some of the States
and the Union.
• Composition of the ISC may be flexible to suit the exigencies of the matter referred to it under Article
263.
PROCEDURES OF FUNCTIONING:
• The Council is empowered under the Presidential Order, 1990 to work out its own procedures with
the approval of the Government.
• ISC should have functional independence with a professional Secretariat constituted with experts on
relevant fields of knowledge supported by Central and State officials on deputation for limited
periods. The Secretary of ISC should be designated exofficio Secretary of the Department of States
reporting directly to the Union Home Minister who is to be ex-officio Deputy Chairman of the
Council.
• Given the Constitutional and quasi-judicial tasks, the Council should have experts in its
organizational set up drawn from the disciplines of Law, Management and Political Science besides
the All India Services.
• The proposed legislation should give the ISC an organizational and management structure different
from the Government departments and flexible enough to accommodate management practices
involving multidisciplinary skills conducive to federal governance under the Constitution.
• The Zonal Councils were created through Part-III of the States Re-Organisation Act, 1956 as a part
of the scheme of the reorganisation of the States. Zonal Council is an advisory body.
• During the reorganisation of states in 1956, controversy arose and friction between states and
Centre increased. The concept of Zonal Council was conceived in early days of Indian independence
which saw strained relation among states.
• Zonal Council was created as an instrument of inter-governmental consultations and co-operation

mainly for socio-economic growth and to arrest fissiparous tendencies among states.
• Section 15 of the States Reorganization Act 1956 provides that there shall be a Zonal Council for
each of the five zones of the country. The present composition of each Zonal Council is as under:
Zonal Council ZONAL COUNCIL STATES
Northern Haryana, Himachal Pradesh, Jammu & Kashmir, Punjab,

Rajasthan, National Capital Territory of Delhi and Union Territory of
Chandigarh
Central Chhattisgarh, Uttarakhand, Uttar Pradesh and Madhya Pradesh
Eastern Bihar, Jharkhand, Odisha and West Bengal
Western Goa, Gujarat, Maharashtra and the Union Territories of Daman &
Diu and Dadra & Nagar Haveli
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Southern Andhra Pradesh, Karnataka, Kerala, Tamil Nadu, Telangana and the
Union Territory of Puducherry
FUNCTIONS OF THE COUNCILS:

(1) Each Zonal Council shall be an advisory body and may discuss any matter in which some or all of the
States or Union Territories represented in that Council have a common interest and advise the
Central Government and the respective state or UT government as to the action to be taken on any
matter of importance.
(2) Zonal Councils may discuss, and make recommendations with regard to:
(a) any matter of common interest in the field of economic and social planning
(b) any matter concerning border disputes, linguistic minorities or inter-State transport, and
(c) any matter connected with, or arising out of, the reorganisation of the States under this Act.
• Section 16 (1) of the States Reorganisation Act 1956 provides that the Zonal Councils shall consist of
the following members:
a. A Union Minister to be nominated by the President – Chairman
b. the Chief Minister of each of the States included in the zone and two other Ministers of each such
State to be nominated by the Governor. If there is no Council of Ministers in any such State, then
three members from that State to be nominated by the President.
c. where any Union Territory is included in the zone, not more than two members from each such
territory to be nominated by the President.
• The Union Minister nominated to a Zonal Council shall be its Chairman. The President has
currently nominated Union Home Minister to be the Chairman of all the Zonal Councils.
• The Chief Ministers of the States included in each zone shall act as Vice-Chairman of the Zonal
Council for that zone by rotation, each holding office for a period of one year at a time.
• Provided that if during that period there is no Council of Ministers in the State concerned, such
member from that State as the President may nominate in this behalf shall act as Vice-Chairman of
the Zonal Council.
ISSUES
• Meetings of the council are summoned by the Ministry of Home Affairs.
• Meetings of the Zonal Councils do not happed regularly.
• Agenda to the meetings are not set based on states choice.
• The Zonal Councils do not have permanent secretariats.
RECOMMENDATIONS FOR STRENGTHENING OF ZONAL COUNCILS

• Permanent secretariat of Each of the Zonal Councils should be created and they should be assisted
by the Ministry of Home Affairs.
• The meetings to the councils should be held regularly at least one in a year.
• Agenda of the meetings should be decided in a participative way with concerns of states taken up.
• Follow up of the decisions taken at the Zonal councils should be done.
North-Eastern • NEC is the most significant ‘supra State’ institution in the North Eastern Region set up in 1972. NEC
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Council was established under the North Eastern Council Act, 1971 as an apex level body for securing
balanced and coordinated development and facilitating coordination with the States.
• Subsequent to the Amendment of 2002, NEC has been mandated to function as a regional planning
body for the North Eastern Area and while formulating a regional plan for this area, shall give priority
to the schemes and projects benefiting two or more states provided that in the case of Sikkim, the
Council shall formulate specific projects and schemes for that State.
COMPOSITION
• North Eastern Council is a statutory body with Governors and Chief Ministers of all 8 North Eastern
States as its Members.
• Union Cabinet in 2018 has decided to for the nomination of Union Home Minister as ex-officio
Chairman and Minister of DoNER as Vice Chairman of North Eastern Council.
• NEC implements various projects through the State and Central agencies. NEC can now also perform
the tasks undertaken by the various Zonal Councils to discuss such inter-State issues as drug
trafficking, smuggling of arms and ammunition, boundary disputes etc.
• The Council shall, from time to time, review the implementation of the projects/schemes included in
the project; recommend effective measures for coordination among the state Governments for
these projects etc. The Council shall have such powers as may be delegated to it by the Central
Government.
ACHIEVEMENTS OF NORTH-EASTERN COUNCIL

Over the last forty-seven years, NEC has been instrumental in setting up various iconic Institutes in the
Region such as NEPA, NEEPCO, NERAMAC, NERIST, RIPAN, NERIWALM, RIMS etc.
Some of the major achievements of NEC are as under:
• Since its inception, NEC has focused on improving connectivity of the region which has been a major
bottleneck for all developmental activities. In its endeavour, the Council has contributed immensely
towards the improvement of the inter-state connectivity in the Region. A total of 10,911 kms of roads
have been constructed with the NEC funding and handed over to the States for maintenance.
• NEC has till date supported the installation of 694.5 MW of power plants and construction of 9202
cicuit km of transmission & distribution lines.
• NEC has also undertaken development work in various sectors like education, healthcare,
agriculture, horticulture, tourism, industries etc.
• Eleven Inter-State Bus terminus (ISBT) projects have been taken up across different States to ease
out inter-state movement of people. Nine of these have been completed and two are under
construction in Meghalaya and Manipur. To facilitate movement of essential goods, three numbers
of Inter State Truck Terminus (2 in Assam and 1 in Nagaland) have been completed.
• Since inception, NEC has contributed for the up-gradation/strengthening of the infrastructure of the
existing Airports in the region. Improvement of the infrastructure in 5 major airports of the Regions
namely, Guwahati, Dibrugarh, Jorhat, Imphal and Umroi have been taken up in collaboration with
Airport Authority of India on 60:40 (60% by NEC and 40% by AAI) basis. Out of these, the work for
construction of 3 number of Hangers and Apron at LGBI Airport, Guwahati and Extension of Apron at
Jorhat Airport have been completed.
• The restructuring of NEC was undertaken with a view to have a forum to discuss issues such as
boundary disputes, drug trafficking, smuggling of arms and ammunition, etc. which are usually
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discussed in the other Zonal Councils. The NE States are not part of any Zonal Council.
RECOMMENDATIONS OF SECOND ARC FOR NORTH EASTERN COUNCIL

• The NEC Act, 1971 may be suitably amended to restore the original ‘conflict resolution provision’
requiring the NEC to ‘discuss issues of mutual interest to two or more states in the region and to
advise the Central Government.
• To enable the Council to assist effectively in the discharge of its responsibilities for reviewing the
measures taken by the member-States for maintenance of security in the region, Ministry of Home
Affairs should keep the Council Secretariat regularly within its ‘security coordination loop’. The
Council Secretariat would also need to be suitably strengthened to effectively assist in security
coordination
• The North Eastern Council, in consultation with the Universities and other educational institutions of
the region, should draw up programmes for coaching students for the Civil Services, and other
competitive tests such as the Combined Defence Services Examination and the Engineering/Medical
Examinations
• The North Eastern Council (NEC) should establish an apex Regional Academy for Human Resource
Development as an autonomous body with academic and executive flexibility. The mandate of the
Academy may extend to the entire range of services under the government
• The North-Eastern Council should be given the responsibility to undertake a review of various
regional institutes under the Union Government/Ministries and come up with suitable
recommendations for bringing improvements in their functioning whenever required. An
officer/member of the NEC should be placed on the governing body of these institutions.
• The meetings of the North-Eastern Council should be held frequently. At least one meeting per year.
• The body should have a permanent secretariat.
►SEPARATION OF POWER CONCEPT OF SEPARATION OF POWER
There are legislative, executive and judicial functions of the The doctrine of Separation of Powers is of ancient origin. The
government. Corresponding to these there are three organs history of the origin of the doctrine is traceable to Aristotle. In
of the government. The legislative organ of the state makes the 16th and 17th Centuries, French philosopher John Boding
laws, the executive enforces them and the judiciary applies and British Politician Locke respectively had expounded the
them to the specific cases arising out of the breach of law. doctrine of separation of powers. But it was Montesquieu,
Each organ while performing its activities tends to interfere in French jurist, who for the first time gave it a systematic and
the sphere of working of another functionary because a strict scientific formulation in his book ‘Esprit des Lois’ (The spirit of
demarcation of functions is not possible in their dealings with the laws).
the general public. Thus, even when acting in ambit of their MONTESQUIEU STATES THAT
own power, overlapping functions tend to appear amongst • If the legislative and executive powers are combined in the
these organs. same organ, the liberty of the people gets jeopardized
Thus the concept of Separation of Power came into being. because it leads to tyrannical exercise of these two
Hereby discussing the concept using following issues: powers.
a) Ordinance • If the judicial and legislative powers are combined in the
b) Judicial activism same organ, the interpretation of laws becomes
meaningless because in this case the lawmaker also acts
c) Office of Profit
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as the law interpreter and he never accepts the errors of the legislature does it. Secondly, legislative body can
his laws. remove the judge by impeachment but only by two third
• If the judicial power is combined with the executive power majority. It means legislature can interfere in the process
and is given to one-person or one organ, the of judiciary but as per the condition i.e. two third majority.
administration of justice becomes meaningless and faulty • The supreme court of India- judicial wing, has power to
because then the police (Executive) becomes the judge void the laws passed by the legislature. It can also declare
(judiciary). the action conducted by executive void which violate the
• Finally if all the three legislative, executive and judicial constitution provisions or law passed by the legislature.
powers are combined and given to one person or one CURRENT ISSUES SURROUNDING SEPARATION OF POWER
organ, the concentration of power becomes so big that it CONCEPT
virtually ends all liberty. It establishes despotism of that a) Ordinance making and Separation of Powers:
person or organ.
Under the Indian Constitution, the executive powers are
As such, the three powers should not be combined and given vested with the President and Governors for respective
neither to a single organ nor to two organs. These three states. The President is, therefore, regarded as the Chief
powers should be used by three separate organs of the Executive of Indian Union who exercises his powers as per
government. It is essential for safeguarding the liberty of the the constitutional mandate on the aid and advice of the
people. council of ministers.
IMPORTANCE OF THE DOCTRINE The president is also empowered to promulgate ordinances
• The main object is that there should be government of law in exercise o his extensive legislative powers which extend to
rather than having willed and whims of the official. all matters that are within the legislative competence of the
• It provides independence of judiciary. The judiciary is the Parliament. Such a power is co-extensive with the legislative
scale through which one can measure the actual power of the Parliament.
development of the state if the judiciary is not Allowing the executive to make legislative changes, though
independent then it is the first step towards a tyrannical temporary in nature, without the approval of parliament
form of government i.e. power is concentrated in a single undermines the role of parliament as a legislative
hand and if it is so then there is a cent percent chance of institution. Note that the practice of vesting law-making
misuse of power. powers in the government in the form of promulgation of
• The Doctrine of separation of power plays a vital role in ordinances does not exist in other democracies such as the
the creation of a fair government. UK, the US, Australia and Canada. This is because
legislatures in these countries have an annual calendar of
EXAMPLE OF CONSTITUTIONAL PROVISIONS FOR CHECKS
sittings such that they convene regularly through the year,
AND BALANCES
that is a few weeks every month. For example, in the last 15
• Judges are the subject matter of the judiciary but removal years, the average number of sitting days in the US House
of the judges, in a case in which they have not acted of Representatives is 140 and in UK House of Commons is
properly, can be removed by the President on an address 150. In comparison, the Indian parliament sat for 57 days
by both the houses of Parliament presented in the same last year.
session. The address must be supported by a majority of
One way to minimise the need for Ordinances could be by
the total membership in each house, and also by majority
increasing the number of parliament sittings. The National
of not less than two thirds of the members of each House
Commission to Review the Working of the Constitution
present and voting.14 By this, two things can be achieved-
(2002) had recommended that Lok Sabha should have at
firstly, judiciary cannot remove any judges by using its
least 120 sittings in a year, while Rajya Sabha should have
discretionary power in both ways- in a case where judge
100 sittings.
has really conducted misbehavior and in a case where
there is any political pressure or any prejudice against any
judge. By any reason, a judge cannot be removed except
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b) Judicial Activism and Separation of Power deemed to hold an office of profit under the government of India
Judicial review and activism functions of the judiciary is an or the government of any state by reason only that he is a
important element to keep a check on the legislature who are minister”.
the law makers of the land, so that they do not exceed their An office of profit is an office which is capable of yielding a
powers and work within the allowances that the constitution profit or pecuniary gain. Holding an office under the Central
has made for them. or State government, to which some pay, salary, emolument,
Judicial activism implies going beyond the normal constraints remuneration or non-compensatory allowance is attached, is
applied to jurists and the Constitution, which gives jurists the “holding an office of profit” for the purpose of Article 102 of
right to strike down any legislation or rule against the the Constitution of India.
precedent if it goes against the Constitution. Judicial activism A certain office will qualify to be an office of profit if-
is premised upon the fact that judges assume a role as a) Government makes the appointment
independent policy makers or independent “trustees” on
b) Government has the right to dismiss the office bearer at its
behalf of society that goes beyond their traditional role as
will
interpreters of the Constitution and laws.
c) Government pays the remuneration
Judicial activism may be a welcome measure on in a short run
where it helps in maintaining the rule of law and allows one d) Government exercises control over the functions of the
organ to sustain the administration of the country when office holder
other organs are not performing. If it is practiced for a long e) Office yields personal gains to the holder
time it may dilute the theory of separation of power and the
The idea behind the concept is to preserve independence of
doctrine of checks and balances.
legislature from the executive because MPs and MLAs, as
There is a thin line between activism and overreach. members of the legislature, hold the government
While judicial activism is considered positive to supplement accountable for its work. The essence of disqualification
the fallings of the executive, but the overreach into the under the office of profit law is if legislators holds an ‘office of
executive’s domain is considered an intrusion into the proper profit’ under the government, they might be susceptible to
functioning of democracy. government influence, and may not discharge their
constitutional mandate fairly. The intent is that there should
c) Issue of Office of Profit
be no conflict between the duties and interests of an elected
Under the provisions of Article 102 (1) and Article 191 (1) of member. Hence, the office of profit law simply seeks to
the Constitution, an MP or an MLA (or an MLC) is barred from enforce a basic feature of the Constitution- the principle of
holding any office of profit under the central or state separation of power between the legislature and the
government. The articles clarify that “a person shall not be executive.

SPICE APPROACH
It has been seen time and again that the unlimited power in the hands of one person or group in
most cases means that others are suppressed or their powers curtailed. The separation of powers in
Social dimension
a democracy is to prevent abuse of power and to safeguard freedom for all. It helps in curtailing
Majoritarianism.
Articles in the constitution which defines Separation of Powers:
Political/Legal a) Article 50 puts an obligation over the state to separate the judiciary from the executive.
b) Under Articles 121 and 211, the legislatures cannot discuss the conduct of a judge of the High
Dimension
Court or Supreme Court. They can do so only in matters of impeachment.
c) Under Articles 122 and 212, the courts cannot inquire the validity of the proceedings of the
123
legislatures.
d) Under Article 361, the President and Governors enjoy immunity from court proceedings.
The doctrine of Separation of Powers has not been accepted in India in its strict sense. In India, not
only there is functional overlapping but there is personnel overlapping also. The Supreme Court has
Institutional
power to declare void the laws passed by the legislature and the actions taken by the executive if
dimension
they violate any provision of the Constitution or the law passed by the legislature in case of
executive actions.
Cultural dimension It helps in preventing the abuse of power.
Economic dimension Well-designed institutions can improve economic performance.
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SECTION-5
L OCAL
G OVERNMENT
LOCAL GOVERNMENT
►ISSUES IN DECENTRALIZATION – State Government based on the recommendations of the

State Finance Commission as per Article 243 I.
LOCAL GOVERNMENT
• Loans/grants from the State Government.
• The spirit behind the decentralization of local governance
• Programme-specific allocation under Centrally Sponsored
as envisaged in the 73rd and 74thAmendment is reflected in
Schemes and Additional Central Assistance.
Article 243 (Panchayats, Municipalities and Co-operatives),
11th and 12th Schedule of the Constitution which seek to • Internal Resource Generation (tax and non-tax).
establish Panchayats/ municipalities as self-governing The reason for poor financial position of local bodies can be
institutions entrusted with the preparation and inferred from below points –
implementation of plans for economic development and
• Internal resource generation at the Panchayat level is
social justice.
weak. This is partly due to a thin tax domain and partly
• The key objective of Article 243G of the Constitution is to due to Panchayats’ own reluctance in collecting revenue.
ensure that Panchayats at all levels function as institutions
• Panchayats are heavily dependent on grants from Union
of self-government rather than as implementing agencies.
and State Governments. A major portion of the grants
This is to be done through devolution of functions, funds
both from Union as well as the State Governments is
and functionaries.
scheme specific. Panchayats have limited discretion
ISSUES WITH FUNCTIONS and flexibility in incurring expenditure.
• Panchayats continue to function within the framework of • In view of their own tight fiscal position, State
what may be called a “permissive functional domain”, Governments are not keen to devolve funds to
since very limited functional areas have been withdrawn Panchayats.
from the line departments of State Governments and
In most of the Eleventh Schedule matters like primary
transferred to local bodies.
education, healthcare, water supply, sanitation and minor
• Only minor civic functions have been exclusively assigned irrigation, it is the State Government which is directly
to the local self government bodies. All the other so-called responsible for implementation of these programmes and
development functions assigned to the different tiers of expenditures thereof. Overall, a situation has been created
Panchayats are actually dealt with by the line departments where Panchayats have responsibility but grossly
of State Governments or parastatals. inadequate resources.
• Resources as well as staff also remain under the control of ISSUES WITH FUNCTIONARIES
the State Government. Therefore, effective devolution of
Under various State Panchayati Raj Acts, the respective State
functions as envisaged in the Constitution has not taken
Government or their nominated functionaries command
place.
considerable power with regard to review and revision of
In order to make devolution functional, the matters listed in actions taken by PRIs. These controls are in the form of -
the Eleventh Schedule of the Constitution need to be broken
a) Power to suspend a resolution of the Panchayat
down into discrete activities, because it may not be
appropriate to transfer all the activities within a broad b) Power to inquire into the affairs of the Panchayat
function. c) Power to remove elected Panchayat representatives under
ISSUES WITH FUNDS: certain specified conditions,
The real empowerment in terms of both autonomy and d) Power to inspect and issue directives
efficiency of Local bodies is dependent on their financial e) Provision for withdrawal of powers and functions from the
position (including their capacity to generate own resources). Panchayat
In general, Panchayats in our country receive funds in the f) Provision regarding approval of the budget of a Panchayat
following ways: by the higher tier or a State authority, etc.
• Grants from the Union Government based on the These provisions in varied from across states hinders the
recommendations of the Central Finance Commission as autonomy all the tiers of local governments and restrict
per Article 280 of the Constitution.Devolution from the their functioning as an institution of self-government.
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LOCAL GOVERNMENT
CORE PRINCIPLES OF DECENTRALIZATION RECOMMENDED will be responsible for all the local functions, including
BY 2ND ARC those listed for them in the Eleventh and Twelfth
• Application of the principle of subsidiarity in the context of Schedules. The DPC in its present form will be redundant,
decentralisation; once a District Council comes into existence as envisaged
by the Commission.
• Clear delineation of functions of local governments vis-à-
vis State Governments and among different tiers of local • Due to delay in delimitation of constituencies mainly in
governments; urban areas the elections get delay. Hence a delimitation
commission in line of central delimitation commission
• Effective devolution of these functions and resources
should be formed or State election commission should be
accompanied by capacitybuilding and accountability;
allotted the above said work.
• Integrated view of local services and development through
• The reservation of constituencies should also be entrusted
convergence of programmes and agencies and above all,
to SECs.
‘citizen-centricity’.
• In case of single-member constituencies, the rotation can
RECOMMENDATIONS OF 2ND ARC ON IMPROVING URBAN
be after at least 2 terms of 5 years each so that there is
GOVERNNANCE
possibility of longevity of leadership and nurturing of
• Third tier of Government should also have a stake in constituencies.
making laws in the State Legislatures. Apart from
• The State Election Commissioner should be appointed by
constituting Legislative Councils (where they do not exist),
the Governor on the recommendation of a collegium,
the existing Legislative Councils may be recast as a council
comprising the Chief Minister, the Speaker of the State
for local governments.
Legislative Assembly and the Leader of Opposition in the
• The tiers of local government should be left for the State Legislative Assembly.
Legislature to decide. Even larger States, with generally
• An institutional mechanism should be created to bring the
smaller habitats mostly want to treat a group of villages as
Election Commission of India and the SECs on a common
the polling unit of local government on the pattern of the
platform for coordination, learning from each other’s
countries in the West. In such a case again, Intermediate
experiences and sharing of resources.
Panchayats may be redundant.
• There should be clear delineation of functions for each
• Members of Parliament and State Legislatures should not
level of local government in the case of each subject
become members of local bodies. This would endow the
matter law. This is not a one-time exercise and has to be
local bodies with decision-making capabilities.
done continuously while working out locally relevant socio-
• States should be free to decide the composition of economic programmes, restructuring organisations and
Panchayats and the manner of election to suit their local framing subject-matter laws.
conditions best. However, the Commission is of the view
• Training of elected representatives and personnel should
that in the States which opt for indirect membership of
be regarded as a continuing activity.
Intermediate Panchayat & District Panchayat, whereby the
Chairpersons of the lower tiers became members of RECOMMENDATIONS OF 2ND ARC ON LOCAL
higher tiers, and there are no directly elected members, it GOVERNANCE
is desirable to have the Chairperson directly elected. In • There is need for States to re-examine Gram Panchayat
other words, in each tier, either the members or the delimitation so as to aim for greater efficiency of scale in
Chairperson should be directly elected so that the delivery of services. Though gains can be expected when
population will get proper representation. small villages are clustered, the trade-off could be in terms
• The DPCs prescribed in Article 243Z D are too weak and of larger Gram Sabhas. Many of the Gram Panchayats are
non-starters in many States. Therefore, the Commission is too small to function as autonomous institutions of local
of the considered view, that there must be a single elected government. In order to be an economically viable
District Council with representatives from all rural and administrative unit, capable of discharging multiple
urban areas, that will function as a true local government responsibilities, a Gram Panchayat needs to have a
for the entire district. In such a scheme, the District Council minimum population size. Creation of an intermediate
body-Ward Sabha - would facilitate greater peoples’
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LOCAL GOVERNMENT
participation and at the same time ensure administrative matters in the Eleventh Schedule of the Constitution, their
viability of the Gram Panchayat. Each Gram Panchayat separate existence with considerable fund and staff at
area could be divided into several such Wards. A Ward their disposal, is an impediment to effective functioning
Sabha would be in closer proximity with the people and and empowerment of local government institutions.
would be in a position to prepare a comprehensive and • Involvement of people in the management and use of
realistic proposal for the ward as a whole with effective these natural assets would also ensure that the ecology is
citizens’ participation. in safe hands. It is necessary that the local bodies are
• Panchayats as the government at the local level, should entrusted with the responsibility of conservation and
have their own staff. They should have full powers with development of these resources. This responsibility can be
regard to recruitment and service conditions of their discharged by the Panchayats through a team of
employees within a broad framework of State laws and volunteers, who will work as ‘green guards’.
certain standards. • Ensuring proper allocation of funds to the panchayats and
• Parastatals are institutions/organizations which are wholly municipalities including ensuring sources of income
or partially owned and managed by government (either including devolution of taxes. Even fiscal administration of
autonomous or quasi-governmental). They may be formed every state needs to be improved as it involves levy and
either under specific State enactments or under the collection of taxes at local level.
Societies Registration Act. These bodies are generally • Proper implementation of State Finance Commission
formed for delivery of specific services, implementation of under Article 243I and 243Y recommends principles for
specific schemes or programmes sponsored by the distribution of funds between the urban local bodies and
State/Union Government/international donor agencies. different panchayats.
Since activities of many of these organisations are in the
SPICE APPROACH
• A strong Local governance structure is fundamental to empowerment of the last layers of
Social dimension community, and decentralisation of power is essential feature of it.
• Community participation to make government policies effective for them.
• Despite constitutional provisions, political class hasn’t shown the will to devolve power to the
Political/Legal local bodies.
Dimension • Need to bring uniformity across the states at par with constitutional provisions.
• Regular and timely elections to local bodies must be done.
• 2ndARC recommended that institutional arrangements should be made by legislating an

appropriate Fiscal Responsibility Act for elected local authorities to make them financially
stronger.
Institutional • Instead of current ad-hoc methods, Institutionalisation of mechanisms of social audits is the need
dimension of hour.
• As per the McKinsey Global Institute report, there is a need for 40,000 planners across cities – the
current figures are 1/10th of these. States must look beyond the pool of IAS/IPS and leverage the
enormous talent in private/corporate planers.
• Inculcating sense of participation in governance will breed the culture of responsibility and
Cultural dimension
accountability among general citizenry.
Economic • Internal resource generation at the Panchayat level including taxation powers must be
dimension strengthened to make them financially prudent.
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LOCAL GOVERNMENT
• According to NITI Aayog, the combined receipts of all municipalities in India are estimated to be
less than ₹150,000 crore, with less than a third of this amount estimated to be from own
resource.
►WOMEN EMPOWERMENT ISSUES IN • Most women are elected because of the status of their
husbands, fathers or sons and that such women often act
PANCHAYATS as proxies for men’s view at the councils being advised by
Women's participation in self government (Panchayati Raj) their men relatives. It shows that women representatives
encompasses structural changes in the rural socio-economic are unable to perform their duties. We should change our
situation in order to achieve the prosperity and welfare, negative mentality and government should also organise
which is the ultimate goal of all development. However, even camps to restrict male members from intervening in their
after specific provisions of women reservation and independent functioning.
participation in PRI’s, their representation has remained • Increasing political awareness among women - It is the
either scarce or notional. duty of the state government and local administration to
There are several problems in the way of women educate the women about the political issues and create
representatives in PRIs and it will be an injustice with the awareness among them. The government should organise
women until we are not able to solve such problems. Some of awareness camps in rural areas with the help of local
the main problems are: administration from time-to-time.
• Political intervention in the functioning of Panchayats. CONSTITUTIONAL PROVISION FOR OMEN RESERVATION
• Women act as proxies for men. IN PANCHAYATS
• Institutionalisation of Husband’s intervention of elected The constitution provides for the reservation of not less than
woman in her functioning (Sarpanch-Pati). one-third of the totalnumber of seats for women (including
the number of seats reserved forwomen belonging the SCs
• Lack of political awareness among the women in rural
and STs). Further, not less than one-third of thetotal number
areas.
of offices of chairpersons in the panchayats at each level
• Negative public opinion regarding women’s leadership shallbe reserved for women.
capacity.
• Illiteracy or low standard of education among the women
in rural areas. Prime Minister has called for ending ‘sarpanch-pati’ culture
in panchayats, the practice of husbands of women
• Lack of training courses especially for women
sarpanches exercising undue influence, as he pitched for a
representatives of local bodies
leadership role for elected village representatives to alleviate
• Dominance of elected male members of the Panchayat. poverty and promote education.
SUGGESTIONS TO INCREASE THE PARTICIPATION OF Recalling a political event in which someone told him that he
WOMEN’S IN PRIS was an SP (sarpanch-pati), PM Modi said, “This business of SP
• Curbing political parties intervene in the functioning of is going on. Law has empowered women. When law has given
Panchayats. They even intervene in the election process them the rights, they should also get an opportunity. Bring to
directly. It creates discomfort for the women contestants an end this SP culture. They (women) should be given the
and women representatives. opportunity. They should be promoted.”
SPICE APPROACH
• For achieving Politicalgender parity, gender equality must start at Panchayat level
Social dimension • Women are often used as a tool to capture power on reserved seats, by way of PanchayatPati or
Sarpanchpati model.
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LOCAL GOVERNMENT
A parity among states on the issue of local body reservation must be reached, hile some states have
Political/Legal gone ahead of constitutional provision and implemented 50% reservation for women in local bodies
Dimension (eg. Bihar), states like Nagaland are still struggling to effectively implement even the constitutional
mandates.
Constitution provides that, “Not less than one-third of the total number of offices of
Institutional
chairpersons in the panchayats at each level shall be reserved for women.” If implemented
dimension
properly, it institutionalises omen empowerment at grassroot level.
The stereotyping of women, and the culture of seeing them as inferior sexes are being busted by the
Cultural dimension
grassroot level women political leaders
• IMF chief Christine Lagarde has said that a perfect gender parity in India could boost its GDP by
Economic 27%. Women empowerment in PRIs are building block to gender equality at national level.
dimension • Women policymakers in local bodies would help in making gender sensitive policies.
• Adoption of gender budgeting provisions in local governance.
►SOCIAL AUDIT AND SOCIAL (SAU), at the state level, to facilitate conduct of social audit
by Gram Sabhas.
ACCOUNTABILITY
NEED OF SOCIAL AUDIT
Social audit is a process in which, details of the resource, both
The main reason for the push for social audit is the huge
financial and non-financial, used by public agencies for
disconnect between what people want and what people get.
development initiatives are shared with the community, often
As soon as social audit kicks in, it exercises its control over
through a public platform. Social audits allow people to
the policy developers and implementers in the following
enforce accountability and transparency, providing the
manner:
ultimate users an opportunity to scrutinise development
initiatives. • A check on corruption: SA’s uncovers irregularities and
malpractices in the public sector and maintains oversight
Therefore, an effective system of social audit at all levels of
on government functioning, thus reducing leakages and
local self government is critical to ensure accountability and
corruption.
transparency in these institutions.
• Monitoring and feedback: It monitors social and ethical
ORIGIN OF SOCIAL AUDIT IN INDIA
impact of an organisation’s performance and provides
• In India, the initiative of conducting social audits was taken feedback on the work.
by Tata Iron and Steel Company Limited (TISCO),
• Accountability and transparency: SA ensure
Jamshedpur in the year 1979.
accountability and transparency in working of local
• Social audit gained significance after the 73rd government bodies and reduces trust gap between people
constitutional amendment. The approach paper to the and local governments.
9th FYP (2002-07) emphasized upon social audit for
• Participative and democratic: SA promotes participation
effective functioning of Panchayat Raj institutions (PRIs)
of people in implementation of programmes and makes
and empowered gram sabhas to conduct SAs in
people more forthcoming for social development activities.
addition to its other functions.
• Strengthens the Gram Sabha: SA gives voice and
• National Rural Employment Guarantee Act, 2005 provides
influencing power to the Gram Sabha, the lynchpin of rural
for regular “Social Audits” so as to ensure transparency
governance structure.
and accountability in the scheme.
• Generates demand: Serves as the basis for framing the
• The State Government shall identify or establish, under the
management’s policies by raising demands in a socially
NREGS, an independent organization, Social Audit Unit
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LOCAL GOVERNMENT
responsible and accountable manner by highlighting the comparative performance of all Panchayats falling within
real problems. its jurisdiction, so that people can get an idea of where
• Improves professionalism: SA boosts professionalism in their Panchayat stands in respect of each service
public bodies by forcing Panchayats to keep proper delivered.
records and accounts of the spending made against the INSTITUTIONALIZING SOCIAL AUDITS
grants received from the government and other sources. The Institutionalisation of “social audits” to ensure
• Collective platform: SA provides a collective platform implementation of the National Rural Employment Guarantee
such as a social audit Gram Sabha, for people to express Act (NREGA) has been challenging –
their common needs, resulting into social cohesion. • Since being included in the 2005 Act at the behest of social
MAKING SOCIAL AUDITS EFFECTIVE movements, social audits have been ineffective in most
Some of the points suggested in the Report of the Expert parts of the country due to government indifference.
Group on ‘Planning at the Grass roots Level’, 2006 are as • So far, 26 States have created social audit units (SAUs), but
follows – the Comptroller and Auditor General’s (CAG’s) detailed
(a) Social audit should not be individually prescribed for each guidelines are yet to be implemented.
scheme implemented by the local bodies. A multiplicity of • In the absence of any real commitment to make
social audits separately prescribed for each scheme mandatory social audits provisions a reality, the Central
undermines the importance of the process. and State governments have exacerbated the
(b) Legalising social Audits - Meghalaya has became the first implementation problems facing important social security
state in India to operationalise a law that makes social legislations such as NREGA and the National Food Security
audit of government programmes and schemes a part of Act.
government practice, other states must follow and give On March 19, 2018, the Supreme Court once again reminded
SA’s the legal teeth. the importance of social audits in improving government
(c) Social audit “action taken reports” have to be time bound practices. In its final judgment on the National Campaign
and placed in the public domain. It is advisable to precede Committee for Central Legislation on Construction Labour
a social audit with the action taken on the previous social (NCC-CL) petition on the implementation of the Building and
audit. Other Constructions Workers (Regulation of Employment and
Conditions of Service) Act, the Court directed the Ministry of
(d) Opportunity has to be given to people to inspect the
Labour and Employment, State governments and the UTs to
records of the local bodies particularly their
“conduct a social audit on the implementation of the BOCW
documentation on property lists, tax assessments and tax
Act so that in future there is better and more effective and
collected, measurement books and muster rolls.
meaningful implementation of the Act”.
(e) In case of PRIs it may also be advisable to adopt a system
where a higher level of Panchayat, such as the
Intermediate Panchayat, provide details of the
SPICE APPROACH
• Social audits give Community/society to scrutinise development initiatives of government and
maintains oversight on government functioning, thus reducing leakages and corruption
• Social Audits gives voice and influencing power to the Gram Sabha, the lynchpin of rural
Social dimension
governance structure.
• Through social audit platforms, people can express their common needs, resulting into social
cohesion.
• Institutionalising social audits and providing them legal backings (like Meghalaya) needs strong
Political/Legal
political will.
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LOCAL GOVERNMENT
Dimension
• A resource hub should be constituted (as recommended by 2nd ARC) under the National Institute
Institutional of Rural Development and Panchayati Raj (NIRD&PR) to provide assistance to State
dimension Governments and SAUs on parameters like training support, monitoring and evaluation, action
research, documentation and certification of trainers etc.
• Social audits breed a culture of participation, monitoring and oversight among masses.
Cultural dimension
• SA’s improves General accountability and responsibility of public.
• Social Audits functions poorly as they starve of necessary resources. In 2012, MoRD had
recommended 1 per cent of the expenses under MGNREGS for SA, which got reduced to 0.5 per
Economic
cent later.
dimension
• SA ensure accountability and transparency and curbs corruption; this effectively saves a lot of
revenue loss of public authorities.
►PESA – IMPLEMENTATION ISSUES • Clear rules have not been laid out with respect to
management of minor forest products and land, thereby
AND CHALLENGES making it more ambiguous to implement PESA. This is
The 73rd Constitutional Amendment Act, 1992 ushered in a impacting traditional and environmental rights of tribals.
national framework for local self-governance by creation of • Tribals in these areas already have settled customs to
Panchayati Raj Institutions (PRIs). This national framework address their governance problems. In some cases, they
was more or less uniformly applicable in all the states except are not very open to adopting a new Panchayati system.
Scheduled Areas prescribed in the Constitution of India. Often, tribal customary laws come in way of
The Provision of the Panchayat (Extension to the implementation of PESA provisions.
Scheduled Areas) Act, 1996(PESA) was enacted to bring the • Financial autonomy is merely on paper and Governor’s
Scheduled Areas in nine States of the country under the mandatory report are not prepared.
purview of national framework of Panchayat. This Act was
• Certain languages of the PESA Act are ambiguous in
framed in conformity with traditional tribal self-rule by
nature. In most of the cases, advantages of these dubious
entrusting extraordinary power to Gram Sabha which is not
languages are taken. For example, Section 4(i) envisages
laid down in the national framework of Panchayati Raj
that ‘the Gram Sabha or Panchayat at the appropriate level
Institutions (PRIs).
shall be consulted before making the acquisition of land in
But, even after three decades of enactment of this most the Scheduled Areas’ In this case, many a State
powerful Act, governments of the concerned States have strategically excludes the concerned Gram Sabhas from
made very little progress to implement this central Act in the consultation process before acquisition of land by
letter and spirit, mainly because - taking advantage of the term ‘or’ in the clause, which goes
• State’s Reluctance to Implement and Adopt PESA: While against the spirit of PESA
all 9 states have notified the act, there are ambiguities in • Many Scheduled area State subject laws are not in
their own rules framed about it. This is hindering its quick compliance with PESA (as shown in below table), which
adoption in their scheduled areas. becomes a hinderance for implementation of PESA
• Power struggle between tribal communities and ultimately.
bureaucracy has weakened the local governance.
In August 2016 order of the Supreme Court directing the
• Transfer of fund, functions and functionaries to the lower Nagaland government to reserve 33 per cent of seats in
level government has not taken place even after devolving the Urban Local Body elections for women met with
statutory powers to the Gram Sabha and Panchayats. massive protests from Naga tribal men who believe that
reservations are a threat to Naga customary laws and that
132
LOC
CAL GOVERN
NMENT
they violate th
he special righ
hts guarantee
ed to Nagaland state • Imposition of prohibition
n on certain isssues
under
u Article 371(A)
3 of the Constitution. • Having own
nership on no
on-timber foreest produce
• Exercising control
c over money
m lendingg
Pow
wers of Gram
m Sabha unde
er PESA Act –
• Exercising control
c over institutions
i an
nd functionarries in all
The
e powers whicch have been bestowed up
pon them mayy be
social secto
ors; and
desscribed as folllows:
• Having control over local plans and reesources.
• Prevention off land alienation
• Managementt of village ma
arkets
Reccommendatiions for effe ective implem

mentation off PESA d reduce fiscal deficit. XXaxacommitte
money and ee asked
Actt in schedule
e area states – Governmen
nt to use such
h land for tribaal-resettleme
ent.
Virg
ginius Xaxa Committee in 204 has recom mmended a sslew of • After miness are exhausted, return thee land back to
o original
meeasures for efffective implem
mentation of PESA act – owner. Am mend the Coal-Bearing Areas Act, 1957 to
• Promote smaall sized wate
er-harvesting
g structures instead implement this. In Scheduled Areas, only permit ttribals to
for
f large dam
ms. exploit mineral resourrces.policy m makers shou uld learn
lessons from Niyamagiri episode.
• Impose penalties on officiaals, if delayed
d implementa
ation of
Forest Rights Act or PESA. • Appoint a judicial
j comm
mission to in
nvestigate succh “naxal
cases” registered again
nst tribals aand their (no
on-tribal)
• Prevent all kinds of tribal land alienatio
on by making
g Gram
supporters.
Sabha’s
S consent compu ulsory for a any type off land
acquisition,
a even if the gov
vernment wa nts land for its own • Avoid making SalwaJudu
um like policiees to combat left wing
use. extremism..
• Earlier Vijay Kelkal Committee sugge ested that u unused

Government
G land should be
b sold off/lea
ased off to get more
SPICE APPROAC
A CH
• PESA aims to
o empower co ommunities while
w preservin ng their custo
omary traditio
ons, thus its
Social dimenssion
implementattion will stren
ngthen the soc
cial fabric of tribal
t commun nity.
• States will haave to give-up

p their relucta
ance and indiffference towards PESA and
d this needs political
Political/Legal
will of state a
authorities.
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LOCAL GOVERNMENT
Dimension • Legal ambiguities must be removed for harmonious synchronisation of PESA with various state
and central acts (eg. FRA 2006).
• Appropriate institutional arrangement to be created, as recommended by Xaxa committee, to

Institutional
utilise funds under the Centrally Sponsored Schemes (CSS) central sector schemes and funds
dimension
from State Governments
• PESA act is key to maintain cultural homogeneity and preserve their customary laws, while
empowering these communities of their basic rights.
Cultural dimension • A state legislation on the Panchayats in the Scheduled Areas shall be inconsonance with the
customary law, social and religious practicesandtraditional management practices of community
resources.
• Not recognising common property resources that tribes collectively manage is not only economic
injustice, but also breaks traditional order of tribal societies
Economic
• The FRA empower tribal communitiesthe sole right to sell minor forest proceeds from forests,
dimension
while PESA empowers them to resist land alienation, Exercising control over money lending and
control over local plans and resources.
►RAJASTHAN RELAXED • The court held that prescription of educational

qualification was justifiable for better administration and
EDUCATIONAL CRITERIA FOR LOCAL did not violate the right to equality enshrined in the
POLLS Constitution.
Haryana and Rajasthan are the states who mandate to ‘fix • Underlying rationale of educational qualification - Laying
minimum education qualification for thosecontesting in stress on qualitative administration with citizens having
Panchayat Raj Institutions (PRI’s)’. certain basic educational qualification. This would also
encourage children including girls to complete their
However, the new government of the state has removed such
secondary and higher secondary education.
educational requirements as a criterion to contest local polls.
In this analysis let us understand the educational criteria It ensures that candidate with basic education enables to
which were imposed and what were its probable impact in more effectively discharge various duties which befall the
the society. elected representatives.
CRITERAS Impact of removal of educational criteria
The following educational qualifications was made Literacy rate in Rajasthan according to the 2011 Census was
mandatory and now they are removed: 52% for women and 79% for men. Thus, the decision to
remove educational criteria to contest local polls helps in the
• Candidates contesting for the post of Sarpanch – should
following ways
have passed class 8.
• Restores the right to contest and
• Candidates contesting Zila Parishad and Panchayat Samiti
elections - should have passed class 10. • Allows representation from larger section of the
population.
Similar educational restrictions were placed in the state of
Haryana to contest local polls. The educational criteria to • Any stipulation including an educational requirement
contest local polls were challenged in Supreme Court. restricts a citizen’s right to contest elections.
CASE OF RAJBALA V. STATE OF HARYANA This challenges the basic premise of a republican democracy
as it takes away the right of people to contest elections just
• The Supreme Court declared the educational conditions
because they were unable to meet certain social indicators,
for local polls as constitutionally valid which were made in
which in the first place is state’s responsibility.
the Haryana Panchayati Raj Act.
134
LOC
CAL GOVERN
NMENT
Denying the righ ht to contest effectively resstricts the rig

ght of a
citizen to vote for
f a candida ate of his/herr choice since e more
thaan half the population is restricted from contesting be ecause
of the
t education nal criteria.
Succh a restricttion dispropo ortionately d
disenfranchise es the
moore marginal sections of society com mprising of w women,
dalits and poor. Moreover, it is the respon nsibility of the state
to provide
p educaation to its cittizens.
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SECTION-6
E LECTORAL R EFORMS
AND
E LECTION RELATED
ISSUES
ELECTORAL REFORMS AND ELECTION RELATED ISSUES
The Supreme Court of India, in the matter of “Public Interest of declaration of results. This period should be extended
Foundation & Others v Union of India & Another’s directed by amending section 77(1) to apply from the date of
the Law Commission of India to make suggestions on two notification of the elections to the date of declaration of
specific issues (i) curbing criminalization of politics and results.
needed law reforms and (ii) impact and consequences of • Amendment of Section 182(1) of Companies Act, 2013 –
candidates filing false affidavits and needed law reforms to Section 182(1) authorises the Board of Directors to pass
check such practice. In light of the judgment, the Commission the resolution authorizingthe contribution from the
worked specifically on these two areas and, after series of company’s funds to a political party. The Commission has
discussions, followed by a National Consultation on these suggested for passing of resolution of political funding
issues submitted its 244th Report titled “Electoral through company’s Annual General Meeting (AGM).
Disqualifications” on 24th February 2014 to the • The existing disclosure obligations of individual candidates
Government of India.After the submission of Report No.244, are limited to maintaining an account of electoral
the Commission circulated another questionnaire to all expenses under sections 77 and 78, RPA. The
registered national and State political parties to seek their Commission has proposed a new section 77A which
views. Hence, the Commission undertook an extensive study require candidates or their election agents to maintain an
to suggest electoral reforms, held various rounds of account and disclose the particulars including names,
discussions with the stakeholders and analysed in-depth the addresses and PAN card numbers of donors and amounts
issues involved. After detailed deliberations, the Commission contributed of
came up with its recommendations in Report No.255, titled i. any individual contribution received by them from any
“Electoral Reforms”. person or company, not being a Government company.
ii. any contribution by the political party to the candidate
from the date of notification of elections, which have to be
made by the party by a crossed account payee cheque or
►ELECTION FINANCE REFORM
draft or bank transfer.
The Law Commission has proposed wide ranging reforms on
• Political parties should be required to maintain and
the issue of candidate expenditure limits; disclosure
submitannual accounts to the Election Commission of
obligations of individual candidates and political parties; and
India every financial year. Such accounts must beduly
penalties imposable on political parties; as well as examining
audited by a qualified and practicing chartered
the issue of state funding of elections.
accountant from a panel of accountants maintained by the
THE PROBLEM Comptroller and Auditor General.
• Financial superiority translates into electoral advantage • Replacing Section 29C of RPA (Every political party to
and so richer candidates and parties have a greater chance declare donations in excess of Rs. 20,000 received from
of winning elections. This also increases illegal and corrupt any person or companies with Section 29D which requires
practices by candidates and political parties. This puts all political parties to –
other candidates on a lower footing and denies them a fair
i. Mandatorily disclose all contributions in excess of Rs.
opportunity to fight elections on equal grounds.
20,000.
• Use of money encourages widespread prevalence of
ii. Include aggregate contributions from a single donor
unaccounted money, bribery and quid pro quo corruption
amounting to Rs. 20,000 within its scope
which involves business groups who then expects a high
return on their investment through suitable policies and iii. Disclose the names, addresses and PAN card numbers (if
preferable treatment as kickbacks. applicable) of the donors along with the amount of each
donation above Rs. 20,000.
SUGGESTIONS
Note: The government following the suggestion of Law
• Change in Section 77 of Representation of People Act,
Commission has introduced the concept of Electoral Bonds.
1951(RPA) – Itregulates the election expenses incurred or
authorized by candidates or their election agents. It
currently extends from the date of nomination to the date
137
• Adding Section 29E in RPA which shall require the ECI to Permanent Account Number (PAN) along with above
make available publiclyall the contribution reports mentioned details.
submitted by all political parties under section 29D on its • So, effectively a candidate fighting an election is required
website or on file on payment of prescribed fee. to file an affidavit called Form 26, along with the
• The disqualification of a candidate for a failure to lodge an nomination that furnishes information on her assets,
account of election expenses and contributions reports liabilities, educational qualification and criminal
under section 77 and proposed section 77A should be antecedents, if any. This declaration in Form 26 is now
extended from the current three period up to a five year mandatory for all forthcoming elections.
period, so that a defaulting candidate may be ineligible to BENEFITS
contest at least the next elections.
• This move of the Election Commission will enhance public
• A new section 29H should be inserted penalising parties awareness and transparency about the financial details
that contravene the stipulations of section 29B, RPA about their candidates contesting Lok Sabha polls.
and section 182 of the Companies Act, 2013 in terms of
• Further, this will also help the voters aware of the wealth
accepting contributions from impermissible donors, by
accumulated by an incumbent MP and his entire family in
levying a penalty of five times the amount so accepted.
the last five years including Income Tax Returns and details
• A new section 29I shall be added to RPA which provides on any off-shore account. The candidates will be
for “Regulation of Electoral Trusts”. It shall provide accountable to their people for accumulation of wealth, if
detailing provisions pertaining to their entitlement to any in the last five years. This notification can be said to
accept contributions, disclosure obligations and penal add one more step in the electoral reforms.
provisions.
17TH LOK SABHA
►DECRIMINALISATION OF POLITICS
• All Political Parties sponsoring candidates for the Lok
Sabha/Legislative Assembly elections were required to The Decriminalisation of politics means prevention of people
maintain day-to-day accounts of all election campaign having a criminal background or those involved in criminal
expenses and submit the final accounts to the offences to enter into political arena. Section 8 of
Commission/CEO within 90 days/75 days of the completion Representation of People Act 1951 provides for
of Lok Sabha/Legislative Assembly elections. disqualifications to stand for election in case of conviction of
• Such accounts are uploaded on the website of the Election certain grounds. Thus, to prevent criminalisation of politics, it
Commission for public viewing. The political parties were was necessary to know about such people involved in
to file a part statement in addition to the final statement of criminal cases so as to prevent them from entering the
election expenditure in respect of lump-sum payments political arena. The Supreme Court in the latest judgment in
made by the party to the candidate within 30 days after Public Interest Foundation and Others v Union of India and
declaration of results of election to Lok Sabha/Legislative Another’shas asked the Parliament to enact a strong law to
Assemblies in prescribed format. restrain citizens facing trials for serious criminal offences
from standing in elections in India.
• The government also amended the Conduct of Elections
Rules, 1961 which makes it mandatory for candidates SUPREME COURT’S DIRECTIVES TO PARLIAMENT
contesting Assembly & Lok Sabha elections to disclose • It has directed political parties to publish online pending
their foreign assets & liabilities, IT Return information criminal cases of their candidates.
for five preceding years of the election including that of • Each contesting candidate shall fill up the form as provided
their spouse, members of the Hindu Undivided Family by the election Commission and form must contain all
if the candidate is a ‘Karta’ or coparcener and particulars.
dependents. Offshore assets, as per the notification,
• It shall state in bold letters with regards to the criminal
means “details of all deposits or investments in foreign
cases pending against the candidate.
banks and any other body or institution abroad and details
of all assets and liabilities in foreign countries”. The
candidates contesting election also had to provide their
138
• If a candidate is contesting an election on the ticket of a police report it can be easily misused against rival political
particular party, he/she is required to inform the party parties.
about the criminal cases pending against him/her. • However, the Law Commission did favour electoral
• The concerned political party shall be obligated to put up disqualification at the stage of framing of charges with
on its website the aforesaid information pertaining to adequate legal safeguard.
candidates having criminal antecedents.
17th Lok Sabha
• The candidate as well as the related political party shall
• This affidavit filed in Form 26 included information on
issue a declaration in newspaper and through the
criminal antecedents of the candidate, if any, assets
electronic medium about any pending criminal cases or
including the movable, immovable properties and
criminal past.
investments even in foreign countries, of the candidate,
EARLIER SUPREME COURT JUDGMENTS his/ her spouse and dependents, liabilities of the
• Supreme Court of India in the year 2002 in a landmark candidate, his/ her spouse and dependents and his/ her
judgment (Union of India v Association for Democratic educational qualifications.
reforms and Another) directed the Election Commission to • Candidates with criminal antecedents are required to
call for information on affidavit under Article 324 on
publish information in this regard in newspapers and
criminal background including
through Television channels on three occasions during the
ο previous conviction, campaign period.
ο acquittal or discharge along with fine; • A political party that sets up candidates with criminal
ο declaration of assets of the candidate and his/her antecedents is also required to publish information about
spouse along with number of dependants; criminal background of its candidates, both in its website
and also in newspapers and Television channel on three
ο liabilities including debts owed to any financial
occasions.
institution or otherwise ; and
ο educational qualification of the candidate.
• Again in the year 2005, the Supreme Court in Ramesh ►AGAINST REPEATED PROPAGANDA
Dalal vs. Union of India held that a sitting Member of
IN ELECTION
Parliament (MP) or Member of State Legislature (MLA) shall
also be subject to disqualification from contesting LAW COMMISSION 255TH REPORT
elections if he is convicted and sentenced to not less than • The Commission stated that the issue of paid news and
2 years of imprisonment by court of law. These judgments political advertisements should be regulated by
effectively disallowed people having criminal background including it as an offence under Representation of
to enter political field. People Act, 1951.
• Supreme Court in Public Interest Foundation and Ors. Vs. • Offence of Paid news include an electoral offence of
Union of India and Anotherrequested the Law Commission “paying for news” / “receiving payment for news” to
to expedite recommendation on the following issue: enhance a candidate’s prospects for elections. The
1. Whether disqualification should be triggered upon Commission also called for disqualification of such
conviction or upon framing of charges by the court or candidate in election.
upon the presentation of the report by the Investigating • In order to curb the practice of disguised political
Officer. advertisement, disclosure provisions should be made
2. Whether filing of false affidavits under Section 125A of mandatory for all forms of media.
the Representation of the People Act, 1951 (RPA) should • As per the Law Commission, the purpose of disclosure
be a ground for disqualification. is two fold
LAW COMMISSION REPORT i. To help the public identify the nature of the content
th
• Law Commission of India in its 244 Report did not (paid content or editorial content)
favour electoral disqualification at the stage of filing of the
139
ii. To keep the track of transactions between the on the content being posted on social media by
candidates and the media. Thus, a new section 127C candidates and political parties. All the election
should be i management related news was monitored vigorously
on all the major national and regional news channels
iii. Inserted in the RPA to deal with the non-disclosure of
during elections.
interests in political advertising. The ECI can regulate
the specifics of the disclosure required.
EC GUIDELINES -
17th Lok Sabha – Various Decisions by EC on social media
17th Lok Sabha violations by political parties
• Election Commission in a circular dated 3rd January, Prime Minister’s Address on Anti-Satellite - Defence
2017 has issued guidelines for dealing with Research and Development Organisation (DRDO) successfully
candidate’s advertisements on TV/Cable conducted an Anti-Satellite (A-SAT) missile test ‘Mission Shakti’
channels/newspapers owned by political parties or from the Dr AP J Abdul Kalam Island in Odisha. A DRDO-
their functionaries/office bearers during elections. developed Ballistic Missile Defence (BMD) Interceptor Missile
successfully engaged an Indian orbiting target satellite in Low
• The Commission has directed that if the candidates
Earth Orbit (LEO) in a ‘Hit to Kill’ mode. This great
or their sponsoring parties utilize TV/Cable
achievement was addressed to the nation by the Prime
Channel/Newspaper owned by them for promoting
Minister Narendra Modi. However, the address raised
the electoral prospects of the candidate, the
concerns especially by opposition parties regarding violation
expenses for the same must be disclosed in their
of Model Code of Conduct which has already had come into
Election Expenditure Statement made to the Election
effect. The Election Commission constituted a committee of
Commission.
officers who looked into this very issue. Election Commission
• The Media Certification and Monitoring on the basis of committee’s report has ruled that Prime
Committees shall keep a close watch on the contents Minister did not violate paragraph 4 of Part VII of Model
telecast on channels. The Election Commission (EC) Code of Conduct (MCC) by announcing through a nationally
has also amended the Model Code of Conduct televised address about ‘Mission Shakti’.
(MCC) and has prohibited political parties from
EC on Prime Minister’s Biopic & Web Series on PM Modi - A
releasing their manifestos in the last 48
petition was filed in the Supreme Court to prevent the biopic
hoursleading up to voting in each phase of the
on PM Modi from releasing on the due date of 11th April. The
coming Lok Sabha elections.
Supreme Court asked the Election Commission to decide
• The above change has been made in Part 8 of the whether the content of the movie which related to the Prime
MCC, which deals with poll manifestos. The EC’s Minister and his political party and their achievements during
decision stems from the recommendation of a 14- office are displayed for the purpose of electoral gains
member committee set up to revisit the MCC, Section during the period of Model Code of Conduct.
126 of the Representation of the People (RP) Act,
EC’s Order - The Election Commission while reviewing the
1951 which prohibits any form of poll campaign in the
political content displayed in electronic media including
last 48 hours leading up to voting), and other related
cinematograph, said that they had received complaint about
provisions in the wake of rapid media expansion.
certain cinemas violating MCC namely ‘NTR Laxmi’, ‘PM
• Candidates and political parties were to include all Narendra Modi’ and ‘Udyama Simham’. As per the
expenditure on campaigning, including expenditure complaints, these movies claimed to either diminish or
on advertisement on social media in their election advance the electoral prospects of a candidate or political
expenditure account including payments made to party in the garb of creative freedom.
internet companies and websites for carrying
The Commission in the above mentioned issue gave the
advertisements and also campaign related
following orders:
operational expenditure on making creative
development of content, salaries and wages paid to  Any biopic material in the nature of
the team of workers employed to maintain their biography/hagiography (portraying lives of saints)
social media account. having political purpose and also having the potential
to disturb level playing field during elections, should
• All the provisions of Model Code of Conduct applied
140
not be displayed in electronic media including films publicity regarding achievement with a view of
during the operation of MCC. furthering the prospects of the party.
 That any poster or publicity material concerning any  The Election Commission observed that air time given
certified content which either depicts a candidate for to various political parties is disproportionate and
the furtherance of electoral prospect, directly or not balanced which is not in accordance with the
indirectly shall not be put to display in principles of maintaining neutrality and a level playing
electronic/print media in area where MCC is in field.
operation.  The Election Commission directed Doordarshan to
 If in any certified cinematograph material, there exist a "desist" from extending any preferential or
violation or on receipt of complaints in this regard, a disproportionate airtime coverage in favour of any
Committee shall be constituted by the Commission party and extend commensurate and balanced
which shall examine the issue and suggest appropriate coverage of the activities of all recognised political
action. This Committee shall be headed by a retired parties.
Justice of Supreme Court or retired Chief Justice of any  The Commission also directed
High Court. officials/anchors/moderators of the channels present
In the case of web series on PM, EC observed that since the on TV shows/debates not to exhibit any bias, prejudice
PM was himself a prospective candidate in the general or slant in their reporting towards any political party.
election of 2019, hence ordered to stop further streaming of
the web series as it violated the MCC. Part of Subject for guidance of political
MCC candidates & candidates
EC on NAMO TV - Election Commission received complaints
about the political content being aired on NAMO TV leading Part 1 General Conduct
to electoral gains for a particular political party. In this regard
the Election Commission gave the following orders with Part 2 Meetings
respect to airing of content on NAMO TV: Part 3 Procession
 All political advertisement and all recorded
programmes with political contents are mandatorily Part 4 Polling Day
required to be pre-certified by the Media Certification Part 5 Polling Booth
and Monitoring Committee (MCMC) before its telecast
for the common public. Part 6 Observers
 Any political publicity materials/contents being Part 7 Party in Power
displayed on electronic media without pre-certification
by MCMC shall be removed immediately. Part 8 Guidelines on Election Manifestos
 Political content, if aired must be in conformity of
permission granted by the Election Commission. Thus,
EC disallowed airing of any political content on NAMO ►REGULATION OF POLITICAL
TV which could have benefitted the electoral prospects
PARTIES AND INNER PARTY
of ruling party.
EC on Political Coverage on DD News - The "Main Bhi
DEMOCRACY
Chowkidar" programme of the prime minister was broadcast Section 29A (5) of RPA, 1951 provides for Registration with
live on DD News and its YouTube channel, and was even the Election Commission of associations and bodies as
promoted on the social media handles of DD News.The political parties. It mentions that any association or body of
complaint to EC alleged that DD News was used as a tool to individual citizens of India calling itself a political party shall
promote and advertise Prime Minister Narendra Modi's make an application to the Election Commission for its
"Main Bhi Chowkidar" event. registration as a political party accompanied by a copy of the
 The Commission asked DD News to observe Model memorandum or rules and regulations of the association or
Code of Conduct and avoid misuse of official mass body. The rules shall contain a specific provision that the
media during the election period for partisan association or body shall bear true faith and allegiance to the
coverage of political news and publicity news and
141
Constitution of India and to the principles of socialism, Additional Particulars) Order, 1992, separately. However, the
secularism and democracy and would uphold the RPA, 1951 has not empowered Election Commission to de-
sovereignty, unity and integrity of India. register political parties.
It is in this regard, the 255th Law Commission Report has The Supreme Court in the case of Indian National Congress (I) v
recommended to amend the above provision by adding that Institute of Social Welfare made it clear that neither Section
such rules of a political party must also contain a specific 29A of the RPA, 1951 nor the provisions of the Election
provision stating that the party would shun violence for Symbols (Reservation and Allotment) Order, 1968
political gains and would avoid discrimination or distinction hasempowered the ECI to de-register parties on the grounds
based on race, caste, creed, language or place of residence. of violating the Constitution or breaching the undertaking
Further, a new chapter IVC should be inserted dealing with given to it at the time of registration. Thus, there is no
the “Regulation of Political Parties” and incorporating the mechanism to review a party’s practice against the principles
Commission’s previous recommendations in its 170th Report enshrined in the Constitution or against the requirements of
with certain modifications. the ECI’s Guidelines and Application Format for the
th
170 Report highlights that political parties can be freely Registration of Political Parties under Section 29A. A party can
established and that their internal organisation shall conform only be de-registered if its registration was obtained by fraud,
to democratic principles. It further says that the political if it is declared illegal by the Central Government or if a party
parties should publicly account for the sources and use of amends its internal Constitution and notified the Election
their funds and for their assets. There is also need for more Commission that it can no longer abide by the Indian
institutionalization in resolution of disputes in the conduct of Constitution. There is also no power of de-registration if
internal elections, in organising party intelligence and parties registered under section 29A of the RPA continue to
research, in policy-decision making, in maintaining party's avail of tax benefits under section 13A of the Income Tax Act,
own federal relations, in-party-government communications 1961 without contesting elections. Thus, RPA thus needs to
and above all in regard to the whole process of selection be amended to empower the ECI to de-register a political
of candidates for different types of elections including party. This view is expressed by Law Commission in
general elections. 170th Report also highlighted the its255th Report on Electoral Reforms.
importance of secularism and maintained that democracy Early attempt of EC -Election Commission in 2016 had
and accountability must constitute the core system of a launched an initiative to review the cases of such registered
political party as they are integral to parliamentary unrecognized political parties. On review it found that many
democracy. It is the political parties that form the political parties had never contested elections for panchayat,
government, man the Parliament and run the governance municipality, state assembly or Lok Sabha since 2005. The
of the country. It is therefore, necessary to introduce Election Commission accordingly deleted the names of 255
internal democracy, financial transparency and political parties from its list and also asked Central Board of
accountability in the working of the political parties. Each Direct Taxes (CBDT) to initiate appropriate measures against
political party must frame its constitution defining its aims such political parties.
and objectives which shall not be inconsistent with The Petition - A petition was filed in the Supreme Court
constitutional norms. which urged to ban such political parties whose office bearer
is a convicted person. The petition also urged the Supreme
Court to empower Election Commission of India to deregister
►DE-REGISTERING OF POLITICAL or cancel registration of political parties under section 29A of
PARTY the Representation of People Act, 1951 if office holders of the
party are found to be convicted criminals. The petitioner also
For the purpose of registration of any association or body of
urged the Court to ban such office bearers of political parties
individual citizens of India as a political party, the association
from contesting elections as this move will help in
or body is required to make an application to the Election
decriminalisation of politics and regulate inner party
Commission of India giving therein full particulars required
democracy.
under sub-section (4) of Section 29A of the Representation of
the People Act (RPA), 1951 and additional particulars required Plea of Election Commission - Election Commission in an
under the Registration of Political Parties (Furnishing of affidavit filed in the Supreme Court also asked the Supreme
142
Court to empower it to de-register political parties if they Follow up by authorities - Once the complaint is lodged, the
violate constitutional and other legal provisions pertaining to information will beep in the District Control Room from
conduct of transparent, free and fair elections. Election where it will be assigned to a Field Unit. A field unit consists
Commission pleaded to empower it to issue necessary orders of Flying Squads, Static Surveillance Teams, Reserve teams
regulating registration and de-registration of political etc. Each Field Unit will have a GIS-based mobile application
partiesparticularly in view of its constitutional mandate. called ‘cVIGIL Dispatcher’, which will allow the unit to directly
View of Government - The central government has opposed reach the location through navigation technology and take
this plea to allow election commission with power to de- action. After a Field Unit has taken action, it messages and
register criminal party. The government argued that granting uploads the relevant document as ‘Action Taken Report’ via
such powers to election commission will tantamount to the ‘cVIGIL Dispatcher’ to the returning officer concerned for
making law which is not within the jurisdictional realm of his decision and disposal. If the incident is found correct, the
judiciary. information is sent to the National Grievance Portal of the
Election Commission of India for further action and the
vigilant citizen is informed about the action taken within a
hundred minutes.
►EC LAUNCHES APP TO REPORT
Benefits - “cVIGIL” will allow anyone in the election-bound
MALPRACTICE – cVIGIL state to report violationsof Model Code of Conduct (MCC)
About the app – cVIGIL is an online application for citizens to which comes into effect from the date of announcement of
report on model code of conduct violations during the elections and goes on till a day after the polls. By using this
election period. The application is called as cVIGIL, denoting app, citizens can immediately report on incidents of
Vigilant Citizen and the proactive and responsible role he misconduct within minutes of having witnessed them and
can play in the conduct of free and fair elections in India. The without having to rush to the office of the returning officer to
app c-VIGIL aims to share proof of malpractices by political lodge a complaint. The use of app will allow the officials to
parties, their candidates and activists when the Model Code take immediate actions thereby creating a deterrent effect on
of Conduct (MCC) is in force. The new app provides a miscreants and wrong-doers who interfere in the conduct of
framework for fast-track complaint reception and redressal free and fair elections. Use of app will save unnecessary
system. It alsoaims at community participation by playing a procedural delays in reporting a violation and will also
proactive and responsible role in the conduct of free and fair improve transparency in the conduct of elections. Each
elections across the country. “cVIGIL" is a user-friendly and reported incident is tracked and scrutinised from the
easy to operate Android application. It will be operational beginning to the end point, thus bringing accountability into
only where elections are announced. The application will be the system. This will also keep the election authorities on
made available for general use for all in the forthcoming their toes and will help the commission achieve its objective
Assembly elections in the States of Chhattisgarh, Madhya of conducting free and fair elections.
Pradesh, Mizoram and Rajasthan. The practical use of the app Prevention of misuse of app - For prevention of misuse, the
during the four-state Assembly polls will also serve as a pilot app has been loaded with some inbuilt features. Primary
initiative before it is put to extensive use during the next Lok among them is that it will receive only MCC violations. To
Sabha General Elections due in May 2019. prevent any misuse, the app will not allow uploading of the
Working of the app – The vigilant citizen has to click a pre-recorded or old images and videos. The app allows the
picture or a video, describe the activity and upload it through user 5 minutes to submit an incidence report after having
mobile application. This will enable the flying squads to reach clicked a picture or a video. The photos/videos clicked via this
the spot in a matter of few minutes. The automated location app cannot be saved in the gallery. The application will be
mapping will be done by the app using the Geographic made active only in those States where elections have been
Information System (GIS). After its successful submission announced. The moment a citizen goes outside an election-
through the app, the vigilant citizen gets a Unique ID to track bound State, the app will become inactive.
and receive the follow up updates on her or his mobile. The
identity of the complainant will be kept confidential.
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► ELECTORAL BONDS 7.5% of its Average Net Profit in the three preceding
years.
The concept of electoral bond was introduced in the Budget
• However, through amendment in Companies Act, 2013,
of 2017-18 for a check on political funding. The Ministry of
the government has removed -
Finance recently notified the Scheme of Electoral Bonds.
Electoral Bonds are bearer instrument in the nature of a  Cap of 7.5% on political donations by companies
Promissory Note and are an interest free banking  Need to disclose name of political party to which the
instrument. Electoral Bond shall be issued for any value, in company has contributed
multiples of - Rs.1,000, Rs.10,000, Rs.1,00,000, Rs.10,00,000
• Now any company can donate any amount of cash
and Rs.1,00,00,000 from the Specified Branches of the State
through electoral bonds and the identity of such company
Bank of India (SBI).
shall not be disclosed. Thus, shell companies can be
The purchaser would be allowed to buy Electoral Bonds only formed just for political funding and can be a source of
on due fulfillment of all the extant KYC norms and by making corruption.
payment from a bank account. It will not carry the name of
payee. Electoral Bonds would have a life of only 15 days
during which it can be used for making donation only to
► EVMS, VVPAT & CHALLENGES
political parties:
Malfunctioning of EVMs and VVPAT were in news last year
• Which are registered under section 29A of the
during the conduct of by polls for lok Sabha and state
Representation of the Peoples Act, 1951; and
assembly elections. Almost one-fifth of VVPAT machines had
• Which has secured not less than one per cent of the to be replaced in UP’s Kairana and Maharashtra’s Bhandara-
votes polled in the last general election to the House of Gondiya followed by 13.16% in Palghar Lok Sabha seats due
the People or to Legislative Assembly? to complaints of their malfunctioning. This resulted in re-
Every political party in its returns will have to disclose the polling at several booths due to delay caused during the day
amount of donations it has received through electoral bonds of voting causing hassles to a large number of voters. The
to the Election Commission. opposition parties raised doubts about efficacy of such EVMs
DEMERITS and VVPAT machines before the Election Commission (EC)
and also demanded restoration of ballot paper for the
• As per Section 29C of Representation of People Act,
upcoming elections. Malfunctioning of some of the EVMs was
1951 – Every political party had to declare donations in
also reported in the recently held Gujarat and Karnataka
excess of Rs. 20,000 received from any person or
Assembly elections. Such reports have increased the
companies.
suspicion regarding tampering of election process across
• As per Section 13-A of Income Tax Act, 1961 political political spectrum.
parties were supposed to maintain records of
Problems with cross verification - In Madhya Pradesh, the
contributions made in excess of Rs. 20,000 along with the
number of votes polled did not match the number of votes
names and address of all donors.
counted in 204 out of the 230 constituencies. This signals lack
• However, an amendment made in the Finance Act, 2017 of cross-verification on part of Election Commission. A
has kept electoral bonds out of the purview of both petition was filed in Supreme Court for cross verification of
these provisions. Electronic Voting Machines (EVMs) and Voter Verifiable Paper
• Thus, the donor is not required to disclose the name of Audit Trail (VVPAT) in at least 30% randomly chosen polling
political party while purchasing electoral bonds and stations in each Assembly and Lok Sabha constituency for
political parties are not required to maintain records of the greater transparency and trustworthiness of the election
donors. This affects the cause of transparency in the process. The petition contended that such cross-verification
funding of elections. and counting of VVPAT slips is essential in the interest of
democratic principles which are:
• As per Section 182 of Companies Act, 2013, a company
must be at least three years old to contribute to a party • Elections should be transparent,
and its contribution could not have been more than • Elections should be subject to public scrutiny and
144
• Process of election including casting of votes should be enhances trustworthiness of election process including voter
verifiable. confidence. Thus, proper functioning of (VVPAT) Units
The petition says that the present way of random choosing of becomes extremely significant. The Election Commission
VVPAT for cross-verification at polling stations is manifestly must ensure effective working of VVPAT & EVMs on a large
arbitrary, irrational and unreasonable. Further, this gives the scale. This will further improve confidence in EVMs and
polling authorities fair amount of discretion to randomly VVPATs which is an essential ingredient of a fair democratic
chose VVPATs at any polling station which can lead to bias or process.
mischief. Thus, the petition claimed that the counts from Recommendations of Technical Expert Committee of EC -
electronic voting machines and voter verified paper audit trail In the wake of the motivated controversy about EVMs used
(VVPAT) units should be cross-verified in at least 30% by Election Commission of India (ECI), attempted to be
randomly chosen polling stations in each Assembly and created by one so called ‘cyber expert’ Mr. Syed Shuja, the
Lok Sabha constituency. However, Supreme Court allowed Technical Experts Committee (TEC) members have made the
cross verification of five EVMs in every constituency for the following recommendations to Election Commission of India:
17th Lok Sabha, 2019. • The ECI-EVMs are stand-alone machines designed to
Action taken by EC - To ascertain the causes and failure of connect only amongst ECI-EVM units (Ballot Unit, Control
VVPAT machines, EC had deputed two Special Teams. The Unit and VVPAT) through cables that remain in full public
preliminary fact finding reports submitted to EC have view. There is no mechanism in ECI-EVMs to communicate
indicated that two sensors of EVM namely Contrast Sensor with any device through wireless communication on any
and Length Sensor malfunctioned due to excessive exposure Radio Frequency. All versions of ECI-EVMs are regularly
to illumination. Thus, sensitivity to extreme weather and rigorously tested against low to high wireless
conditions and exposure to light is being considered as one frequencies. These tests include and go beyond the
of the main reasons for malfunctioning of EVMs. EC also standard tests specified for electronic equipments.
blamed the relative inexperience of polling officers • ECI-EVMs are regularly tested for proper functioning under
handlingVPAT, compared to the ballot and control units for all kind of operating conditions.
the electronic voting machines (EVMs) that have been in use
• ECI-EVMs are also regularly tested for code authentication
for much longer.
and verification.
The EC has asked the Manufacturers - Electronics
• TEC clarified that VVPATs use thermal printers which can
Corporation of India Limited (ECIL) and Bharat Electronics
print only on one side of thermal paper. The print is fully
Limited (BEL) and Technical Expert Committee (TEC) to
visible through the viewing window. The paper rolls used
suggest additional design improvements including
in VVPATs have only one-sided thermal coating and hence
suggestions on any layout changes at the polling stations to
can be printed only on one side. The VVPAT paper print
prevent excessive exposure to heat in future. Manufacturers
lasts atleast for five years.
have also been asked to do a detailed technical analysis of
VVPAT machines. EC has decided to make stricter checking However, TEC members reiterated that ECI-EVMs might
process prior to its approval for use in elections. EC has also malfunction sometimes like any other machine due to
adopted improvement in hardware of EVM as recommended component failures and stop working, but even such a
by TEC of the Commission to prevent auto shutdown of malfunctioning ECI-EVM would not record any vote
VVPATs due to excessive light and heat.EC has also suggested incorrectly. It is reaffirmed that ECI-EVMs cannot be
to further strengthen and streamline the training tampered. Thus, in a democracy transparency, verifiability
programmes of polling officials to minimise failures due to and secrecy must accompany the voting process. Election
human errors in handling EVMs and VVPAT for the upcoming Commission must provide the people of India a polling
elections to be held in India. process which is beyond suspicion as this is a basic
requirement for democratic legitimacy.
Trustworthiness of elections – It is the duty of Election
Commission to ensure the conduct of elections in a free, fair
and transparent manner. In this aspect, the Election
Commission must ensure proper working of EVMs and
VVPATs at all polling booths. Proper functioning of VVPAT
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►AUTONOMY OF ELECTION Election Commissioner should be on the basis of seniority,

unless the three member collegium/committee, for reasons
COMMISSION OF INDIA to be recorded in writing, finds such Commissioner unfit.
The Election Commission of India in fresh push for its Amendments should be made in the Election Commission
autonomy has sought complete independence from (Conditions of Service of Election Commissioners and
government control including financial autonomy in its Transaction of Business) Act, 1991 to reflect this. A new sub-
meeting with the Law Secretary. The Chief Election clause (2A) should be added to Article 324 of the Constitution
Commissioner has also demanded constitutional protection to provide for a separate independent and permanent
for the other two Election Commissioners who as of now do Secretariat for the ECI along the lines of the Lok Sabha/Rajya
not enjoy the same constitutional status in terms of tenure Sabha Secretariats under Article 98 of the Constitution. This
and removal as enjoyed by the Chief Election Commissioner. will further improve the independence of the ECI.
• Currently, only the CEC can be removed through

impeachment whereas the other two Election
►REGULATING PAID NEWS
Commissioners can be removed by the government on
the recommendation of the CEC. In a world where media is heavily corporatized and is run by
associations having close links to political affiliates, then it
• The Election Commission with respect to financial
becomes easy to mould the narrative of national debate
autonomy wants its budget to be “charged” to the
through prime time news. In our journey of electoral
Consolidated Fund of India (like CAG & UPSC) as opposed
democracy, paid news appears in various format and it
to the current practice of being voted and approved by
becomes essential to fight the menace of paid news in
Parliament as it gives discretion to the Parliament on
various forms so that it does not impact the conduct of free,
approving the budget of Election Commission.
fair and transparent election and also to ensure that
• The financial dependency of the Commission can be fundamental freedom of speech of citizens are protected.
further gauged from the fact that it was only after Thus, there is a need for a delicate balance to ensure equity
Supreme Court’s direction that the government of India and transparency in election process. Paid news is governed
granted funds for having VVPAT at all polling booths for through section 10A of RPA, 1951 which provides for
the upcoming 2019 Lok Sabha Elections. disqualification for failure to lodge account of election
The 255th Law Commission Report suggests that the ECI expenses.
should be strengthened by Section 10A - If the Election Commission is satisfied that a
1. giving equal constitutional protection to all members of person— (a) has failed to lodge an account of election
the Commission in matters of removability; expenses within the time and in the manner required by or
2. making the appointment process of the Election under this Act; and (b) has no good reason or justification for
Commissioners and the CEC consultative; and the failure, the Election Commission shall, by order published
in the Official Gazette, declare him to be disqualified and
3. creating a permanent and independent Secretariat for the
any such person shall be disqualified for a period of three
ECI.
years from the date of the order.
Article 324(5) of the Constitution should be amended to th
There are recommendations of 255 Law Commission report
equate the removal procedures of the two Election
as well as report of Parliamentary Standing Committee on
Commissioners with that of the Chief Election Commissioner.
Paid News. Press Council of India (PCI) defines paid news as
Thus, equal constitutional protection should be given to all
any news or analysis appearing in print or electronic media
members of the ECI in matters of removability from office.
for consideration in cash or kind. The Committee
The appointment of all the Election Commissioners, including
acknowledged challenges in defining and determining what
the CEC, should be made by the President in consultation
constitutes or qualifies as ‘paid news’. It cited advertisements
with a three-member collegium or selection committee,
camouflaged as news, denial of coverage to select electoral
consisting of the Prime Minister; the Leader of the
candidates, exchanging of advertisement space for equity
Oppositionof the Lok Sabha (or the leader of the largest
stakes between media houses and corporate and the rise in
opposition party in the Lok Sabha in terms of numerical
paid content as manifestations of paid news.
strength); and the Chief Justice of India. Elevation of an
146
autonomy and wage conditions. The Committee found the

About Press Council of India
exiting regulatory set-up dealing with paid news as
Press Council of India is a statutory body established under inadequate. It described voluntary self-regulatory industry
The Press Council of India Act, 1978. The First Press bodies like the News Broadcasting Standards Authority and
Commission of 1954 recommended constituting Press Broadcasting Content Complaints Council as an ‘eye wash’. It
Council of India. The objectives of the Council are: to found the punitive powers of statutory regulators like the PCI
safeguard the freedom of the press; to ensure on the part of and Electronic Media Monitoring Centre (EMMC) to be
the Press the maintenance of High standards of public taste inadequate. It also highlighted the conflict of interest
and to foster due sense of both the rights and responsibilities inherent with appointment of media-owners as members of
of citizenship" and " to encourage the growth of sense of the PCI or self-regulatory bodies.
responsibility and public service among all those engaged in The Department-Related Parliamentary Standing
the profession of journalism." The Commission, Committee on Information Technology in its 47th report
recommended the establishment of the Council on a on the “Issues Related to Paid News” gave the following
statutory basis on the ground that the Council should have recommendations.
legal authority to make inquiries as otherwise each member,
• There should be statutory body having eminent persons as
as well as the Council as a whole, would be subject to the
its members to look into all media contents both from
threat of legal action from those whom it sought to punish by
print media and electronic media (TV as well as Radio) with
exposure. The Press Council of India was first constituted
powers to take strong action against the defaulters. Under
on 4th July, 1966 as an autonomous, statutory, quasi-judicial
this process PCI shall be wound up. OR
body, with Shri Justice J R Mudholkar, then a Judge of the
Supreme Court, as Chairman. The Council set up under the • PCI should be revamped and cast with powers to take care
Act of 1965 functioned till December 1975. During the of print media and a similar statutory body is set up for
Internal Emergency, the Act was repealed and the Council electronic media. In both the above situation, the
abolished. A fresh legislation providing for the establishment Committee recommended that the media
of the Council was enacted in 1978 leading to the enactment owners/interested parties should not be a part of the
of The Press Council of India Act, 1978. Apart from ensuring proposed Media Council/body including revamped PCI.
independence of newspapers, Press Council also have • Election laws/rules should be reviewed and strengthened
powers of Censure. For the purpose of performing its to curb the paid news menace in election process. While
functions or holding any inquiry under this Act, the Council reviewing the election laws/rules, the ECI should be
shall have the same powers throughout India as are vested in empowered with not only dealing with the cases relating to
a civil court while trying a suit under the Code of Civil suppression of expenditure in the election on account of
Procedure, 1908 with respect to the following: paid news but for also taking action against the defaulting
 summoning and enforcing the attendance of candidate as also the concerned Media entity found
persons and examining them on oath indulged in Paid News.
 requiring the discovery and inspection of documents RECOMMENDATIONS OF 255TH LAW COMMISSION
REPORT
 receiving evidence on affidavits
The issue of paid news and political advertisements should
 requisitioning any public record or copies thereof
be regulated in the RPA in the following manner:
from any court or office
• The definitions of “paying for news”, “receiving payment
 issuing commissions for the examination of
for news” and “political advertisement” should be inserted
witnesses or documents
in section 2 of the RPA.
The Committee identified corporatisation of media, • Paid news must be included as corrupt practice under its
desegregation of ownership and editorial roles, decline in definition.
autonomy of editors/journalists due to emergence of
• If a candidate is found guilty of an electoral offence of
contract system and poor wage levels of journalists as key
“paying for news” / “receiving payment for news”, then
reasons for the rise in the incidence of paid news. It urged
such candidate must be disqualified to contest elections.
the MoIB to ensure periodic review of the editor/journalist
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• In order to curb the practice of disguised political • Preferences indicated in the nomination papers are taken
advertisement, disclosure provisions should be made into account and it’s the Returning officer who finally
mandatory for all forms of media. The purpose of assesses whether there is any other contender for the
disclosure is two fold: same symbol and then takes the call based on the rules
1. to help the public identify the nature of the paid content declared in Election Symbols (Reservation and Allotment)
or editorial content and Order, 1968.
2. to keep the track of transactions between the • If a member has been elected as “Independent”, then he /
candidates and the media. she would be disqualified if they join any political party
after their election.
• Thus, a new section 127C should be inserted in the RPA,
1951 to deal with the non-disclosure of interests in political VIEWS OF ELECTION COMMISSION & LAW COMMISSION
advertising. The ECI can regulate the specifics of the ON INDEPENDENT CANDIDATES CONTESTING POLLS
disclosure required. • The Election Commission has recommended in the past
that only those independent candidates who have a
previous record of winning local election should be
►CONCEPT OF INDEPENDENT allowed to contest for Parliamentary or Assembly
elections.
CANDIDATES
• The commission had also recommended doubling the
An independent candidate is someone who contests polls security deposits for independent candidates to put a
independently, without being affiliated /associated to any check on their proliferation and prevent malpractices in
political party. Often candidates decide to contest elections the election process because of their influx.
alone since they do not find any political party aligned to their
• The Commission also had clearly advocated for barring
political beliefs.
independent candidates from contesting elections for a
ELIGIBILITY CANDIDATE minimum of 6 years if they fail to secure at least five
• The eligibility criteria for independent candidates are percent of the total number of votes cast in their
same as that of other members from any political party constituencies.
who wish to contest elections either in Lok Sabha or in • It was also suggested that the independent candidate who
State Legislative Assembly. Thus, for Lok Sabha and State loses election three times consecutively should be
Legislative Assembly, the independent candidate must be “permanently debarred” from contesting election.
a citizen of India and should not be less than 25 years of
• The 255th Law CommissionReport has recommended
age.
that independent candidates be disbarred from
• The nomination paper of an independent candidate must contesting elections because the current regime allows a
be subscribed by ten proposers who are also electors of proliferation of independents, who are mostly
the constituency. Under the Representation of the People dummy/non-serious candidates or those who stand (with
Act 1951, this is mandatory for independent candidates the same name) only to increase the voters’ confusion.
and those candidates who belong to unrecognized political Thus, sections 4 and 5 of the RPA should be amended to
parties. provide for only political parties registered with the ECI
• The law is little stricter for the independent candidates as under section 11(4) to contest Lok Sabha or Vidhan Sabha
candidates fielded by recognised political parties need to elections.
have only one proposer for their nomination.
• The candidate contesting as independent is allowed to
choose three free symbols listed by the Election ►NONE OF THE ABOVE (NOTA)
Commission. Following which, they have to name them in After Supreme Court’s judgment in PUCL v. Union of India in
order of preference and mention it in their nomination 2013, Election Commission of India has allowed NOTA as an
papers. option in its election process. However, NOTA does not
148
provide for right to reject. Thus, the candidate with • The Law Commission in its report has highlighted that it is
maximum number of votes wins the election. not in favour of introducing the right to recall in any form
REASONS FOR NOTA because it can lead to an excess of democracy,
undermines the independence of the elected
• The option of NOTA on the EVM gives the voters the option
candidates, ignores minority interests, increases
not to vote for any of the candidates in the election.
instability and chaos, increases chances of misuse and
Hence, it can be said to be a negative vote.
abuse, is difficult and expensive to implement in practice,
• Significant votes for NOTA signify voter’s preference not to especially given that India follows the first past the post
elect any of the candidates fielded by various political system.
parties.
GIVING NOTA A CHANCE
• It was with this perspective, the concept of NOTA was
• Votes casted for NOTA need to be recognised despite its
allowed in Indian elections from September 2013 by the
electoral non-significance. But to do so, NOTA has to be
Supreme Court.
declared as a “person” under the eyes of law.
• As per the Court, it would give people the option to reject
• This will atleast give NOTA some credence and voters a
which would make political parties filed better candidates.
sense of pride for their votes casted. Some of these
PROBLEMS WITH NOTA utopian ideas have been implemented by State Election
• Scope of NOTA remains limited under the present law as Commission of Haryana.
NOTA does not amount to Right to Reject. • State Election Commission of Haryana in compliance with
the Supreme Court’s directive in PUCL v Union of India, has
Candidates Number of Votes
issued an order regarding application of NOTA option in
A 8 the local body elections.
• As per the notification, NOTA shall be treated as a ‘Fictional
B 13
Electoral Candidate’ while declaring the election results.
C 11 • So in case, a contesting candidate and the “Fictional
Electoral Candidate’ i.e. NOTA receive highest equal
D 10
number valid votes then the contesting candidate (not
E 6 NOTA) shall be declared as elected.
• However, if in any election, all the contesting candidates
NOTA 29
individually receive lesser votes than the ‘Fictional Electoral
Candidate’ i.e. NOTA, then none of the contesting
candidates will be declared as elected and re-election shall
• The above examples shows number of votes garnered in a
be held for the seat.
constituency. Despite NOTA getting the maximum votes, B
will be declared as the winner. • Further all such contesting candidates who have secured
less votes than NOTA shall not be eligible to re-file the
• As per the present law, irrespective of the option of NOTA,
nomination/contest the re-election.
some candidate is declared winner in their respective
constituency on the basis of First-Past-the-Post system. In re-election, if NOTA again gets highest votes then further
election will not be conducted and contesting candidate with
• Thus, as of now, the effect of NOTA in reality does not
highest votes (excluding NOTA) shall be declared as elected.
seem to be having any electoral effect in the present
The Law Commission has rejected the extension of the NOTA
circumstances and it has become only a “Protest Vote”
principle to introduce a right to reject the candidate and
without having any electoral significance.
invalidate the election in cases where a majority of the votes
RIGHT TO CALL
have been polled in favour of the NOTA option. This is
• Right to recall refers to an election where citizens decide to premised on the fact that, first, the underlying premise of the
recall a particular candidate of a constituency if they are Supreme Court’s decision in NOTA was the importance of
not satisfied with their work. safeguarding the right to secrecy, and this secrecy rationale
does not pre-empt the right to reject. Second, good
149
governance, the motivating factor behind the right to reject, election of that candidate or to affect the election
can be successfully achieved by bringing about changes in prospect of any rival candidate.
political horizontal accountability, inner party ο The promotion of, or attempt to promote, feelings
democracy, and decriminalisation. However, the issue ofenmity or hatred between different classes of the
might be reconsidered again in the future. citizens of India on grounds of religion, race, caste,
community, or language, by a candidate or his agent or
any other person.
►ELECTION PETITION ο The propagation of the practice or the commission of
An Election petition is a process to inquire into the validity of sati or its glorification for election prospects.
the election results of different kinds of elections conducted ο Publication of any false statements about rival
by the Election Commission. It is a means under law to candidates – including their personal character and
challenge the election of a candidate in a Parliamentary, conduct.
Assembly or local election. Election petitions are filed in the
ο Getting any assistance from any gazetted officer to
High Court of the particular state in which the election was
enhance election prospects.
conducted. Therefore, only the High Courts have the original
jurisdiction on deciding on election petitions. In India, Punishment: Any person who in connection with an election
Representation of People Act, 1951 provides for the under this Act promotes or attempts to promote on grounds
manner in which election petition can be filed. Let us go of religion, race, caste, community or language, feelings of
through important provisions of the 1951 to know more enmity or hatred, between different classes of the citizens of
about election petition and its causes and impact. India shall be punishable with imprisonment for a term
which may extend to three years or with fine or with
• An election petition can be filed by any candidate, or an
both.
elector relating to the election personally, to the
authorized officer of the High Court. Disputes regarding elections has been dealt in Part VI of
Representation of People Act (RPA), 1951.
• An election petition calling in question an election shall be
filed within the time period of forty-five days from the date • As per Section 80 of RPA 1951, any issue with respect to an
of declaration of results. election must be presented through an election petition.
• An election petition must consists of concise statement of • Section 80A – High Court of a particular constituency
the material facts stating the claim of the petitioner, (where such disputes have arisen) shall have the
particulars of corrupt practice alleged by the petitioner jurisdiction to try such election petition. Election petition
including date and place of commission of such offence. can be submitted by any candidate or elector within 45
Such a petition must be accompanies by an affidavit as per days of declaration of results.
Form 25. • "Elector" in relation to a constituency means a person
• Section 123 of RPA, 1951 describes the following as whose name is entered in the electoral roll of that
corrupt practice: constituency for the time being in force and who is not
subject to any of the disqualifications mentioned in
ο Bribery
section 16 of the Representation of the People Act,
ο Undue influence 1950.
ο Direct or indirect interference or attempt to interfere on REFORMS SUGGESTED IN 255TH LAW COMMISSION
the part of the candidate or his agent or by any other REPORT
person with the consent of the candidate.
• More election benches shall be introduced in each High
ο Appeal by a candidate on the ground of his religion, Court which shall exercise jurisdiction over all election
race, caste, community or language. disputes under the RPA.
ο Use of, or appeal to religious symbols or the use of, or • The procedure for presenting election petitions should be
appeal to national symbols, such as the national flag made simpler and less formalistic
or the national emblem to enhance the prospects of the
150
• The trial of election petitions by the election bench of the Regained Emphasis on simultaneous polls - The President
High Court should be expedited by providing for daily trial, of India in his Special Address to both House of the
minimising adjournments, with the possibility of imposing Parliament on the occasion 17th Lok Sabha first gathering
exemplary costs, a time limit of 45 days to file a written highlighted on the importance of ‘One Nation –
statement, with a further extension of 15 days, after which Simultaneous Elections’ and mentioned that it will facilitate
such right shall be forfeited. accelerated development of the nation as all political parties
• The trial should be concluded within six months from the according to their respective ideologies will be able to better
date of presentation of the petition; otherwise, a report utilise their energy towards development and public welfare
should be sent to the Chief Justice of the High Court thereby benefitting our countrymen. Based on this, the Prime
explaining the reasons for the delay. Minister of India said that a committee will be formed to
examine threadbare the issue of ‘One Country, One Election’,
• The election bench of the High Court should pass its order
and come up with suggestions in a time-bound manner.
under section 98 within ninety days from the conclusion of
arguments. MERITS OF SIMULTANEOUS ELECTIONS
• A new provision, section 98A, should be inserted • Simultaneous elections to Lok Sabha and all State
pertaining to the collection of data such as the number of Assemblies will provide continuity, consistency and
election petitions filed and pending, the status of each stability in governance throughout the country.
petition, the names of the parties, and designated election • It will reduce the massive expenditure spent during
bench. elections.
• Appeals to the Supreme Court should only be on the basis • Help ruling parties focus on governance instead of being
of a question of law, instead of questions of fact as constantly in election mode.
grounds for appeal. This appeal should be filed within 30 • Imposition of the Model Code of Conduct hampers the
days of the High Court’s order. development programmes and activities of the Union and
• The Supreme Court should try and conclude the appeal State governments leading to policy paralysis and
within three months from the date of appeal. governance deficit.
• Simultaneous elections would free
crucial manpower which is often deployed for prolonged
►SIMULTANEOUS ELECTIONS IN periods on election duties.
INDIA – ONE NATION, ONE POLL • It would provide a stable five year term to the political
Backdrop - India' first general elections were held in 1951-52. parties in power to focus towards implementing their
There was a simultaneous General Election to Lok Sabha and political manifestos and government schemes.
all State Legislative Assemblies. This trend continued up to • Help in controlling corruption to a large extent as use of
for 3 subsequent general elections until 1967. But in 1968, unaccounted money through illegal sources very common
the cycle the cycle of simultaneous elections got disturbed during elections.
due to the premature dissolution of some Legislative
DEMERITS OF SIMULTANEOUS ELECTIONS
Assemblies. During those times, Congress governed both at
the Centre and in majority of the states and it became easy to • Practical Feasibility: Holding Simultaneous Elections
conduct such simultaneous elections till Congress enjoyed would mean reducing or extending the term of existing
stupendous majority. However, with time, clout of Congress State legislatures to bring their election dates in line with
as a political party reduced giving rise to political instability the due date for the rest of the country. Such a measure
both at the centre and in the states. Thus, slowly this process would undermine democracy and federalism.
of simultaneous elections came to a pause due to the • Hamper the choice of Voters: The voters are better
constitutional need of having a majority in the state placed to express their voting choices keeping in mind the
assemblies. Further, premature dissolution of Lok Sabha in two different governments which they would be electing
1970 further disrupted the process of simultaneous elections by exercising their franchise. This distinction gets blurred
in India. somewhat in case of simultaneous elections since the
voters are made to vote for electing two types of
151
government at the same time, at the same polling booth, • In this respect, the proposal to introduce simultaneous
and on the same day. elections in India both to Lok Sabha and State Assemblies
• Go Against Local or Regional Interests: Assembly is a bold reform and must be carried forward with the
elections are fought on local state issues and, in the true consensus of all state assemblies.
spirit of federalism, parties and leaders are judged in the • Simultaneous elections if at all possible should be
context of their work done in the state. Clubbing them with complied within the constitutional constraints and without
the general election could lead to a situation where the disturbing the federal structure of India as it is also a Basic
national narrative submerges the regional problems and Structure of the Indian Constitution.
issues. • However, if any state is unwilling to come to the terms of
• Go Against Smaller Political Parties: In case of simultaneous elections then, the Central Government shall
simultaneous polls, bigger political parties who are better patiently listen to their concerns. If the concerns are
funded have advantage over smaller regional parties. genuine, then effective steps and alternatives must be
• Corporates in favour of larger parties - Even the suggested so as to bring all stakeholders at one common
corporates would favour a uniform government platform.
throughout India for their benefit hence could pour their
entire fund in one or two strong national political parties.
This may act as a huge disadvantage for the smaller
►SERVICE VOTERS
political parties thereby distorting the very idea of In cases of close contests, service voters play crucial and
federalism in India. decisive role. Service voter are those who have service
RECOMMENDATIONS OF VARIOUS REPORTS qualification.
• Law Commission of India in its 177th Report has WHO IS A SERVICE VOTER?
suggested that election of same of Legislation Assemblies 1. People serving in the Armed Forces of the Union
where term is ending six months after the General election 2. Those serving in a Force to which Army Act 1950 applies
to Lok Sabha can be clubbed with it but election result can - members of Indian Army, Navy and Air Force and
be declared at the end of their tenure. This can be possible personnel of General Reserve Engineer Force (Border
with the cooperation of political parties. Road Organization), Border Security Force, Indo Tibetan
• The Standing Committee on Personnel, Public Border Police, Assam Rifles, National Security Guards,
Grievances, Law and Justice noted that the Central Reserve Police Force, Central Industrial Security
Representation of People Act, 1951 permits the Election Force and Sashastra Seema Bal are eligible to be
Commission to notify general elections six months prior to registered as service voters.
the end of the terms of Lok Sabha and state assemblies. 3. Those employed under the Government of India, in a
The Committee recommended that elections could be held post outside India.
in two phases. It stated that elections to some Legislative
4. Member of an Armed Police Force of a State, serving
Assemblies could be held during the midterm of Lok
outside that state.
Sabha. Elections to the remaining legislative assemblies
could be held with the end of term of Lok Sabha. ABOUT SERVICE VOTERS
• The NITI Aayog in its Three Year’s Action Agenda has • Wife of a Service Voter, if she is ordinarily residing with
suggested that we need to move towards switching to a him, shall also be eligible to be enrolled in the part meant
synchronised two-phase election to the Lok Sabha. This for Service Voters in the constituency concerned.
would require a maximum one-time curtailment or • While wife can be enrolled in the part for Service Voter,
extension of some state assemblies. husband/ son/ daughter cannot be enrolled as service
WAY FORWARD voter.
• Any proposal to strengthen the roots of democracy is • Service Voters also have a choice to get themselves
always a welcome step and all stakeholders must be registered as a General Voter. But in doing so, they need to
willing and accommodative to explore options for the delete their name from the list of service voters.
same.
152
CLASSIFIED SERVICE VOTER • The Returning Officer of a parliamentary or assembly

• The Service Voter can either vote through: 1. Postal Ballot constituency is responsible for the conduct of elections in
or 2. Through a proxy. It means that they are entitled to the parliamentary or assembly constituency concerned as
appoint any person as their proxy to cast vote on their per section 21 of the Representation of the People Act
behalf and in their name at the polling station. 1951.
• A service voter who opts for voting through a proxy is • Under section 26 of the Representation of the People Act
called Classified Service Voter (CSV). 1951, the District Election Officer appoints the Presiding
Officers and the Polling Officers. In the case of Union
ABOUT PROXY
Territories, such appointments are made by the Returning
• The proxy selected must be an ordinary resident of the Officers.
same constituency as that of the service voter.
RESPONSIBILITIES OF A RETURNING OFFICER
• The proxy need not be a registered voter but must not be
• Overseeing the election in his/her constituency.
disqualified to be a registered voter. The proxy appointed
by the service voter must fill Form 13F and must send the • Accepting and scrutinizing nomination forms
form to the Returning Officer after getting it signed by • Rejecting nomination form of candidate after raising
Notary or First Class Magistrate. important concern or lacunae in filling up of such forms.
• Once appointed, the proxy will continue until his/ her • Publishing the affidavits of the candidate
appointment is revoked. • Allotting approved election symbols to contesting
candidates sponsored by National or State Party.
►RETURNING OFFICER • As per Paragraph 12 of The Election Symbols (Reservation

and Allotment) Order, 1968, Returning Officer shall allot a
The Returning Officer has a pivotal role in election free symbol chosen by an "Independent Candidate" for
management. He/she is so called because he/she conducts election purpose. As per the above Order, the Returning
the election in a constituency and returns elected candidate. Officer shall also allot free symbol to the candidate set up
A Returning Officer is responsible for overseeing the election by the unrecognized political party.
in one constituency or sometimes in two, as directed by the
• Monitoring election expenses and accounts of the
Election Commission of India.
candidates
• Provision for Returning Officer has been provided under
• Preparing list of contesting candidates
section 21 and 24 of the Representation of People (RP) Act,
1951. Under Section 22 of the RP Act, 1951, the Election • Preparing EVMs and VVPATS, training poll personnel,
Commission of India appoints the Assistant Returning designating counting centres
Officer for a constituency, in consultation with the State • Counting of the votes
Governments and the Union Territories.
• Declaration and Publication of results in Election
• The Election Commission of India nominates or designates
LOTTERY IN ELECTIONS
an Officer of the Government or a local authority as the
Returning Officer for each of the assembly and Lottery in Elections takes place when two candidates in a
parliamentary constituencies in consultation with the State constituency gets the same number of votes. Section 102 of
Government/Union Territory Administration. the Representation of the People Act, 1951 mentions about
the procedure to be followed in case of equality of
• Election Commission can designate same person to be the
votes.Section 102 of RPA, 1951 provides for two scenarios in
returning officer for more than one constituency.
such a case:
• In addition, the Election Commission of India also appoints
• In such a case of equality of votes, the Returning Officer
one or more Assistant Returning Officers for each of the
shall decide the manner which will ascertain who will get
assembly and parliamentary constituencies to assist the
majority of votes. In past incidents, it has been decided
Returning Officer in the performance of his functions in
through toss of a coin. During the panchayat election in
connection with the conduct of elections.
Assam, candidates in six places were declared winners
153
after tossing a coin. In all these six seats the results were a • Report received after the 1962 general election showed
tie. that the Code was followed by and large. This made the
• Section 102 says that if the issue is not decided by the Election Commission follow the code from 1967 in the Lok
decision taken by Returning Officer, then the High Court Sabha and Assembly elections.
shall decide the issue by lot. The candidate who wins the • In 1968, the Election Commission held meetings with
lottery wins the election. political parties at State level and circulated the Code of
Conduct to observe minimum standard of behavior to
ensure free and fair elections.
►MODEL CODE OF CONDUCT • In 1979, Election Commission, in consultation with the
Free and fair elections form the bed rock of democracy. This political parties further amplified the code, adding a new
envisages a level playing field for the contestants and an Section placing restrictions on the “Party in power” so as to
equal opportunity for all parties for presenting their policies prevent cases of abuse of position of power to get undue
and programmes to voters. In this context the Model Code advantage over other parties and candidates.
of Conduct (MCC) gains relevance as it intends to provide a • In 1991, the code was consolidated and re-issued in its
level playing field for all political parties, keep the campaign present form. The present code contains guidelines for
fair and healthy, avoid clashes and conflicts between general conduct of political parties and candidates eg:
parties, and ensure peace and order. It aims to ensure that
ο no attack on private life,
the ruling party, either at the Centre or in the States, does not
misuse its official position to gain an unfair advantage in an ο no appeal to communal feelings,
election. This instrument is a major contribution of Indian ο discipline and decorum in meetings, processions,
electoral system to the cause of democracy.
ο guidelines for party in power – official machinery and
ABOUT MCC facilities not to be used for electioneering,
The Model Code of Conduct (MCC) for guidance of political ο prohibition against Ministers and other authorities in
parties and candidates is a set of norms which has been announcing grants, new schemes etc.
evolved with the consensus of political parties who have
IS MCC LEGALLY ENFORCEABLE?
consented to abide by the principles embodied in the said
code and also binds them to respect and observe it in its Model Code of Conduct does not have a statutory backing
letter and spirit. The salient features of the Model Code of and hence cannot be enforced legally. It is a mere set of
Conduct lay down how political parties, contesting candidates guidelines which is agreed by all parties as a model to be
and party(s) in power should conduct themselves during the obeyed during the conduct of elections. However, certain
process of elections i.e. on their general conduct during provisions of the MCC may be enforced through invoking
electioneering, holding meetings and processions, poll day corresponding provisions in other statutes such as the Indian
activities and functioning of the party in power etc. Penal Code, 1860, Code of Criminal Procedure, 1973, and
Representation of the People Act, 1951. The Election
EVOLUTION OF MCC
Commission of India is against making MCC a law as it will
• MCC originated and evolved with the consensus of the delay cases pertaining to elections resulting in delay in the
political parties. The origin of the MCC dates back to 1960 conduct of elections. If cases are filed with respect to ongoing
when the MCC started as a small set of Dos and Don’ts for elections, then it will delay the entire process as litigants will
the Assembly election in Kerala in 1960. resort to appeals in High Courts and Supreme Court. Recently
• The Code covered conducting of election former Election Commissioner S.Y. Quraishi also argued
meetings/processions, speeches, slogans, posters and against legalising MCC and emphasised on strengthening of
placards. In 1962 Lok Sabha General Elections, the the Election Commission through further electoral reforms.
Commission circulated this code to all the recognized ROLE OF ELECTION COMMISSION
political parties and the State Governments were
• The Election Commission ensures observance of MCC by
requested to secure the acceptance of the Code by the
political parties in power, including ruling parties at the
Parties.
Centre and in the States and contesting candidates in the
discharge of its constitutional duties for conducting the
154
free, fair and peaceful elections to the Parliament and the ►ABOUT ELECTION MANIFESTO
State Legislatures under Article 324 of the Constitution of
India. It also ensures that official machinery for the An election manifesto refers to a statement issued by a
electoral purposes is not misused. political party. It lays down the agenda of the political party
including the programmes and policies which the political
• Further, it is also ensured that electoral offences,
party intends to implement on wide ranging issues affecting
malpractices and corrupt practices such as impersonation,
citizen’s daily life. The election manifesto cannot contain
bribing and inducement of voters, threat and intimidation
anything which goes against the very principles enshrined in
to the voters are prevented by all means.
the Indian Constitution and must also be consistent with the
APPLICABILITY OF MCC Model Code of Conduct. The Supreme Court in its judgment
• In the case ofUnion of India v Harbans Sigh Jalal and dated 5th July 2013 in the case of S. Subramaniam Balaji Vs
Others, Supreme Court ruled that Code of Conduct would Govt. of Tamil Nadu and Others has directed the Election
come into force the moment the Election Commission Commission to frame guidelines with regard to the contents
issues the press release, which precedes the notification of election manifestos in consultation with all the recognized
by a good two weeks. political parties. On the directions of Supreme Court and after
consultation with the Political Parties, the Commission, in the
• This ruling ended the controversy related to the dates of
interest of free and fair elections has issued the following
enforcement of MCC. Thus, the MCC remains in force from
guidelines:
the date of announcement of elections till the completion
of elections. • The election manifesto shall not contain anything
repugnant to the ideals and principles enshrined in the
• Lok Sabha - During general elections to House of People,
Constitution and further that it shall be consistent with the
the code is applicable throughout the country.
letter and spirit of other provisions of Model Code of
• Vidhan Sabha - During general elections to the Legislative Conduct.
Assembly (Vidhan Sabha), the code is applicable in the
• The Directive Principles of State Policy enshrined in the
entire State.
Constitution enjoin upon the State to frame various
• During by-elections, the code is applicable in the entire welfare measures for the citizens and therefore there can
district or districts in which the constituency falls. be no objection to the promise of such welfare measures
in election manifestos. However, political parties should
avoid making those promises which are likely to vitiate the
Part of MCC Subject for guidance of political purity of the election process or exert undue influence on
candidates & candidates the voters in exercising their franchise.
Part 1 General Conduct • In the interest of transparency, level playing field and
credibility of promises, it is expected that manifestos also
Part 2 Meetings reflect the rationale for the promises and broadly indicate
Part 3 Procession the ways and means to meet the financial requirements
for it. Trust of voters should be sought only on those
Part 4 Polling Day promises which are possible to be fulfilled.
Part 5 Polling Booth NEW GUIDELINES ON ELECTION MANIFESTO

• The Election Commission (EC) amended the Model Code of
Part 6 Observers
Conduct (MCC) and has prohibited political parties from
Part 7 Party in Power releasing their manifestos in the last 48 hours leading up
to voting in each phase of the coming Lok Sabha elections.
Part 8 Guidelines on Election Manifestos
• The above change has been made in Part 8 of the MCC,
which deals with poll manifestos. The EC’s decision stems
from the recommendation Umesh Sinha Committee set
up to revisit the MCC in the wake of rapid use of social
media.
155
• The Committee constituted under the chairmanship of Sr. was amended by “The Representation of the People
Deputy Election Commissioner Sh. Umesh Sinha to (Amendment) Act, 2010 to insert a new Section 20A to
review and suggest modifications and changes in the make special provisions for citizens of India residing
provisions of the Section 126 and other sections of the outside India to get enrolled as an elector in the electoral
Representation of the People Act 1951, provisions of roll.
Model Code of Conduct and any other ECI instruction in • The provisions of the Registration of Electors Rules, 1960
this regard. were also amended accordingly and a new Form 6A was
• Section 126 of the Representation of the People (RP) inserted for making application for such enrolment by
Act, 1951 which prohibits any form of poll campaign in the NRIs. This is described in the rules as “Overseas Electors”.
last 48 hours leading up to voting), and other related SECTION 20A OF RPA, 1950
provisions in the wake of rapid media expansion.
• The Representation of the People (Amendment) Bill,
2017 seeks to change Section 20A of RPA 1950 which
►PROXY VOTING FOR CITIZENS deals with special provision for citizens of India residing
outside India and provides for registration and enrolment
RESIDING OUTSIDE INDIA of overseas electors in the electoral rolls.
The government had introduced the Representation of the • To understand the amendment sought to be proposed, let
People (Amendment) Bill, 2017 winter session of the us first understand the provisions of Section 20A of RPA,
Parliament. The Bill sought to amend The Representation of 1950.
People Act, 1950 (RPA, 1951) and The Representation of
• Section 20A provides for special provisions for citizens of
People Act, 1951 (RPA, 1951) to allow for proxy voting for
India residing outside India. It says that every citizen of
overseas Indians and also to make certain provision of the
India:
Act gender neutral. This amendment will effectively provide
such citizens living abroad to vote through proxy in their o Whose name is not included in the electoral roll
constituency even when they are not physically present. o Who has not acquired the citizenship of any other
However, with the end of term of 16th Lok Sabha, this Bill on country
proxy voting for NRIs lapsed. The government as of now is
o Who is absenting from his place of ordinary resident
again contemplating to re-introduce the bill in the ongoing
due to either - employment, education or otherwise
session of the Parliament. In this backdrop, let us understand
outside India
the key features of the 2017 Bill.
• Shall be entitled to have his/her name registered in the
REASON FOR INTRODUCTION OF THE BILL IN 2017
electoral roll in the constituency in which his/her place of
• Large number of citizens lives abroad across the globe residence in India has been mentioned in the passport.
either temporarily or permanently for various purpose or Such persons shall be allowed to vote at an election.
reasons including education, employment, business or
• The Representation of the People (Amendment) Bill, 2017
other related reasons.
propose to remove this restriction of compulsory physical
• These citizens were earlier not allowed to participate in presence and allow them “Proxy Vote”.
India’s electoral process due to the then prevailing law
• To achieve this concept of proxy vote, the Amendment Bill,
which allowed only a citizen ordinarily resident within the
2017 seeks to amend section 60 of RPA, 1951 and add
territorial limits of a constituency in the country to be
clause (ba) to section 60.
eligible to be registered as voter in that constituency.
• Section 60 (ba) allows any of the persons as is referred to
• Consequently, a huge population of citizens of India living
in section 20A of RPA, 1950 to give their vote either in
abroad also known as non-resident Indian (NRIs) were not
person or by proxy and not in other manner at any
able to enrol themselves as voters in their home
election in a constituency where poll is taken.
constituencies and were not able to exercise their right to
vote. • The amendment further seeks to amend section 20 of
RPA, 1950 which defines the meaning of “Ordinarily
• Following demands from various sections of NRIs, the
Resident”.
provisions of the Representation of the People Act, 1950,
156
• In section 20 (6) of the RPA 1950, the words “The wife”

shall be substituted with “The spouse”. This change will
make the provision gender neutral and will be in
conformity to the best global practice.
WHY WAS THE AMENDMENT PROPOSED?
• The Registration of Electors Rules, 1960 provide that
the Overseas Electors can register themselves in the
electoral rolls of their respective constituencies on the
basis of self-attested copies of the passport and valid visa,
and exercise their franchise in person on production of
original passport at the time of voting at the specified
polling booths.
• Thus, the said rules stipulated the physical presenceof
the overseas electors in the respective polling station in
India on the day of polling. This caused hardship to the
overseas electors in exercising their franchise by being
present in India on the day of polling.
• In view of the above difficulty faced by the overseas
electors, the Government has considered the feasibility of
facilitating external mode of voting through proxy vote.
• In proxy voting, such electors can exercise their franchise
from their place of residence abroad by appointing a
proxy (another person) to cast the vote in an election on
their behalf. However, such proxy must also be a
registered in the same constituency as that of the
overseas citizen. This will considerably mitigate the
difficulties presently faced by overseas electors in
exercising their franchise.
157
SECTION-7
C ONSTITUTIONAL,
S TATUTORY AND
Q UASI-JUDICIAL B
ODIES
CONSTITUTIONAL, STATUTORY AND QUASI-JUDICIAL BODIES
►QUASI-JUDICIAL BODIES example: The Income Tax Appellate Tribunal falls under
the Ministry Of Law and not the Ministry Of Finance.
• A Quasi Judicial Body has also been defined as “an organ of
• Departmental bodies exercising inherent judicial powers
Government other than a Court or Legislature, which
of the State, wherein they perform functions pertaining to
affects the rights of private parties either through
control, composition and procedure, constituted under
adjudication or rulemaking”.
Article 136, can also be classified as tribunals.
• A Quasi Judicial Body is an entity such as an arbitrator or a
• Tribunals constituted under Article 323A and 323B of the
tribunal, generally of a Public Administrative Agency, which
Indian Constitution, enjoy the powers and status of a High
has powers and procedures resembling that of a Court of
Court.
Law or Judge, and which is obliged to objectively determine
facts and draw conclusions from them so as to provide the A quasi-judicial function differs from a purely judicial
basis of an official action. Such actions are able to remedy function in the following respects:
a situation or to impose legal penalties, and may affect the • A quasi-judicial authority has some of the trappings of a
legal rights, duties or privileges of specific parties. court & there is an obligation to act judicially.
• Some examples of Quasi Judicial Bodies in India are as • A dispute between two parties is an essential characteristic
follows:- of a judicial function, but this may not be true for a quasi-
ο National Human Rights Commission. judicial function.
ο State Human Rights Commission. • A court is bound by the rules of evidence and procedure
while a quasi-judicial authority is not.
ο Central Information Commission.
• While a court is bound by precedents, a quasi-judicial
ο State Information Commission.
authority is not.
ο National Consumer Disputes Redressal Commission.
• A court cannot be a judge in its own cause (except in
ο State Consumer Disputes Redressal Commission.
contempt cases), while an administrative authority vested
ο District Consumer Disputes Redressal Forum. with quasi-judicial powers may be a party to the
REASONS FOR EMERGENCE OF QUASI JUDICIAL BODIES IN controversy but can still decide it.
INDIA • In deciding cases, courts apply pre-existing law whereas
• As the State grew in size and functions, the burden on its administrative authorities exercise discretion.
functions, especially those of the judicial system increased REGULATORY BODIES
manifold. Therefore, the need for an alternative judicial
Regulatory agency is a public authority or a government
system arose.
agency which is accountable for exercising autonomous
• The cost factor also played an important role because authority over some area of human activity in a regulatory or
ordinary judicial procedures can turn out to be a costly supervisory capacity. It is established by legislative act in
affair if stretched over a long period of time. order to set standards in a specific field of activity, or
• The complexity of a plethora of laws called for more operations, in the private sector of the economy and to then
technical minds in specific fields. implement those standards. Regulatory interventions
function outside executive observation. Because the
Categories of Quasi Judicial Bodies
regulations that they adopt have the force of law, part of
There are four types of Quasi Judicial Bodies:- these agencies’ function is essentially legislative; but because
• Administrative bodies exercising quasi judicial functions, they may also conduct hearings and pass judgments
whether as part and parcel of their respective concerning adherence to their regulations, they also exercise
departments or otherwise. a judicial function often performed before a quasi-judicial
• Administrative adjudicatory bodies which are outside official called an administrative law judge, who is not part of
the control of the department involved in the disputes and the court system. Some independent regulatory agencies
hence decide disputes like a Judge, free from bias. For perform investigations or audits, and some are authorised to
fine the important parties and order certain measures.
159
STATUTORY BODIES the Chief Justice of India (or his nominee) and an eminent
jurist. The selection panel has to choose from a short-list
Statutory bodies are established by acts which Parliament
consisting of names for the posts of Lokpal chairperson, and
and State Legislatures can pass. These bodies are entities
judicial and non-judicial members.
shaped by an Act of Parliament or state legislatures and set
up by the government to consider the data and make TERM OF OFFICE:
judgments in some arena of activity. • The term of office for Lokpal Chairman and Members is 5
years or till attaining age of 70 years.
• The salary, allowances and other conditions of service of
►LOKPAL chairperson are equivalent to Chief Justice of India and
Retired Supreme Court judge Pinaki Chandra Ghose was members is equivalent to Judge of Supreme Court. If the
appointed as the first Lokpal of India by a committee person is already getting the pension (for being a former
consisting of Prime Minister Narendra Modi and Chief Justice judge), the equivalent pension amount will be deducted
of India Ranjan Gogoi and Lok sabha speaker Sumitra from the salary.
Mahajan and Eminent Jurist Mukul Rohatgi on 17 March 2019. • The salary of Lokpal and Members is charged against the
Hereby discussing the functions of Lokpal. Consolidated Fund of India.
LOKPAL AND LOKAYUKTA ACT OF 2013 • In case of death or resignation of chairperson in office,
• The Act provides for the establishment of a body of Lokpal the President can authorise the senior-most Member to
for the Union and Lokayukta for States to inquire into act as the Chairperson until new chairperson is
allegations of corruption against certain public appointed. If chairperson is not available for certain
functionaries. functions due to leave, his job will be done by senior most
member.
• It applies to all public servants in and outside India.
POWERS
ESTABLISHMENT OF LOKPAL
• The Lokpal will have the power of superintendence and
• Lokpal shall consist of a Chairperson, who is or has been
direction over any investigation agency including CBI for
a Chief Justice of India or is or has been a Judge of the
cases referred to them by the ombudsman.
Supreme Court or an eminent person,
• As per the Act, the Lokpal can summon or question any
• Such number of Members, not exceeding eight out of
public servant if there exists a prima facie case against the
whom fifty per cent shall be Judicial Members.
person, even before an investigation agency (such as
• The Chairperson or a Member shall not be— vigilance or CBI) has begun the probe. Any officer of the
o a member of Parliament or a member of the Legislature CBI investigating a case referred to it by the Lokpal, shall
of any State or Union territory; not be transferred without the approval of the Lokpal.
o a person convicted of any offence involving moral • An investigation must be completed within six months.
turpitude; However, the Lokpal or Lokayukta may allow extensions of
six months at a time provided the reasons for the need of
o a person of less than forty-five years of age, on the date
such extensions are given in writing.
of assuming office as the Chairperson or Member;
• Special courts will be instituted to conduct trials on cases
o a member of any Panchayat or Municipality;
referred by Lokpal.
o a person who has been removed or dismissed from the
AMBIT OF THE LOKPAL
service of the Union or a State;
• For a wide range of public servants from the PM, ministers
APPOINTMENT OF CHAIRPERSON
and MPs, to groups A, B, C and D employees of the central
The appointment system is a two-stage process and is quite government various rules are in place.
lengthy. A search committee has to be formed. It
• If a complaint is filed against the PM, the Act says, “Lokpal
recommends a panel of names to the high-power selection
shall inquire or cause an inquiry to be conducted into any
committee, which comprises the Prime Minister, the
Speaker of the Lok Sabha, the Leader of the Opposition,
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matter involved in, or arising from, or connected with, any nature. It relies on the CBI for investigation and only
allegation of corruption made in a complaint”. oversees the bureaucracy; Ministers and Members of
• However, certain conditions will apply. The Act does not Parliament are out of its purview. Thus, presently there is
allow a Lokpal inquiry if the allegation against the PM no authority (other than Parliament itself) with the
relates to international relations, external and internal mandate to oversee actions of political functionaries. At
security, public order, atomic energy and space. the state level, similar vigilance and anti-corruption
organisations exist, although the nature of these
• Also, complaints against the PM are not to be probed
organisations varies across states.
unless the full Lokpal bench considers the initiation of an
inquiry and at least two-thirds of the members approve it. THE OVERLAP BETWEEN CBI AND LOKPAL
• Such an inquiry against the Prime Minister (if conducted) is • The Lokpal has jurisdiction over Group A and B public
to be held in camera and if the Lokpal comes to the servants.
conclusion that the complaint deserves to be dismissed, • This does not deprive the CBI of its own jurisdiction over
the records of the inquiry are not to be published or made these two groups.
available to anyone.
• The Lokpal Act permits using the CBI (referred to by the
LOKPAL ITSELF IS ALSO SUBJECTED TO THE LAW: Act as the Delhi Special Police Establishment, from which
• The Act also includes the Lokpal’s own members under the the CBI was born) for examining a complaint against a
definition of “public servant”. public servant for misconduct.
• The Chairperson, Members, officers and other employees • Although the Lokpal has its own Inquiry Wing, it can
of the Lokpal shall be deemed, when acting or purporting nevertheless forward a complaint to the CBI for a
to act in pursuance of any of the provisions of this Act to preliminary inquiry, and thereafter for registering a regular
be public servants. case under the Prevention of Corruption Act, 1988.
• It shall apply to public servants in and outside India. • It is not clear what happens when such a complaint is
• It clarifies that a complaint under this Act shall only relate already being inquired into by the CBI.
to a period during which the public servant was holding or • Legally speaking, the government, in addition to the
serving in that capacity. Lokpal, is competent to order a preliminary inquiry and
EXISTING INSTITUTIONAL FRAMEWORK permit the CBI to proceed with a regular case.
• It is also to be remembered is that the CBI can register a
• The Central Vigilance Commission (CVC) and the
case even without the government’s nod in instances in
Central Bureau of Investigation (CBI) are the two
which a public servant is caught red-handed while
cornerstones of the existing institutional framework.
receiving a bribe.
However, the efficacy of the current system has been
questioned.
• Though the CVC (set up in 1964) is an independent agency
directly responsible to the Parliament, its role is advisory in
SPICE APPROACH
Social dimension
Political/Legal The office of Lokpal is result of long political process and the most recent trigger was a mass
movement led by Mr Anna Hazare. Politicians have understood that people want the office of Lokpal
Dimension
and can be considered as an institute which is set-up due to strong democratic values in India.
Institutional The institution of Lokpal will be the paramount institute in India to combat corruption in Public
dimension Servants. There was a debate whether the Prime Minister and Ministers will fall under the purview of
Lokpal or not. Now all Public Servants in or out of country come under the jurisdiction of Lokpal.
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Cultural dimension The greatest challenge that Lokpal as an institute has to combat is the acceptance of corruption in
our day to day life. Years of colonial rule, lack of transparency in governance, license-raaj have made
corruption an inherent part of bureaucratic culture. Lokpal as an institute has to continuously
challenge this notion and inform people about their rights and responsibilities.
Economic dimension
►PUBLIC ACCOUNTS COMMITTEE & • PAC consists of not more than 22 members of which 15
members are elected from Lok Sabha every year from
CAG amongst its members according to the principle of
The Public Accounts Committee is charged with a critical proportional representation by means of single
function of the legislature - overseeing government finances. transferable vote. Not more than 7 members of Rajya
The PAC holds ministries accountable to the audit reports of Sabha are elected by that House in like manner.
the Comptroller and Auditor General, inquires into whether • The Chairman is appointed by the Speaker of Lok Sabha
government funds were spent for purposes for which they from amongst its members. The Speaker, for the first time,
were allocated, and into the reasons for any excess appointed a member of the Opposition as the Chairman of
expenditure by government bodies. the Committee for 1967-68. This practice has been
BACKGROUND continued since then.A Minister in the government is
not eligible to be elected as a member of PAC.
• Public Accounts Committee was first set up in 1921 in the
wake of the Montague-Chelmsford Reforms. W. FUNCTIONS OF PAC
M.Hailey was its first president, and Bhupendra Nath • To examine the report of accounts of the Union
Mitra was its first Indian president. The last president Government submitted by the Comptroller and Auditor-
before Independence was Liaquat Ali Khan. General of India (CAG), to the President. Article 151 of the
• The Committee on Public Accounts underwent a radical Indian constitution require the President to lay this report
change with the coming into force of the Constitution of before each House of the Parliament.
India on 26 January, 1950, when the Committee became a • In examining the report of the CAG, the committee has to
Parliamentary Committee functioning under the control of satisfy itself that -
the Speaker with a non-official Chairman appointed by the
(a) the expenditures made by the government, were
Speaker from among the Members of Lok Sabha elected to
authorized by the Parliament, and
the Committee. The Minister of Finance ceased to be a
Member of the Committee (b) that the expenditures under any head has not crossed
the limits of parliamentary authorization.
• Constitution mentions these committees at various places
without mentioning any specific provisions about their • Every expenditure made by the government must be
tenure composition functions etc. and all these matters sanctioned by the Parliament. Thus, the committee brings
are dealt by the rule of the House. to the notice of the Parliament instances of unauthorized
expenditures or expenditures beyond sanctioned limits.
• PAC is constituted by Parliament every year for
examination of accounts showing the appropriation of • While scrutinising the Reports of CAG on revenue receipts,
sums granted by Parliament for expenditure of PAC examines various aspects of Government’s tax
Government of India, the annual Finance Accounts of administration. The Committee, thus examines cases
Government of India, and such other Accounts laid before involving under-assessments, tax-evasion, non-levy of
Parliament as the Committee may deem fit. duties, misclassifications etc., identifies the loopholes in
the taxation laws and procedures and makes
• Other accounts include accounts of autonomous and semi-
recommendations in order to check leakage of revenue.
autonomous bodies (except those of Public Undertakings
and Government Companies which come under the • The committee not only ensures that ministries spend
purview of the Committee on Public Undertakings). money in accordance with parliamentary grants, it also
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brings to the notice of the Parliament instances of • INTOSAI was founded in 1953 and at present INTOSAI has
extravagance, loss, in fructuous expenditure and lack of 194 Full Members, 5 Associate Members and 1 Affiliate
financial integrity in public services. The committee cannot Member.
question policies of the government. It only concerns itself
CAG
with the execution of policy on its financial aspects.
CAG is entrusted with the role of upholding constitution of
• A new dimension is added to the function of the PAC, as it
India and Laws of parliament in the field of financial
is entrusted with scrutinizing the audit reports of public
administration. Article 148 of the Indian Constitution
corporations.
mandates the appointment of Comptroller and Auditor
• Finally, in examining the audits and accounts of the General of India by the President of India by warrant under
ministries and public corporations, the PAC gets the his hand and seal and shall only be removed from office in
opportunity to scrutinize the process of their working. It like manner and on the like grounds as a Judge of the
points out the weakness and shortcomings of the Supreme Court.
administration of ministries and public corporations.
• Article 151 (1) provides that - The reports of the
SUMMONING BY PAC Comptroller and Auditor General of India relating to the
• The representatives of the Ministries appear before the accounts of the Union shall be submitted to the President,
Committee while examining the Accounts and Audit who shall cause them to be laid before each House of
Reports relating to their Ministries. Parliament.
• The Committee proceeds by way of interrogation of • The Comptroller and Auditor-General shall perform such
witnesses. The CAG attends the sittings of the Committee duties and exercise such powers in relation to the
and assists it in its deliberations. accounts of the Union and of the States and of any other
• Criticisms by the PAC about any financial scheme or its authority or body as may be prescribed by or under any
drawback attract national attention. This keeps the law made by Parliament.
ministries and public corporations sensitive to the • Thus, the Parliament accordingly enacted the CAG’s
criticisms of the PAC. Thus, PAC not only checks financial (Duties, Powers and Conditions of Service) Act, 1971. It
impropriety, but also acts as an instrument of specifies the CAG’s duties and powers pertaining to
administrative control. government accounts, audit of receipts and expenditures
PAC has summoned the RBI Governor Urjit Patel along with of three tiers of the governments at the union, states and
the Deputy Governor R. Gandhi and other senior urban and rural local bodies.
functionaries of the government for oral evidence on ‘Review • As per Article 151, the reports of the Comptroller and
of Monetary Policy’ over the issue of demonetisation. Auditor General of India relating to the accounts of the
Union shall be submitted to the President, who shall
INTOSAI
cause them to be laid before each House of Parliament.
• The International Organisation of Supreme Audit The reports of the C&AG of India relating to the accounts
Institutions (INTOSAI) operates as an umbrella of a State shall be submitted to the Governor of the State,
organisation for the external government audit who shall cause them to be laid before the Legislature of
community. the State.
• It provides an institutionalised framework for supreme • Duties of C&AG includes audit of public companies,
audit institutions in their respective countries. autonomous bodies, regulatory bodies and other public
entities, where there is a specific legislative provision to
• Comptroller and Auditor General of India is Supreme
make CAG audit mandatory in the acts by which these
Audit Institution (SAI) of India.
bodies were created.
• INTOSAI is an autonomous, independent and non-political
organisation. It is a non-governmental organisation with
special consultative status with the Economic and Social
Council (ECOSOC) of the United Nations.
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REDACTION However, the lack of technical expertise hinders the PAC’s

examinations and scruitny. Office holders are sometimes
• In an audit report submitted by Comptroller & Auditor able to dodge PAC summons, which has prompted
General of India (CAG) to the President under Article 151 suggestions that it should have the power to hand out
of the Indian Constitution on pricing of Rafale jets, the CAG harsher punishments. Recently, the Institute of Public
used the concept of “redactive pricing”. Auditors of India (IPAI) sought suo motu powers of
• C&AG used redactive pricing on the recommendations of investigation for the PAC. The PAC had pitched for making the
Ministry of Defence as according to the Ministry, sensitive CAG and Auditor General (AG) accountable to Parliament.
information on the pricing could not have been revealed The report of the All India Conference of Chairpersons of
on national security concerns. PACs of Parliament and State/UT Legislatures suggested that
• Redaction is the selection or adaption by removing the PAC should be consulted on the appointment of the
sensitive information from a document before publication. CAG, and that it should have powers to examine Public-
Under redactive pricing method, CAG withheld full Private Partnership projects. The report proposed that
commercial details and blackened the figures on the services of experts should be availed on technical matters,
procurement deal on security concerns cited by among other suggestions.
Ministry of Defence. Constitutional institutions like CAG are watchdogs of the
• Whether C&AG is right in accepting ministry’s concerns executive and weakening them weakens the democratic
and thereby acting on such concerns by withholding system. The autonomy and probity of these institutions must
important information in the audit report on Rafale be protected.
submitted to the President under Article 151?Did C&AG
violated constitutional norms by accepting ministry’s
concerns? These questions remain to be answered. ►TURF WAR IN CENTRAL BUREAU OF
CAG - ISSUE OF REDACTIVE PRICING INVESTIGATION
Comptroller and Auditor General of India being the Supreme ESTABLISHMENT OF CBI & ITS JURISDICTION
Audit Institution of India (SAI) has been entrusted with the
• The Central Bureau of Investigation traces its origin to the
responsibility to audit the accounts and related activities of
Special Police Establishment (SPE) which was set up in
the government and its institutions. However, in recent
1941 by the Government of India.
Supreme Court litigations, the issue of redacted pricing of the
• The functions of the SPE then were to investigate cases of
fighter jet deal and subsequent controversy about the stolen
bribery and corruption in transactions with the War &
files and photocopies have highlighted the role of the
Supply Department of India during World War II.
Supreme Audit Institution of India in public discourse. Let us
understand about the constitutional duties of C&AG and also • The government enacted The Delhi Special Police
about the impact of redactive pricing of Rafale jets done by Establishment Act, 1946 after the war which provided for
C&AG in its report submitted to the President of India. the constitution of special force for investigation of
offences alleged to have been committed under the
AUTONOMY OF PAC AND CAG
Prevention of Corruption Act, 1988.
Holding the Executive to account for its use of public money
• CBI derives power to investigate from the Delhi Special
is one the key roles of Parliament’s Public Accounts
Police Establishment Act, 1946.
Committee (PAC), the “mother of all Parliamentary
Committees”. • After promulgation of the Act, superintendence of SPE was
transferred to the Home Department and its functions
The Chairman is appointed by the Speaker of Lok
were enlarged to cover all departments of the Government
Sabha. Since 1967, the chairman of the committee is
of India.
selected from the opposition, Earlier, it was headed by a
member of the ruling party. This ensures effective scrutiny • The jurisdiction of SPE was extended to all the Union
of government policies by PAC. territories and the Act provided for its extension to States
with the consent of the State Government.
164
• The Headquarters of SPE was shifted to Delhi and the • Director, CBI as Inspector General of Police, Delhi Special
organisation was put under the charge of Director, Police Establishment, is responsible for the administration
Intelligence Bureau. However, in 1948, a post of of the organisation.
Inspector General of Police, SPE was created and the With enactment of CVC Act, 2003 the Superintendence of
organisation was placed under his charge. Delhi Special Police Establishment vests with the Central
EVOLUTION OF CBI Government save investigations of offences under the
• In 1953, an Enforcement Wing was added to the SPE to Prevention of Corruption Act, 1988, in which, the
deal with offences under the Import and Export Control superintendence vests with the Central Vigilance
Act. With the passage of time, more and more cases were Commission.
entrusted to SPE under laws other than Prevention of VINEET NARAIN CASE (HAWALA) AND ITS IMPACT
Corruption Act and violations of Import and Export Control • Vineet Narain case is about hawala scandal where a
Act. journalist Vineet Narain implicated numbers of high-
• CBI was further strengthened by addition of an Economic ranking politicians and bureaucrats of having financial
Offences Wing by a resolution in February,1964. At this irregularities and their alleged links with militants across
time, CBI had two investigation Wings – 1.General the borders.
Offences Wing which dealt with cases of bribery and • The Supreme Court in the case observed that CBI had
corruption involving employees of Central failed in its responsibility and has become a caged parrot.
Government/PSUs and the 2.Economic Offences Wing, The Court laid down guidelines to ensure independence
which dealt with cases of violation of fiscal laws. and autonomy of the CBI and ordered CBI to be placed
• However, due to increased work load relating to Securities under the supervision of the Central Vigilance Commission
Scam cases and rise in economic offences with the (CVC), to ensure that it remains free from executive control
liberalization of Indian economy, a separate Economic or interference.
Offences Wing was established in 1994 consequent to • Thus, The CVC was made responsible for ensuring that
the approval of reorganization plan of the CBI. allegations of corruption against public officials were
RESTRUCTURING OF CBI AFTER VINEET NARAIN thoroughly investigated regardless of the identity of the
JUDGMENT accused and without interference from the Government.
• Pursuant to the direction of Hon'ble Supreme Court in • Central Vigilance Commission was constituted by the
Vineet Narain and others vs. Union of India, the Government in 1964 through an executive order on the
existing Legal Division was reconstituted as the recommendations of Committee on Prevention of
Directorate of Prosecution in July 2001. Corruption, headed by Shri K. Santhanam.
• As on date, CBI has the following Divisions: • The government then passed the Central Vigilance
1. Anti Corruption Division Commission Act, 2003 to provide statutory status to the
Central Vigilance Commission.
2. Economic Offences Division
As per the 2003 Act, the Commission exercise
3. Special Crimes Division
superintendence, give directions and review the functioning
4. Directorate of Prosecution of the Delhi Special Police Establishment in so far as it relates
5. Administration Division to the investigation of offences alleged to have been
committed under the Prevention of Corruption Act, 1988.
6. Policy & Coordination Division
7. Central Forensic Science Laboratory
RECENT TUSSLE WITHIN CBI

• This controversy erupted at CBI highlights the problems which has been plaguing the CBI with
The problem
respect to
165
i. Political interference
ii. Functional autonomy
iii. Institutional regulation (CVC & Lokpal)
• So, the core issue in the entire saga of turf war between the Director and Special Director is with
respect to
i. Free and fair functioning of all CBI officials.
ii. How to insulate tenure of 2 years of CBI director which has been mentioned in section 4B of
Delhi Special Police Establishment Act, 1946.
iii. Impact of functioning of CBI officials with respect to vested interest – both within the
organisation and outside the organisation.
• Both the officers filed a petition in the Supreme Court of India challenging the legality of the
decision of the Central government.
• Supreme Court has asked the CVC to complete its enquiry into the allegations of graft and
misconduct against the exiled CBI Director Alok Verma in two weeks.
• This allegation on CBI Director was based on a letter from Cabinet Secretary about a complaint
received in August, 2018.
• However, the Supreme Court held that the enquiry must be conducted by the CVC under the
Supreme Court’s supervision of former Supreme Court Judge, Justice A.K. Patnaik.
verdict on the • On the newly appointed Interim Director of CBI, the Court has said that he shall not take any policy
removal of CBI decision and shall take care of only routine tasks necessary for the day to day functioning of CBI.
Director rd
• The Court has also asked all decisions taken by Mr. N. Rao from the day of his appointment i.e. 23
October, 2018 including transfer of investigations which he had ordered to be placed before the
th
Supreme Court in a sealed cover for the next hearing which has been scheduled on 12 November,
2018.
• On the petition challenging CBI Director Alok Verma’s removal, the Court stated that first it needs to
investigate the charge of corruption against him. Once the issue of corruption is resolved, it will
then proceed to ascertain whether the order of the government breached any legal process with
respect to his removal.
ISSUES FACED BY CBI CBI the premier investigative arm of the Union
• The CBI has often been criticised for its alleged failure to government. Every successive government has found it
function impartially and objectively as an agency of law, useful to keep the ‘parrot in the cage’ to make it do its
but simultaneously there has always been an ever- work.
increasing demand for investigation of complicated cases • The Central Vigilance Commission, which was meant to
involving influential persons to be handed over to the CBI. provide the oversight and support to the CBI, has also
This happens despite the fact that the record of CBI in failed to give it the desired direction, or insulate it from
such cases has not been very laudable. governmental interference. The CBI also does not have a
• The charter of duties of CBI are not protected by cadre of supervisory officers of its own and relies on the
legislation. Instead, its functions are based merely on a tedious and uncertain system of induction of officers
government resolution that draws its powers from the through deputation from the state police forces and
Delhi Special Police Establishment Act, which makes the central police organisations.
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SUGGESTED REFORMS FOR CBI • Agriculture employed nearly 49 per cent while contributing
There has been a demand of structural reformsat CBI only 15 per cent of the GVA.
including its own laws and responsibilities. • The industrial sector registered a compound annual
• L.P. Singh Committee recommended enactment of a growth rate (CAGR) of around 7.7 per cent between 2012-
comprehensive central legislation to remove the 13 and 2017-18.
deficiencies of not having a central investigative agency • Close to 53 per cent of cropped area is water stressed.
having its own laws and charter of duties and functions. • According to World Bank data, in 2014, 53 per cent of
• Second Administrative Reform Commission also adults had a bank account. This increased to 80 per cent in
suggested that a new law should be enacted to govern the 2017,
working of CBI. KEY RECOMMENDATIONS
• 19th and 24th Reports of Parliamentary Standing A. DRIVERS:This section focuses on the engines of economic
Committees of 2007 and 2008 suggested strengthening performance with chapters on growth and employment,
of legal mandate, infrastructure and financial resources of doubling of farmers’ incomes; upgrading the science,
CBI to ensure independence in its functioning and technology and innovation eco-system; and promoting
autonomy from political and bureaucratic lobby. sunrise sectors like fintech and tourism.
• 24th Parliamentary Standing Committee even suggested Aim: To achieve an inclusive, sustained, clean and
CBI to take suo moto cognizance of crimes and to give CBI formalized GDP growth rate of 8% on average during
pan Indian jurisdiction including jurisdiction to investigate 2018-23 and to 9% by 2022-2023 and tax-to-GDP ratio to
corruption charges against officers of All India Services. 22%. This would raise the size of economy in real terms
• CBI’s functional autonomy is a sine qua non for quality from $2.7trillion in 2017-18 to nearly $4 trillion by 2022-
investigation and the prevention of big crime. 23.
MEASURES
• Increase the investment rate as measured by gross fixed
►NITI AAYOG “STRATEGY FOR NEW capital formation (GFCF) from the present 29% to 36% of
INDIA@75 YEARS” GDP by 2022.
NITI Aayog released ‘Strategy for New India @75’, its • In agriculture, emphasize on converting farmers to
comprehensive national Strategy for New India which defines ‘agripreneurs’ by further expanding e-NAM and replacing
clear objectives for 2022-23. It is a detailed account across 41 the Agricultural Produce Marketing Committee Act with the
areas that recognizes the progress already made, identifies Agricultural Produce and Livestock Marketing Act.
binding constraints, and suggests the way forward for • Give a strong push to ‘Zero Budget Natural Farming’
achieving the targets.41 chapters have been merged under techniques like organic farming, mixed farming etc.
four sections - Drivers, Infrastructure, Inclusion and
• Ensure maximum employment creation, complete
Governance.
codification of labour laws and to upscale and expand
Objective:Strategy document aims to further improve the apprenticeships.
policy environment in which private investors and other
• Labour Market Information System (LMIS) should be made
stakeholders can contribute their fullest towards achieving
functional for identifying skill shortages, training needs
the targets set out for New India 2022 and propels India
and employment created.
towards 5 Trillion Dollar economy by 2030.
• National Policy for Domestic Workers needs to be
BASIC ECONOMIC DATA OF INDIA
formulated at the earliest to recognise the rights of
• Investment rate as measured by gross fixed capital domestic workers and to promote better working
formation (GFCF) is 29 percent. conditions.
• Exports of goods and services combined is USD 478 billion • Enhance female labour force participation by ensuring
in 2017-18 employers’ adherence to the recently passed Maternity
Benefit (Amendment) Act, 2017, and the Sexual
167
Harassment of Women at Work Place (Prevention, • Creating an electronic national educational registry for
Prohibition and Redressal) Act. tracking each child’s learning outcomes.
• Overhauling the labour dispute resolution system to • Give a huge push to affordable housing in urban areas to
resolve disputes quickly, fairly and at low cost and improve workers’ living conditions.
strengthening labour courts/tribunals for timely dispute D. GOVERNANCE: Streamlining governance structures to
resolution. achieve better development outcomes.
• Launch a mission “Explore in India” by revamping minerals MEASURES:
exploration and licensing policy.
• Implement Second Administrative Reforms Commission
B. INFRASTRUCTURE: Deals with the physical foundations of recommendations and appoint a new commission for
growth which are crucial to enhancing the designing reforms in the changing context of emerging
competitiveness of Indian business. technologies and growing economic complexities.
MEASURES: • Set up a new autonomous body, viz., the Arbitration
• Expedite the establishment of the Rail Development Council of India, to grade arbitral institutions and accredit
Authority (RDA), which will advise or make informed arbitrators to make the arbitration process cost effective,
decisions on an integrated, transparent and dynamic speedy and to pre-empt the need for court intervention.
pricing mechanism for the railways. • Address the backlog of pending cases by shifting part of
• Double the share of freight transported by coastal workload out of regular court system.
shipping and inland waterways through focus on viability • Expand the scope of Swachh Bharat Mission to cover
gap funding. initiatives for landfills, plastic waste and municipal waste
• Develop an IT-enabled platform for integrating different and generating wealth from waste.
modes of transport and promoting multi-modal and CRITICAL ANALYSIS
digitized mobility.
• The strategy affirms that “policymaking will have to be
• With the completion of Bharat Net programme in 2019, all rooted in ground realities” rather than economic
2.5 lakh gram panchayats will be digitally connected, abstractions. The strategy emphasises the need to
following which government should aim to deliver all improve implementation of policies and service delivery on
government services at the state, district, and gram the ground, which is what matters to citizens.
panchayat level digitally by 2022-23.
• Employment and labour reforms have rightly been given
C. INCLUSION: It focuses on investing in the capabilities of the highest priority. However, it is the shape of growth that
all citizens covering three dimensions of health, education matters more than size. The employment-generating
and mainstreaming of traditionally marginalized sections capacity of the economy is what matters more to citizens
of the population. than the overall GDP growth rate. The strategy does say
MEASURES: that labour-intensive industries must be promoted, but the
• Focusing on successful implementation of Ayushman overall goal remains the size of the sector. Therefore, the
Bharat program including the establishment of 1,50,000 goal must be clearly set in terms of employment, and
health and wellness centres across the country, and rolling policies and measurements of progress set accordingly.
out the Pradhan Mantri Jan Arogya Abhiyaan (PM-JAY). Indian statistical systems must be improved quickly to
measure employment in various forms, formal as well as
• Promote integrative medicine curriculum by creating a
informal.
focal point for public health at the central level with state
counterparts. • The strategy highlights the urgency of increasing the tax
base to provide more resources for human development.
• Upgrade the quality of the school education system and
It also says financial investments must be increased to
skills; including the creation of a new innovation
strengthen India’s production base. Managing this trade-
ecosystem by establishing at least 10,000 Atal Tinkering
off will not be easy. If tax incentives must be given, they
Labs by 2020.
should favour employment creation, not more capital
investment.
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• The strategy rightly says that we need to have a 36 per performance of various Ministries on a real-time basis.
cent investment rate. But how can we achieve it if the The data are then used at the highest policymaking levels
banking sector is in a mess and one of the reasons for this to establish accountability and improve performance.
is that the same system lent heavily for infrastructure and This performance- and outcome-based real-time
to industry when the capital formation rate was 36 per monitoring and evaluation of government work can have
cent. Therefore, ideally, the movement should be a gradual a significant impact on improving the efficiency of
one. And, expecting the rate to jump from 28.5 per cent to governance.
36 per cent in the next 4 years should not be at the • Using such data, it has come up with performance-based
expense of the quality of the banking system. rankings of States across various verticals to foster a
NITI AAYOG BRINGS ABOUT A GREATER LEVEL OF spirit of competitive federalism. It identifies the best
ACCOUNTABILITY IN THE SYSTEM practices in different States in various sectors and then
try to replicate them in other States.
• NITI Aayog has established a Development Monitoring
and Evaluation Office which collects data on the
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GOVERNANCE
GOVERNANCE
►LATERAL ENTRY IN SERVICES • It has also been alleged that the quasi-monopolistic hold of
the career civil services on senior management position
At present all the civil services are cadre-based i.e. a person breeds complacency, inhibits innovative thinking and
joins a service and moves up the ladder. The natural corollary prevents the inflow of new ideas from outside
of this is that there are very few lateral entries and the civil government.
services enjoy a virtual monopoly over the all the positions in
• The present system of ‘frequent and arbitrary transfers’
the government.
hinder gaining of the relevant experience by incumbent
With rapid expansion of knowledge, increasing complexities officers.
in certain fields, rapid expansion of private sector, a large
IMPACT OF LATERAL ENTRY
amount of expertise has developed outside government.
• It will help in bringing expertise from the private sector in
Taking this into consideration, the Department of Personnel
diverse fields who is not accustomed to the practices and
and Training has published invitation of applications for
procedural labyrinth of bureaucracy.
senior positions in Government of India at the level of Joint
Secretary. • Such persons can help in infusing new thought process
and help in imbibing best practices of both worlds. This will
Even the NITI Aayog in its Three Year Action Agenda under
help in providing new approaches to governance.
civil services reform has suggested increasing specialisation
and inducting talent through lateral entry in bureaucracy. • This will encourage bureaucrats to gain expertise in
specific fields in their early stage of careers. Specialisation
In this regard NITI Aayog had even suggested to amend rules
in diverse fields will help serving bureaucrats in having
of recruitment to accommodate lateral entry.
longer tenure as officer in their respective field of
Hereby describing the concept of lateral entry and its impact expertise.
on governance.
CHALLENGES IN LATERAL ENTRY
The quality and effectiveness of a nation’s civil servants are
• Experience: The level of experience in dealing with
critical ingredients in determining its standards of
common man problem will be absent.
governance. Civil servants, particularly, at senior levels,
should possess the following key attributes - leadership, • Corruption: Chances of them getting indulged in short
vision, wide comprehension, professional competence, term benefits.
managerial focus, ability to innovate and bring about change • Nepotism: It can lead to political favouritism.
and to work in a team. Selection to leadership positions in the
• Accountability: It would be difficult to bring in private
civil services is thus vital to the whole process of governance.
players for 2-3 years and then entangling in legal matters
Hence, Government of India through a notification has for the decisions taken by them.
invited talented and motivated Indian nationals willing to
• De-motivation for the regular entrants and there might
contribute towards nation building to join the Government at
also be high attrition in bureaucracy.
the level of Joint Secretary. Persons from Private Sector
Organisations and public institutions including state CONCLUSION
government, Union Territory Administration, Public Sector • Lateral entry is demand of time due to lack of internal
Enterprises, can apply through lateral entry. human resource (civil servants) with required skills, past
WHY NEEDED? experience has shown that private individual when tasked
with job have deliver but there is a need for a robust
The flaws in Indian system are:
selection procedure. However, India’s civil services need
• The assurance of a secure career path has been held to be reform. There is little argument about this Internal reforms
the career-based system’s biggest lacuna. such as insulation from political pressure and career paths
• It has discouraged initiative by reducing competition in the linked to specialization.
higher echelons of government. It has been difficult not
only for highly qualified persons from outside government,
but also for high performers from other services to get
selected for top civil service positions.
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►INTEGRITY PACT FOR bidder for a public contract to the effect that the bidders
have not paid and shall not pay any illegal gratification to
TRANSPARENCY AND secure the contract in question.
ACCOUNTABILITY • For its part, the public agency calling for bids commits to
WHAT IS INTEGRITY PACT? ensuring a level playing field and fair play in the
procurement process. An important feature of such pacts
• The Integrity Pact (IP) is an anti-corruption tool to help
is that they often involve oversight and scrutiny by
government to fight corruption in the field of public
independent, outside observers.
contracting and procurement.
• Such pacts have contributed significantly to improved
• It consists of an agreement between a government
transparency and public confidence in the manner in
department and all bidders for a contract. The IP sets out
which major deals in Government and public sector
their rights and obligations to the effect that neither side
organizations are concluded. Many national legal systems
will pay, offer, demand or accept bribes or collude with
now give considerable weightage to such pacts.
competitors to obtain the contract, or while carrying it out.
IMPORTANT INGREDIENTS OF INTEGRITY PACT
• As per integrity pact, only those vendors/ bidders, who
commit themselves to such a Pact with the buyer, would • Promise on the part of the Government Department not to
be considered competent to participate in the bidding seek or accept any illegal benefit;
process. In other words, entering into this Pact must be • Government Department to treat all bidders with equity
preliminary criteria for all contracts and procurements and reason;
involving public offices.
• Promise on the part of bidders not to offer any illegal
STATUS OF INTEGRITY PACTS IN INDIA benefit to the Government’s employees;
• Realizing the importance of IP as a vigilance tool in • Bidders not to enter into any undisclosed agreement or
controlling corruption in public contracting and understanding with other bidders
procurement, CVC has recommended adoption of Integrity
• Foreign bidders to disclose the name and address of
Pact for all the Government departments as well as PSUs.
agents and representatives in India and Indian Bidders to
• It has provided basic guidelines for its implementation in disclose their foreign principals or associates.
respect of major procurements in the Government
RECOMMENDATIONS OF 2ND ARC
Organizations. It has also issued Standard Operating
Procedure spelling out all the details. • The Commission has recommended encouragement of the
mechanism of ‘integrity pacts’.
• However, it is to be noted that adoption of IP is voluntary
in India. Even the 2nd ARC in its report on "Ethics in • The Report has asked the Ministry of Finance to constitute
Governance" has recommended that all the government a Task Force with representatives from Ministries of Law
department and PSUs should adopt Integrity Pact in order and Personnel to identify the type of transactions
to bring in accountability and transparency in Government requiring such pacts and to provide for a protocol for
procurement. Such a mechanism would enable India to entering into such a pact.
root out corruption. • The Task Force may recommend necessary amendments
2ND ARC ON INTEGRITY PACT in the existing legal framework like the Indian Contract Act,
and the Prevention of Corruption Act which are necessary
• The Second Administrative Reform Commission in its
to make such agreements enforceable involving
fourth report on Ethics in Governance has discussed about
government agencies.
the concepts and utility of Integrity Pacts in government
contracts in the Sixth Chapter on Systemic Reforms.
• It says that integrity pacts help in promoting transparency
and creating confidence in public contracting.
• The term refers to an agreement between the public
agency involved in procuring goods and services and the
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►E-GOVERNANCE Service Delivery Gateway (SSDGs), e-District and Capacity

Building are being implemented.
E-governance refers to use of internet by the government to
• e-Kranti Electronic delivery of services envisages
provide its services at the door step of customers, business
provisioning of various e-Governance services in the
and important stakeholders.
country. The focus of the e-Kranti is to transform the e-
FOLLOWING CAN BE ATTRIBUTED AS ESSENTIAL FEATURES Governance services by expanding the portfolio of Mission
OF E-GOVERNANCE Mode Projects (MMPs) in e-Governance under various
• It greatly simplifies the process of information Government Departments, undertaking Government
accumulation for citizens and businesses. Process Reengineering (GPR), work flow automation,
• It empowers people to gather information regarding any introducing latest technologies such as Cloud and mobile
department of government and get involved in the process platform and focus on integration of services.
of decision making. HOW HAS E-GOVERNANCE INITIATIVE HELPED IN
• E-Governance strengthens the very fabric of democracy by IMPROVING QUALITY OF GOVERNANCE?
ensuring greater citizen participation at all levels of Quality of governance refers to easy access of government
governance. services at doorsteps of citizens without hassles. Major
• E-Governance leads to automation of services, ensuring initiatives of e-governance programmes pertains to different
that information regarding every work of public welfare is fields such as banking, telecommunication, transport, health,
easily available to all citizens. education, online payment of tax, disaster management etc.
• It helps in improving transparency at all levels of Government has come up various e-governance initiatives in
government and thereby helps in reducing corruption. different sectors to provide easy access of government
services for people such as -
• It makes the government department more accountable
because of easy access to information. This also ensures • UMANG – Unified Mobile App for New Age Governance -
timely delivery of essential services. provides over 100 services such as payment of utility bills,
filing income tax, booking a gas cylinder, checking
• It reduces the interface between the government and the
provident fund account etc.
citizens. Easy access to government agencies improves
ease of doing business by reducing time. • E-KRANTI – Make all government services accessible to the
public in their locality via Common Service Delivery outlets;
THE NATIONAL E-GOVERNANCE PLAN & DIGITAL INDIA
ensure efficiency, transparency and reliability in such
• The National e-Governance Plan was approved by the services at affordable costs; and realise the basic needs of
Cabinet in May 2006 with a vision to provide public common people
services to the common man in his locality at affordable
• mKisan portal - It enables farmers and all other
costs. The NeGP is a multi-stakeholder programme which
stakeholders to obtain advisories and information being
primarily focuses on making critical public services
sent by experts and government officials at different
available and promoting rural entrepreneurship.
levels.
• Digital India is an umbrella programme that covers
• BHIM App – for e-payment directly through accounts
multiple Government Ministries and Departments and is
being coordinated by MeitY. The Government of India is • m-passport seva – app for passport services
implementing the ‘Digital India’ programme with the • GST Rate finder – to find GST Rates by traders and
vision to transform India into a digitally empowered entrepreneurs by themselves
society and knowledge economy. • Digital Locker System: It serves as a platform to enable
• The National e-Governance Action Plan (NeGP) has now citizens to securely store and share their documents with
been subsumed under Digital India. Digital India focuses service providers who can directly access them
on core infrastructure components such as State Data electronically.
Centres (SDCs), State Wide Area Networks (SWANs), • e-Hospital- Online Registration Framework (ORF) is an
Common Services Centres (CSCs), State e-Governance initiative to facilitate the patients to take online OPD
appointments with government hospitals. This framework
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also covers patient care, laboratory services and medical but also all the stakeholders, i.e., citizens, customers, clients,
record management. users, beneficiaries, other Ministries/ Departments/
• National Scholarships Portal (NSP): provides a Organisations, State Governments, UT Administrations etc.
centralized platform for application and disbursement of The Citizen’s Charter is not legally enforceable and, therefore,
scholarship to students under any scholarship scheme. is non-justiciable. However, it is a tool for facilitating the
Over 1 crore applications have been submitted. delivery of services to citizens with specified standards,
• Common Services Centres 2.0 (CSC 2.0): The Government quality and time frame etc. with commitments from the
of India is implementing CSCs scheme to develop and Organisation and its clients.
provide support to the use of information technology in BENEFITS OF CITIZEN CHARTER
rural areas of the country. The CSCs are Information and • It enhances accountability by providing citizens with a clear
Communication Technology (ICT) enabled kiosks with understanding of service delivery standards, including
broadband connectivity to provide various Governments, timetables, user fees for services, and options for
private and social services at the doorstep of the citizen. grievance redress.
• National Centre of Geo-informatics (NCoG): Under this • It increases organizational effectiveness and performance
project, Geographic Information System (GIS) platform for by making a public commitment to adhere to measurable
sharing, collaboration, location based analytics and service delivery standards.
decision support system for Departments has been
• It creates a way for both internal and external actors to
developed.
objectively monitor service delivery performance.
Conclusion - All these initiatives of the government have
• It creates a more professional and client-responsive
reduced the interface between common people and the
environment for service delivery.
government authorities by improving access to delivery of
services through the use of internet. This has made citizens • It fosters improvements in staff morale.
more aware about their requirement in respective fields and • It decreases opportunities for corruption and graft by
thereby has improved transparency as well as accountability increasing transparency and educating citizens about their
on the government to deliver services on time. This has rights.
effectively facilitated both the service provider and service
• It increases government revenues by ensuring that the
recipient. This improves efficiency of the entire system and
money citizens pay for services goes into the government’s
reduces time with respect to demand and delivery of
coffers (and not into employees’ pockets).
services. Use of e-governance also improves business
prospects as highlighted in improved Ease of Business OBSTACLES IN IMPLEMENTATION OF CITIZEN CHARTER
Rankings for India. The major obstacles encountered in this initiative are:-
• The general perception of organisations which formulated
Citizens’ Charters was that the exercise was to be carried
►CITIZEN CHARTER: CRITICAL
out because there was a direction from the top. The
ANALYSIS consultation process was minimal or largely absent. It
Citizen’s Charter is a document which represents a systematic thus became one of the routine activities of the
effort to focus on the commitment of the Organisation organisation and had no focus.
towards its Citizens in respects of Standard of Services, • For any Charter to succeed, the employees responsible for
Information, Choice and Consultation, Non-discrimination its implementation should have proper training and
and Accessibility, Grievance Redress, Courtesy and Value for orientation, as commitments of the Charter cannot be
Money. This also includes expectations of the Organisation expected to be delivered by a workforce that is unaware of
from the Citizen for fulfilling the commitment of the the spirit and content of the Charter. However, in many
Organisation. cases, the concerned staff were not adequately trained
The term ‘Citizen’ in the Citizen’s Charter implies the clients or and sensitised.
customers whose interests and values are addressed by the • In majority of cases Charters were not formulated through
Citizen’s Charter and, therefore, includes not only the citizens a consultative process. By and large service providers are
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not familiar with the philosophy, goals and main features ►OFFICIAL SECRETS ACT, 1923
of the Charter.
Official Secrets Act, 1923 has been in news especially in the
• Awareness campaigns to educate clients about the Charter
context of freedom of press to publish stolen documents
were not conducted systematically.
from the Ministry of Defence which the government believes
• No funds have been specifically earmarked for awareness to be state secrets and revealing of which amounts to
generation of Citizens’ Charter or for orientation of staff on criminal offence. In this analysis, let us understand how
various components of the Charter Official Secrets Act, 1923 became a subject of arguments on
• In some cases, the standards/time norms of services Rafale Deal and also its contradiction with Right to
mentioned in Citizens’ Charter were either too lax or too Information Act, 2005.
tight and were, therefore, unrealistic and created an FREEDOM OF PRESS
unfavourable impression on the clients of the Charter.
• Freedom of Press in India is protected under Article 19
(1)(a) of the Indian Constitution under freedom of speech
SECOND ARC RECOMMENDATIONS FOR ITS IMPROVEMENT and expression. Freedom of press is also supported by
Right to Information Act, 2005 as it allows the press and
Citizen’s Charters should be made effective by adopting the
media houses to seek relevant information from
following principles:
government sources.
• One size does not fit all
• UNESCO promotes freedom of expression and freedom of
• Citizen’s Charter should be prepared for each independent the press as a basic human right. Even the International
unit under the overall umbrella of the organization’s Covenant on Civil and Political Rights (ICCPR), adopted by
charter the General Assembly of the United Nations way back in
• Wide consultation which include civil society in the process 1966, specifically includes the right to freedom of
expression, defined as “the freedom to seek, receive and
• Firm commitments to be made
impart the information and ideas of all kinds”.
• Internal process and structure should be reformed to
• However, there are certain informations which cannot be
meet the commitments given in the Charter
revealed by the government if they are classified as “secret
• Redress mechanism is case of default information” and disclosure of such may hamper national
• Periodic evaluation of Citizen’s Charters security.
• Benchmark using end-user feedback ARGUMENTS OF ATTORNEY GENERAL OF INDIA
• Hold officers accountable for results • The AG in its argument on Rafale deal tried to push the
Rafale jets’ pricing details including “solemn undertaking”
Sevottam is a Service Delivery Excellence Model which
given to France under secret information under Official
provides an assessment-improvement framework to bring
Secrets Act (OSA), 1923 which according to the government
about excellence in public service delivery.
could not be disclosed even under Right to Information
ARC SEVEN STEP MODEL FOR CITIZEN CENTRICITY Act, 2005 and revealing of which amounts to criminal
Define all services which you provide and identify your offence.
clients. • The government asked the court to refrain from examining
Set standards and norms for each service. the documents, which have already been published in the
media, primarily The Hindu, on the purchase of the Rafale
Develop capability to meet the set standards.
fighter aircraft.
Perform to achieve the standards
• The government claimed that the documents were
Monitor performance against the set standards. unauthorisedly photocopied from the originals kept in the
Evaluate the impact through an independent mechanism. Ministry of Defence and sneaked into the public domain.
Continuous improvement based on monitoring and • The government said the leak was a “conspiracy” to
evaluation results. jeopardise national security and friendly relations with
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France, the home of Rafale’s manufacturer, Dassault matters of secrecy and confidentiality in governance in the
Aviation. country.
OBSERVATION OF SC • The OSA, 1923 broadly deals with two aspects —
• The Bench reserved its orders on two preliminary issues  Penalty for Spying or espionage, which is dealt with in
(as the case is sub-judice) Section 3 of the Act.
1. The admissibility of “stolen” documents as evidence and  Disclosure of other secret information of the
2. The claim of “privileged information” raised by the government, which is dealt with in Section 5.
government. • Under Section 5, both the person communicating the
• SC pointed out three provisions of RTI Act, 2005 which secret information, and the person receiving the
clearly overrides the OSA in certain situations: information, can be punished by the prosecuting agency.
 Section 22 of the RTI Act, declares that the RTI will have • OSA targets officials and civilians who have
an “overriding effect” over OSA, 1923. documents/code/materials etc which can be classified as
“secret information.”
 Section 24 mandates even security and intelligence
organisations to disclose information on corruption and • Secret Information - The secret information can be any
human rights violations. official code, password, sketch, plan, model, article, note,
document or information. Since the classification of secret
 Section 8(2) compels the government to disclose
information is so broad, it is argued that the colonial law is
information “if public interest in disclosure outweighs
in direct conflict with the Right to Information Act.
the harm to protected interests.”
SECOND PRESS COMMISSION
Section 8(2) of RTI Act mentions - Notwithstanding anything
• When Janata Government came to power after emergency
in the Official Secrets Act, 1923 (19 of 1923) nor any of the
period, it constituted Second Press Commission chaired
exemptions permissible in accordance with sub-section (1), a
by Justice Goswami of the Supreme Court of India.
public authority may allow access to information, if public
• The Commission its report in December, 1979 suggested
interest in disclosure outweighs the harm to the protected
the government to immediately repeal the Official Secrets
interests.
Act, 1923. But the report was never published as Indira
ABOUT OFFICIAL SECRET ACT, 1923 Gandhi who came back to power in 1980 dissolved and
• The Official Secrets Act, 1923 has its roots in the British disbanded the Justice Goswami Commission.
colonial era. Its predecessor law, The Indian Official • Justice Goswami Commission was replaced by officially
Secrets Act, 1904 was enacted during the time of Lord known Second Press Commission presided over by Justice
Curzon, Viceroy of India from 1899 to 1905. K.K. Mathew.
• The Indian Official Secrets Act, 1904 was an amended • The Official Second Press Commission chaired by Justice
and more stringent version of The Indian Official Secrets K.K. Mathew did not recommend the repeal of the Official
Act (Act XIV) of 1889, which was brought in at a time Secrets Act of 1923.
when a large number of powerful newspapers had REPORT OF SECOND ARC & LAW COMMISSION
emerged in several languages across India who were
• The Second Administrative Reform Commission of June
publishing news against rising British imperialism.
2006, had recommended that the Official Secrets Act
• Fearless editors opposed British policies on a daily basis (OSA), 1923 should be repealed, and substituted by a
and this helped in building political consciousness among chapter in the National Security Act, containing provisions
the people. One of the main purposes of this Act was to relating to official secrets.
muzzle the voice of nationalist publications.
• The report of Second ARC is based on Law Commission’s
• In April 1923, a newer version of the Official Secrets Act Report of 1971 where it suggested passing an Umbrella Act
was notified. The Indian Official Secrets Act (Act No XIX to bring together all Acts/Laws relating to national security
of 1923) replaced the earlier Act, and was extended to all under one head.
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• In 1980, the National Security Act (NSA) was enacted only • It shall apply to Public Authorities which means any
to provide for preventive powers to deal with likely threats authority or body or institution of self-government
to maintenance of public order and security of the country established or constituted by or under the
etc., besides maintenance of essential services. Constitution; by any law made by the appropriate
• In such a situation, the Government decided not to repeal Government or, any other body owned, controlled or
the OSA as the other enactments relating to national substantially financed directly or indirectly by the
security such as the Unlawful Activities (Prevention) Act, appropriate Government, and includes non-government
1967, the Criminal Law Amendment Act. organisation substantially financed by the government.
RECENT CONVICTIONS UNDER OSA, 1923 • The Act envisages creation of an independent non-
judicial machinery viz, Central Information Commission,
• The most recent conviction under the Act came in 2018,
State Information Commission. Legal Framework of
when a Delhi court held former diplomat Madhuri Gupta,
exercise of powers by the Commission is defined in the
who had served at the Indian High Commission in
Act.
Islamabad, guilty under the OSA. She was sentenced to
three years in jail for passing on sensitive information to • The Act also provides the two- tier Appellate forum. First
Pakistan’s ISI. appeal is to be made to the departmental officer senior to
the Public Information Officer. The second appeal is to be
• In another high-profile case, then Kashmir Times journalist
made to State Commission.
Iftikhar Gilani was arrested in June 2002 and charged
under the OSA for allegedly possessing secret documents • Fee will be payable by the applicant depending on the
relating to the deployment of troops in the Valley. The nature of information sought. Time limit has been
state later withdrew the case. prescribed for the compliance of information depending
upon the information requirements.
• In 2017, journalist Poonam Agrawal was charged under the
law for conducting a sting operation on an Army official • Certain categories of information have been exempted
who criticised the sahayak system in the Army. from the disclosure under Section 8and 9 of the Act like
conduct of International Relations, security of the State,
trade and commercial secrets ,intelligence agency etc.
►RIGHT TO INFORMATION (RTI) ACT: • Central Information Commission and the State Information
CRITICAL ANALYSIS Commissions monitor the implementation of the Act and
prepare an Annual report to be laid before the Parliament
The Right to Information Act 2005 has been enacted to
/ State legislatures.
provide for setting out the practical regime of right to
BENEFITS OF THE RTI ACT
information for citizens to secure access to information
under the control of public authorities in order to • It has helped citizens to access information which was
promote transparency and accountability. The basic otherwise denied to them.
objective of the Right to Information Act is to empower the • It has helped speed up payments from the government,
citizens, to promote transparency and accountability in the prevent and expose corruption, get around procedural
working of the Government, to contain corruption, and to and attitudinal issues in the functioning of the officialdom
enhance people’s participation in democratic process thereby and to increase efficiency. It has given the media another
making our democracy work for the people in a real sense. tool to access information.
SALIENT FEATURES OF THE ACT • Institutional mechanisms and capacities have been
• The Act extends to the whole of India except Jammu & developed at national, state and local levels which
Kashmir. All citizens shall have the right to information, continue to aid and assist the implementing agencies and
subject to provisions of the Act. demand side institutions in the implementation of the Act.
• The RTI empowers the citizens to ask any question or seek ISSUES IN IMPLEMENTATION
any information from government authorities be it Central, • The cases of misuse of RTI Act are increasing.
State or Local governments.
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• The PIOs are not adequately trained about the different • The role of the Information Commission has to go beyond
provisions and rules of the Act regarding procedures to be the Hearing of the appeals. As per the Act, they are
followed in disseminating information. expected to issue orders/directions to the Public
• The PIOs has the same old colonial mind set and they try Authorities to carry out their duties as per the mandate of
to guard every information and working in secrecy under the Act. However till the time Information Commission
the Official Secrets Act. These bureaucrats deny assumes the role of ensuring the compliance of the RTI Act
information to the citizen to save themselves from by the various Public Authorities, there would not be any
criticism and feel uncomfortable with the notion of control mechanism. The State Government has to play a
transparency. facilitative role to the Information Commission through
issuance of supporting rules/orders to the Public
• Attacks on RTI activists have also been a major deterrent in
Authorities.
the RTI movement. There are no provisions to protect
them. SHOULD JUDICIARY BE BROUGHT UNDER RTI?
• Many ministries and departments of the Government of • As per Right to Information Act, 2005, “public
India seem to have appointed multiple public information authority” means any authority or body or institution of
officers (PIOs). This results in citizens having to run from self government established or constituted
office to office seeking out the correct PIO ñ sometimes in (a) By or under the Constitution
vain. Clearly there should be a single window approach in (b) By any other law made by Parliament
each department/ministry so that harassment to the
(c) By any other law made by State Legislature
citizen is avoided.
(d) By notification issued or order made by the
• Majority of the Information Commissions are situated in
appropriate Government,
the State capitals, which results in appellants undergoing
an additional cost in order to attend the hearings. The and includes any (i) body owned, controlled or substantially
Central Information Commission, which has jurisdiction financed or (ii) non-Government organisation substantially
over RTI appeals relating to Central Government Public financed, directly or indirectly by funds provided by the
Authorities spread across the country, is located in Delhi appropriate Government. So, the question is whether Judges
which results in wastage of considerable time/expenses of of Supreme Court and the Supreme Court comes within the
PIOs and the appellants, who come from far off areas. provision of “public authority” as defined above.
• The number of RTI Appeals with the Information • All powerful institutions including legislature, executive
Commissions is growing at a rapid pace year after year and the judiciary must be held accountable to the
which is increasing the pendency of cases. Constitution of India. The judges of the Supreme Court
interpret the law but are not law unto themselves. Even
STEPS NEEDED
Judges of High Court performs important constitutional
• The Public Authorities have to enhance the level of duties in safeguarding the rule of law in letter and spirit.
ownership to ensure the RTI delivery happens as per the
• No constitution office holder, however supreme is not
spirit of the Act. They have to be ultimately responsible for
beyond the realms of the boundaries set by the
ο Identifying the gaps in their offices in the delivery of Constitution. So, considering this constitutional parameter,
the information, thereafter identify the resources even the judiciary must be held accountable as holders of
needed and appropriately budget for it. important constitutional office in performing their
ο Maintenance of the information required to be constitutional duties and must be brought within the
furnished to the State Information Commission as per preview of Right to Information Act, 2005.
Section 25(3) • A blanket judicial exemption from the RTI Act would defeat
• The role of the Centre/State Government is to facilitate the the basic idea of “open justice”. Workings of the courts as
Public Authorities in implementation of the Act. This can powerful organs of state must have a transparent
happen through providing support to Public Authorities for mechanism and be open to public scrutiny like any other
training, development of software applications, e-Training public body.
modules, generating awareness amongst citizens etc.
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• The claim that bringing judiciary under RTI will affect • Every norms of disclosure of assets followed by any public
private lives of judges does not hold much ground as RTI authority should be adhered to even by the Judges of India
seeks to make the judicial administration and working in the right spirit. It is the best way forward to bring
more transparent. transparency in the entire working of judiciary as it will
• RTI does not interfere with the private lives of judges and help in not only upholding the integrity of the institution
their families as the RTI Act itself has an inbuilt privacy- but also strengthens public faith in one of the most
oriented protection (under section 8) which authorises important institution of Indian democracy which guards
withholding the disclosure of personal information unless fundamental and other rights of India.
there is an overriding public interest.
SPICE APPROACH
It has been seen that the families of those who have been awarded capital punishment suffer from
Social dimension social ostracization. Government should ensure that no punishment or discrimination should be
meted out to those who have not committed any crime.
Recently, many incidents about atrocities against women came to light. Indian society is shocked to
see that girls as young as 2-3 years have also suffered. This has led to a debate that those who
Political/Legal
commit heinous crimes against women (and children) should be awarded capital punishment as
Dimension
these people are a threat to the society. Recent updates in POCSO are also a result of this
awareness.
India has inherited many institutes from the British. Our mechanism to deliver justice is also a part
Institutional
of that. However, we need to understand that we need to revamp the system that was primarily
dimension
aimed at exploiting, torturing and threatening the Indians.
Cultural dimension
Economic Dimension
►POLICE REFORMS working conditions (e.g., regulated working hours and

promotion opportunities), while being held accountable for
Under the Constitution, police is a subject governed by states. poor performance or misuse of power.
Therefore, each of the 29 states have their own police forces.
However, police structure in India has been facing many
The centre is also allowed to maintain its own police forces to
issues. Hereby discussing the reforms needed in the system.
assist the states with ensuring law and order. Therefore, it
maintains seven central police forces and some other police ISSUES ASSOCIATED WITH THE POLICE ORGANISATION
organisations for specialised tasks such as intelligence AND 2ND ARC RECOMMENDATIONS
gathering, investigation, research and recordkeeping, and A) POLICE ACCOUNTABILITY:-
training.
• Police forces have the authority to exercise force to
The primary role of police forces is to uphold and enforce enforce laws and maintain law and order in a state.
laws, investigate crimes and ensure security for people in the However, this power may be misused in several ways. For
country. In a large and populous country like India, police example, in India, various kinds of complaints are made
forces need to be well-equipped, in terms of personnel, against the police including complaints of unwarranted
weaponry, forensic, communication and transport support, to arrests, unlawful searches, torture and custodial rapes.
perform their role well.
• To check against such abuse of power, various countries
Further, they need to have the operational freedom to carry have adopted safeguards, such as accountability of the
out their responsibilities professionally, and satisfactory police to the political executive, internal accountability to
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GOVERNANCE
senior police officers, and independent police oversight to fix responsibility on the police officers for lapses in
authorities. acting upon intelligence or on the intelligence officers in
case there has been a failure on their part.
SECOND ARC RECOMMENDATIONS
For example, the United Kingdom has an Independent Office
• Second Administrative Reforms Commission (2007) has
for Police Conduct, comprising of a Director General
noted that this control has been abused in the past by the
appointed by the crown, and six other members appointed
political executive to unduly influence police personnel,
by the executive and the existing members, to oversee
and have them serve personal or political interests. This
complaints made against police officers. Another example is
interferes with professional decision-making by the police
that of the New York City Police which has a Civilian
(e.g., regarding how to respond to law and order situations
Complaint Review Board comprising of civilians appointed by
or how to conduct investigations), resulting in biased
local government bodies and the police commissioner to
performance of duties.
investigate into cases of police misconduct.
• To allow the police greater operational freedom while
ensuring accountability, various experts have B) VACANCIES AND AN OVERBURDENED FORCE :-
recommended that the political executive’s power of • Police personnel discharge a range of functions related to:
superintendence over police forces be limited. (i) crime prevention and response (e.g., intelligence
• Further Second ARC stated for the establishment of collection, patrolling, investigation, production of
District Police Complaints Authority (DPCA) shall be witnesses in courts), (ii) maintenance of internal security
constituted in each district by the State government in and law and order (e.g., crowd control, riot control, anti-
consultation with the Chairperson State Human Rights terrorist or anti-extremist operations), and (iii) various
Commission, to enquire into the misconduct or abuse of miscellaneous duties (e.g., traffic management, disaster
power against police officers up to the rank of deputy rescue and removal of encroachments).
Superintendent of Police. • However, currently there are significant vacancies within
• The Authority should be empowered to investigate any the state police forces and some of the central armed
case itself or ask any other agency to investigate and police forces. As of January 2016, the total sanctioned
submit a report. The Disciplinary Authorities should strength of state police forces across India was 22,80,691,
normally accept the recommendations of the District with 24% vacancies (i.e. 5,49,025 vacancies). Vacancies
Authorities. have been around 24%-25% in state police forces since
2009.States with the highest vacancies in 2016 were Uttar
• On similar lines a State level Authority (SPCA) should be
Pradesh (50%), Karnataka (36%), West Bengal (33%),
constituted to look into complaints against officers of the
Gujarat (32%) and Haryana (31%).
rank of Superintendent of Police and above. The Authority
should have the power to ask any agency to conduct an • A high percentage of vacancies within the police forces
enquiry or enquire itself. The Authority should also be exacerbates an existing problem of overburdened police
empowered to enquire into or review any case of police personnel. Each police officer is also responsible for a
misconduct, which is before any District Police Complaints large segment of people, given India’s low police strength
Authority, if it finds it necessary in public interest to do so. per lakh population as compared to international
It should be provided that if upon enquiry it is found that standards. While the United Nations recommended
the complaint was frivolous or vexatious, then the standard is 222 police per lakh persons, India’s sanctioned
Authority should have the power to impose a reasonable strength is 181 police per lakh persons. After adjusting for
fine on the complainant. vacancies, the actual police strength in India is at 137
police per lakh persons. Therefore, an average policeman
• The State Police Complaints Authority should also monitor
ends up having an enormous workload and long working
the functioning of the District Police Complaints Authority.
hours, which negatively affects his efficiency and
The Complaint Authorities should be given the powers of a
performance.
civil court. It should be mandated that all complaints
should be disposed of within a month. SECOND ARC RECOMMENDATIONS
• In case of major breakdown of public order, the State • The Second Administrative Reforms Commission has
Police Complaints Authority should take appropriate action recommended to outsource or redistribute some non-core
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GOVERNANCE
police functions (such as traffic management, disaster soft skills (such as communication, counselling and
rescue and relief, and issuing of court summons) to leadership) given they need to deal with the public
government departments or private agencies. regularly.
• These functions do not require any special knowledge of • 2nd ARC has further noted that the promotion
policing, and therefore may be performed by other opportunities and working conditions of constables are
agencies. This will also allow the police forces to give more poor, and need to be improved. Generally a constable in
time and energy to their core policing functions. India can expect only one promotion in his lifetime, and
normally retires as a head constable, which weakens his
C) CONSTABULARY RELATED ISSUES:
incentive to perform well. This system may be contrasted
• Qualifications and training: The constabulary with that in the United Kingdom, where police officers
constitutes 86% of the state police forces. A constable’s generally start as constables and progress through each
responsibilities are wide-ranging, and are not limited to rank in order. Further, in India sometimes superiors
basic tasks. For example, a constable is expected to employ constables as orderlies to do domestic work, which
exercise his own judgement in tasks like intelligence erodes their morale and motivation, and takes them away
gathering, and surveillance work, and report to his from their core policing work. The Commission
superior officers regarding significant developments. He recommended that the orderly system be abolished across
assists with investigations, and is also the first point of states.
contact for the public. Therefore, a constable is expected
• Importance of providing housing to the constabulary (and
to have some analytical and decision-making capabilities,
generally to the police force) to improve their efficiency
and the ability to deal with people with tact, understanding
and incentive to accept remote postings has also been
and firmness.
emphasised by other expert bodies, such as the National
SECOND ARC RECOMMENDATIONS Police Commission also. This is because in remote and
• The existing system of the constabulary should be rural areas, private accommodation may not be easily
substituted with recruitment of graduates at the level of available on rent. Even in metropolitan areas, rents may
Assistant Sub- Inspector of Police (ASI).This changeover be prohibitively high, and adequate accommodation may
could be achieved over a period of time by stopping not be available in the immediate vicinity of the police
recruitment of constables and instead inducting an stations affecting their operational efficiency.
appropriate number of ASIs. D) CRIME INVESTIGATION:
• Recruitment of constables would, however, continue in the • A core function of the state police forces and some central
Armed Police. The orderly system should be abolished police agencies like CBI is crime investigation. Once a
with immediate effect. The procedure for recruitment of crime occurs, police officers are required to record the
police functionaries should be totally transparent and complaint, secure the evidence, identify the culprit, frame
objective. Further, the Police-public ratio should be the charges against him, and assist with his prosecution in
improved as it is touching dismally low levels especially in court so that a conviction may be secured. In India, crime
some states like Bihar. rate has increased by 28% over the last decade, and the
• Affirmative action should be taken to motivate persons nature of crimes is also becoming more complex (e.g., with
from different sections of society to join the police service. emergence of various kinds of cybercrimes and economic
• Recruitment campaigns should be organized to facilitate fraud).
this process. All this is expected to not only empower the • Conviction rates (convictions secured per 100 cases)
cutting edge functionaries and also vest better skills in the however have been fairly low.In 2015, the conviction rate
police functionaries of that level along with improving for crimes recorded under the Indian Penal Code, 1860
upon the diversity within the police force which is again an was 47%. Law Commission has observed that one of the
important determinant of improving Police-Public reasons behind this is the poor quality of investigations.
relationship.
• It has also been recommended that constables, and the
• Crime investigation requires skills and training, time and
police force in general, should receive greater training in
resources, and adequate forensic capabilities and
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GOVERNANCE
infrastructure. However, the Law Commission and the merit and professional experience. Posting of police
Second Administrative Reforms Commission have noted officers on considerations other than merit is a major
that state police officers often neglect this responsibility reason which hampers efficient functioning of the police.
because they are understaffed and overburdened with
various kinds of tasks.
STATE POLICE PERFORMANCE AND ACCOUNTABILITY
• Further, they lack the training and the expertise required
COMMISSION
to conduct professional investigations. They also have
insufficient legal knowledge (on aspects like admissibility A State Police Performance and Accountability Commission
of evidence) and the forensic and cyber infrastructure should be constituted, with the following as Members:
available to them is both inadequate and outdated. • Home Minister (Chairman)
• In light of this, police forces may use force and torture to • Leader of Opposition in the State Assembly
secure evidence. Further, while crime investigations need • Chief Secretary
to be fair and unbiased, in India they may be influenced by
• Secretary in charge of the Home Department;
political or other extraneous considerations. In light of
these aspects, experts have recommended that states • Director General of Police as its Member Secretary
must have their own specialized investigation units within • (For matters pertaining to Director General of Police,
the police force that are responsible for crime including his appointment, the Home Secretary shall be
investigation. These units should not ordinarily be diverted the Member Secretary)
for other duties.
• Five non-partisan eminent citizens
• With regard to forensic infrastructure in the country, it
• The State Police Performance and Accountability
may be noted that currently India has seven Central
Commission should perform the following functions:
Forensic Science Laboratories, 30 State Laboratories, 50
Regional Laboratories and 144 District Mobile • frame broad policy guidelines for promoting efficient,
Laboratories. These laboratories conduct scientific analysis effective, responsive and accountable policing, in
of ballistics, bodily fluids, computer records, documents, accordance with law;
explosives, fingerprints, narcotics and voice identification, • prepare panels for the office of Director General of Police
among other things. Expert bodies have however said that against prescribed criteria;
these laboratories are short of funds and qualified staff.
• identify performance indicators to evaluate the functioning
Further, there is indiscriminate referencing of cases to
of the police service; and
these labs resulting in high pendency.
• review and evaluate organizational performance of the
• Local police (under local authorities), in addition to
police service.
investigation of petty crimes, would attend to other local
police functions including traffic management and minor State Police Establishment Committee
local law and order maintenance. More police functions • A State Police Establishment Committee should be
would be progressively brought under the supervision of constituted. It should be headed by the Chief Secretary.
local governments to improve the crime investigation The Director General of Police should be the Member
system. Secretary and the State Home Secretary and a nominee of
the State Police and Accountability Commission should be
the Members. This Committee should deal with cases
E) TRANSPARENT SELECTION OF POLICE relating to officers of the rank of Inspector General of
• The Subjective appointments, transfers and promotions Police and above.
within the police force that lead to influence peddling and • A separate State Police Establishment Committee should
patronage on the one hand and uncertainty fear and de- be set up with the Chief of Law and Order Police as its
motivation on the other. Hence the system should be Chairperson and two senior police officers and a member
transparent. of the State Police Performance and Accountability
• A closely related aspect of efficient functioning and Commission as Members (All Members of this Committee
autonomy of the police is the posting of officers based on should be nominated by the State Police Performance and
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GOVERNANCE
Accountability Commission) to deal with cases relating to of Police’, West Bengal through the ‘Community Policing
all gazetted officers up to the rank of Deputy Inspector Project’, Andhra Pradesh through ‘Maithri and
General of Police. Maharashtra through ‘Mohalla Committees’.
• These Committees should deal with all matters of postings MODEL POLICE ACT, 2006
and transfers, promotions and also grievances relating to
Key features:-
establishment matters. The recommendations of these
Committees shall normally be binding on the Competent • Organisation and recruitment: Each state will have one
Authority. However, the Competent Authority may return police service, which shall be headed by the DGP. Direct
the recommendations for reconsideration after recording recruitments to subordinate ranks (i.e. below Deputy SP)
the reasons. will be made through a state level Police Recruitment
Board. Recruitment to officers’ ranks will be through the
• Similarly, a District Police Establishment Committee (City
Union Public Service Commission or State Public Service
Police Committee) should be constituted under the
Commission.
Superintendent/Commissioner of Police. This Committee
should have full powers in all establishment matters of • Responsibilities: The responsibilities of the police serve
non-gazetted police officers. e. For inter-district transfers will include: (i) enforcing the law impartially, and protecting
of non-gazetted officers, the State level Establishment life, liberty and human rights, (ii) preserving public order,
Committee may deal with it or delegate it to a Zonal or a and preventing terrorist, militant and other activities
Range level Committee. affecting internal security, (iii) protecting public properties,
(iv) preventing and investigating crimes, (v) providing help
F) POLICE-PUBLIC RELATIONS:- in natural or man-made disasters, (vi) collecting
• Police requires the confidence, cooperation and support of intelligence, etc. In police stations in urban areas and
the community to prevent crime and disorder. For crime prone rural areas, investigation of heinous and
example, police personnel rely on members of the economic crimes (e.g., murder, serious cases of cheating)
community to be informers and witnesses in any crime will be carried out by a Special Crime Investigation Unit,
investigation. Therefore, police-public relations are an headed by an officer at least of the rank of a Sub-
important concern in effective policing. Inspector. Officers of these units will generally not be
diverted for any other duty.
• Accountability: State government will exercise
• The Second Administrative Reforms Commission has
superintendence over the police service. This will include
noted that police-public relations is in an unsatisfactory
laying down policies and guidelines, setting standards for
state because people view the police as corrupt, inefficient,
quality policing, and ensuring that the police perform their
politically partisan and unresponsive.
duties in a professional manner. State Police Boards will
• One of the ways of addressing this challenge is through be constituted in each state to frame guidelines, select
the community policing model. Community policing officers who are qualified to be promoted to rank of DGP,
requires the police to work with the community for and evaluate police performance. Police Accountability
prevention and detection of crime, maintenance of public Commissions will also be set up by states to address
order, and resolving local conflicts, with the objective of complaints of police misconduct. However key police
providing a better quality of life and sense of security. functionaries (e.g., DGP and police station in charge) will
• It may include patrolling by the police for non-emergency have a minimum tenure of two years unless they have
interactions with the public, actively soliciting requests for been convicted by a court, or suspended from service, etc.
service not involving criminal matters, community based • Service Conditions: State government will ensure that the
crime prevention and creating mechanisms for grassroots average hours of duty of a police officer do not exceed 8
feedback from the community. hours (in exceptional situations, 12 hours). Adequate
• Various states have been experimenting with community insurance coverage will also be provided to personnel
policing including Kerala through ‘Janamaithri Suraksha against any injury disability or death caused in line of duty.
Project’, Rajasthan through ‘Joint Patrolling Committees’, A Police Welfare Board must also be set up to administer
Assam through ‘Meira Paibi’, Tamil Nadu through ‘Friends and monitor welfare measures for police, including
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GOVERNANCE
medical assistance, group housing, and legal aid for All state and UTs have also been requested to create
officers facing court proceedings. additional posts of women constables and sub-inspectors
and fill up vacancies by recruiting them.
BARRIERS AND CHALLENGES FACED BY WOMEN
►STATUS OF WOMEN IN POLICE
Women face various challenges at every stage of her career
Employment of women in the police was initially viewed with in policing, from recruitment to postings, promotion, training,
scepticism and disfavour. When the Punjab police and lack of proper facilities. Some issues are:
commission (1961-62) sought the views of different state
• The extent that women police, particularly at junior ranks,
governments on the induction of women into the police, the
suffer sexual harassment within the workplace
then chief secretary and inspector general of police, Tamil
Nadu, stated that the recruitment of women in the police • Limiting the number of posts for which women are eligible
would be unwise because they are not suited to the tough to apply
requirements of the job. However, changes in social • Disallowing postings in home districts for specified periods
conditions, the increasing involvement of women in crime of time
either as accused or victim, growing juvenile delinquency and
• Confinement of women to desk jobs
domestic violence necessitated employment of women in
greater numbers in the police. Although women have now • Lack of adequate facilities and infrastructure.
become an integral part of the police forces in the world, These challenges stem from both larger socio-cultural factors,
their numbers remain poor. and societal prejudices, that feed into and shape police
WOMEN IN POLICE FORCE internal sub-cultures and institutional environments, physical
and otherwise.
• Women constitute 7.28 per cent of the police force in
India. RECOMMENDATIONS
• Their presence is 2.47 per cent in Naxal-hit Telangana. Achieving substantive equality between men and women
within the police requires a multipronged approach. It
• In militancy-affected Jammu and Kashmir, there are just
requires systematic planning towards an incremental
3.05 per cent women in a police force which has a
increase in the overall representation of women at all levels,
sanctioned strength of more than 80,000 police personnel.
within a specified time period and towards the ultimate goal
• In Uttar Pradesh, the country's most-populous state, the of achieving proportionate representation of men and
police force has only 3.81 per cent women. It has a women.
sanctioned strength of around 3,65,000 personnel.
STEPS NEEDED ARE:
• The percentage of women in police forces in Andhra
• Recruitment: Ensure a level playing field for women in the
Pradesh, Madhya Pradesh and Meghalaya was also low
police is to increase their numbers. Merely providing
• Tamil Nadu has the highest number of women police reservation is not enough; police departments should
personnel, the situation in Himachal Pradesh, Maharashtra develop an action plan to achieve the target of 30% or
and Goa was relatively better. more in a time-bound manner. This also applies to States.
• Among the Union territories, Chandigarh has the highest • Allocation of work: The model policy should strive to
number of women personnel while the Delhi Police, with a ensure that decisions on deployment of women are free of
sanctioned strength of around 85,000 personnel, had just gender stereotyping. Women police officers should be
8.64 per cent women in its roll as on January 1 last year. encouraged to take on public order and investigative
The situation is pathetic despite the Union home ministry crimes of all types, and should be given duties beyond the
sending advisories in 2009, 2012 and 2016 to all the state minimum mandated by special laws. Desk work too must
governments and Union territories to increase the strength of be allocated evenly among men and women.
women police personnel to 33 per cent, a senior ministry • Work-life balance: A major burden of family and childcare
official told . responsibilities falls on women. Yet, police departments
still lack proper internal childcare support systems.
Departments need to be mindful of this social reality and
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GOVERNANCE
exercise sensitivity in making decisions on transfers and NGO play an important role in the society as an
posting of women personnel. As far as possible, women implementing organisation, a catalyst and also as a
should be posted in their home districts in consultation partner which mobilizes the local resources for
with supervising officers. development.
• Working Environment: Police departments must also • NGOs have also been key drivers of inter-governmental
ensure safe working spaces for women and adopt a zero- negotiations, ranging from the regulation of hazardous
tolerance policy towards discrimination and harassment, wastes to a global ban on land mines and the elimination
in order to make policing a viable career option for of slavery. Further, their presence not only fills the
women. governance gap but also pushes the government to take
up important reforms and legislation in various sectors of
the society.
►PRESSURE GROUPS & NGOS • The important case where the Supreme Court granted
homosexuals their right to chose consensual sex partners
Development has become an all inclusive concept as it
was initiated by an NGO, Naaz Foundation. In the
includes not only economic but rather a multi-dimensional
important case of NALSA v Union of India which declared
process involving re-organisation and reorientation of an
transgender as third gender of the society was also taken
entire economic and social system. Development is a two
up by an NGO.
side game and involves participation of the policy makers and
those for whom such policy outreach is necessary. Thus, to • As development actors, NGOs have become the main
ensure inclusiveness in developmental programmes, service providers in countries where the government is
government encourages participation from non-state actors unable to fulfill its traditional role especially for vulnerable
like pressure groups, NGOs, SHGs etc. This participation not section of the society especially in the field of health,
only helps in improving the quality of governance but also education as well as climate change.
keeps the government aware of the situations on the ground. • An NGO Goonj uses urban discard as a tool to alleviate
Let us understand how pressure groups and NGOs helps in poverty and enhance the dignity of the poor in the world. It
the development process through their participation. address basic but neglected issues of the poor by involving
PRESSURE GROUPS them in evolving their own solutions with dignity and
urban material as reward.
• Pressure groups are the interest groups which work to
secure certain interest by influencing the public policy. • NGOs helps in capacity building in diverse fields such as
They exert pressure on the persons or body in power and health, education, environment awareness, social
influence Government decisions in their favour. inclusion, skill enhancement etc. and also helps in filling
the development deficit. Thus, NGOs are important
• They are non-aligned with any political party and work as
stakeholders in the development process and helps in
indirect yet powerful group to influence the decision. They
imparting their extensive knowledge for capacity building.
are present across the sectors in India and seek to
influence the policy makers in order to advance their own HOW THEIR ROLE BENEFITS GOVERNMENT AND CITIZENS?
objectives. • Supplementing electoral democracy - They keep
• Some of the prominent pressure groups in India are as governments up to date with public opinion between
follows: FICCI (Federation of Indian Chambers of elections and give voice to sections of society who might
Commerce and Industry), CII (Confederation of Indian otherwise be unheard or overlooked.
Industry), All India Kisan Congress, India Bar Association, • Capacity Building by filling the development needs of
All India Medical Council, media, The Tribal sang of Assam, citizens.
Schedule Caste Federation, different Students Unions etc.
• Community Participation- They encourage people’s
ROLE OF NGOS participation in policy or decision-making of the
• Non-Government Organisations (NGO) is an institution or government. For example, during the budget preparation
a private organisations which are free from government finance ministry organizes the meetings with pressure
control and operate on non-profit basis. Traditionally an groups of several areas of economy.
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• Education - Pressure groups & NGOs play an important • Although it is often assumed that NGOs are charities or
role in promoting healthy discussion and debate, and enjoy non-profit status, some NGOs are profit-making
broaden the variety of beliefs and views, leading to a organizations such as cooperatives or groups which lobby
better informed public. An educated electorate means that on behalf of profit-driven interests. For example, the World
public policy will better reflect the needs of society. Trade Organization's definition of NGOs is broad enough
• Benefits of competition - Pressure groups constantly to include industry lobby groups such as the Association of
compete against each other which in turn even out the Swiss Bankers and the International Chamber of
spread of power. This competition among non-state actors Commerce.
motivates them to perform better in their respective fields
for development and benefit of the society. This in turn
becomes productive for the government as well for the
►CORPORATE GOVERNANCE
citizens. Corporate Governance is essentially all about how
• It provides a Platform to raise important issues of regional corporations are directed, managed, controlled and held
and national importance including those whose belong to accountable to their shareholders.
the margins of the society and are by themselves not Corporate Governance could be defined as ways of bringing
capable to deliver their needs and requirement to the the interests of investors and managers into line and
government. ensuring that firms are run for the benefit of investors. It is
• They also work as the agents of voiceless and vulnerable concerned with the relationship between the internal
people like prostitutes, LGBT, HIV victims, victims of governance mechanisms of corporations and society’s
custodial torture etc to fight for their rights. conception of the scope of corporate accountability.
Corporate governance is the acceptance by management of
CONS
the inalienable rights of shareholders as the true owners of
• These pressure groups and NGOs at time file unnecessary the corporation and of their own role as trustees on behalf of
public interest litigations in Courts which are at times the shareholders.
dismissed. This has led to an increase of PIL culture in the
EVOLUTION
High Courts & Supreme Court.
• In India, corporate governance is regulated by Securities
• They at times are quite biased in favour of their own
and Exchange Board of India (SEBI) and the Ministry of
interest and present a suitable argument to suit their
Corporate Affairs.
needs. Campaigns by pressure groups may not present a
balanced argument and rather promote certain vested • Corporate governance initiatives in India began in 1998
interests. with the Desirable Code of Corporate Governance
published by Confederation of Indian Industry (CII).
• Recently as per a report, the National Security Adviser
suggested that some of these organisations by • Corporate Governance was given statutory status in the
representing marginalised section of the society can lead year 2000 through the introduction of Clause 49 of the
to security issues especially regarding Left Wing Listing Agreement in the Companies Act, 1956. This was
organisations. based on recommendations of Kumar Mangalam Birla
Committee. As per the law, all companies listed on stock
• Foreign funding received by these groups often make
exchanges were required to comply with these norms.
them vulnerable to defend the best interest of those who
fund them rather than promoting the real cause. • In 2002, the Naresh Chandra Committee on Corporate
Audit and Governance, drawing from the Sarbanes-Oxley
• They at times present misleading arguments and create
Act of the United States on accounting irregularities,
additional pressure on the government to act on certain
suggested various reforms relating to the appointment of
issues as per their desire without debating the pros and
auditors, audit fee and the certification of accounts.
cons of the argument.
• In 2003, the Narayana Murthy Committee analysed the
• They represent very small section of the society including
role of independent directors, related parties and financial
those who fund their functioning so cannot be said to be
disclosures. It led to the compulsory disclosures of
truly democratic in their nature and functioning.
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information by listed companies to its shareholders. This family may be allowed to run for the post of directors to fill
brought about transparency in the system. the gap.
• Securities and Exchange Board of India (SEBI) has recently INDEPENDENT DIRECTORS
set up a committee under the chairmanship of Uday • Independent Directors are responsible for decisions taken
Kotak, chief of Kotak Mahindra Bank to improve the by the board of directors. However, this may discourage
standards of corporate governance of listed companies in many people to become ID as previously they were not
India. held accountable for any decision of the Board.
• The panel headed by Uday Kotak, will submit their report AUDITORS
within a period of four months as mandated by SEBI.
Under the new Act, an auditor cannot perform non-audit
• JJ Irani Committee report led to the change in Companies services for the company and its holding and subsidiary
Act and a new Companies Act, 2013 was enacted. It companies. This provision seeks to avoid conflict of interest,
mentioned elaborately on the good practices of the which is likely to arise if an auditor performs several diverse
companies. functions for the same company such as consultancy.
NEED FOR CORPORATE GOVERNANCE IN INDIA Auditors also have the duty to report fraudulent acts noticed
• A corporation is a congregation of various stakeholders, by them during the performance of their duties. However, no
namely customers, employees, investors, vendor partners, auditor will report anything illegal because of their financial
government and society. In this changed scenario an interest in the company.
Indian corporation, as also a corporation elsewhere, The 2013 Act also provides for the compulsory rotation of
should be fair and transparent to its stakeholders in all its auditors and audit firms. In fact, it even prescribed a
transactions. statutory cooling off period of five years following one term
• This has become imperative in today’s globalized business as an auditor.
world where corporations need to access global pools of • Most auditors are smart financial experts and helps the
capital, need to attract and retain the best human capital companies in financial manipulations of their assets and
from various parts of the world, need to partner with liabilities. Thus, practically it becomes very difficult to
vendors on mega collaborations and need to live in regulate auditors due to their financial expertise.
harmony with the community.
COMMITTEES
• Unless a corporation embraces and demonstrates ethical
• CA 2013 mandates four types of Committees to be
conduct, it will not be able to succeed.
constituted by the Board namely
• Corporations need to recognize that their growth requires
• Audit Committee
the cooperation of all the stakeholders; and such
cooperation is enhanced by the corporations adhering to • Nomination and Remuneration Committee
the best Corporate Governance practices. In this regard, • Stakeholder’s Relationship Committee
the management needs to act as trustees of the
• Corporate Social Responsibility Committee
shareholders at large and prevent asymmetry of benefits
between various sections of shareholders. • The audit committee has been entrusted with the task of
providing recommendations for appointment and
CHANGES MADE BY NEW COMPANIES ACT, 2013
remuneration of auditors, review of independence of
• Companies may find it difficult to be in compliance with auditors, providing approval of related party transactions
the Act unless they have already identified or internally and scrutiny over other financial mechanisms of the
groomed women candidates that are qualified to be company.
appointed to the board.
• CSR has in a way become a liability for most of the
• Companies Act 2013 requires companies to have Three companies. It was incorporated in the company to blend
classes of directors namely 1. Resident Director social responsibility along with profit making. But
2.Independent Director and 3.Woman Director. companies are more interesting in counting numbers
• Companies formed in India are mostly family based hence, rather than improving ethics through proper contribution
to fulfill this requirement, more female members from the through CSR activities.
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GOVERNANCE
►ISLAND DEVELOPMENT AGENCY taking on ‘Smart Cities’ projects further demands similar
international cooperation.
The islands of India hold immense unexploited potential for
However, care must be taken to safeguard and maintain the
fostering growth and achieving cohesive socio-economic
position of these islands as vital strategic assets for national
development of the region in particular and also, the nation
security while keeping their nature and composition as
as a whole. They can significantly contribute to the GDP by
biodiversity hotspots intact.
leveraging the gains from promoting infrastructure and
tourism on a large scale.
The islanders in both Andaman & Nicobar and Lakshadweep ►BENAMI TRANSACTION ACT
expect satisfactory jobs; opportunities for self-employment;
There are concerns about huge corruption on account of
sufficient income, affordable state-of-the-art facilities for
ongoing benami transactions as most of the black money is
healthcare; access to high quality education; and adequate
funnelled in real estate market and bullion market through
air, sea and web connectivity.
these. To deal with these, the Parliament has passed The
Thus in order to formulate the best strategies to meet these Benami Transactions (Prohibition) Amended Act, 2016 Act.
high and multi-dimensional expectations of the islanders,
BENAMI: MEANING, TRANSACTION AND PROPERTY
Island Development Authority has been formed.
• Benami in Hindi means "without name" or "no name".
ABOUT IDA
• It is to define a transaction in which the real beneficiary is
• IDA was set up in June 2017 following Prime Minister’s
not the one in whose name the property is purchased. As a
review meeting for the holistic development of islands.
result, the person in whose name the property is
• The meetings of the agency are chaired by the Union purchased is just a mask of the real beneficiary (Fictitious).
Home Minister. Members of IDA include cabinet secretary,
• Benami transaction also means a transaction or an
the home secretary, secretary (environment, forests and
arrangement where property is transferred to or is held by
climate change), secretary (tourism) and secretary (tribal
a person (eg: A) and the consideration or payment for such
welfare).
property has been provided by another person (eg: B).
INITIATIVES TAKEN Benami Property" can be assets of any kind, whether
• Key Infrastructure projects such as creation of movable or immovable, tangible or intangible.
jetties/berthing facilities, Roll-on/Roll-off ships; Bridges on HOW IT SPREADS?
Andaman Trunk Road; Upgradation of Diglipur Airport;
• Benami transactions are entered into to buy movable or
Construction of Minicoy Airport; Modernization of existing
immovable assets because the beneficial owner cannot
Jetty at Kavarati; Augmentation of Satellite Bandwidth from
buy such property legally in their name.
1.118 Gbps to 2.118 Gbps in Andaman & Nicobar;
augmentation of helicopter services for Islanders and • This is because they probably may not have sufficient
tourists etc. are being accorded priority accordingly. Income Tax Returns to show to tax authorities in case of
an enquiry or an audit.
• With better communication services, Information
Technology based and other Micro, Small and Medium • Thus, such person takes help of another person or
Enterprises (MSME) would be promoted in the Islands. Benamidar who has sufficient income tax returns or even
a fictitious person who exists only on documents and buys
• Moreover, international collaborations can also be banked
property in his name.
on for the same. The 2016 Indo-Japan Joint Statement on
Bilateral Cooperation envisioned to develop “Smart • However, in such transaction, all the expenditure is
Islands” on the line of the ‘Smart Cities’ project. Japanese provided by the Beneficial Owner. There are various shell
capital and expertise can be both pioneering as well as companies who operate as Benamidar and invest for their
beneficial to this endeavor. The development of the beneficial owners. All such dual transactions can be
Reunion Islands by France can be a guiding example and termed as benami transaction.
also opens up the opportunity for prospective
collaboration with Paris in implementation of such
projects. The positive response by OECD countries in
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GOVERNANCE
SALIENT PROVISIONS OF THE ACT • Lastly, in this respect, linking of PAN Card with Income Tax
• This act defines a benami transaction, as a transaction Returns of citizens will add another layer of financial
where in a property is held by or transferred to a person, security and will act as a deterrent for such illegal
but has been provided or paid by another person. transactions.
• The definition also includes property transactions where: IMPACT
ο a transaction been made under a fictitious name; • Benami transactions are entered into to buy movable or
immovable assets because the beneficial owner cannot
ο the owner is not aware or denies knowledge of the
buy such property legally in their name. This is because
ownership of the property;
they probably may not have sufficient Income Tax Returns
ο the person providing the property is not traceable. to show to tax authorities in case of an enquiry or an audit.
• Whoever is found guilty of the offence of benami • Thus, such person takes help of another person or
transaction shall be punishable with rigorous Benamidar who has sufficient income tax returns or even
imprisonment for a term which shall not be less than one a fictitious person who exists only on documents and buys
year, but which may extend to seven years; and property in his name. However, in such transaction, all the
• Such person shall also be liable to fine which may extend expenditure is provided by the Beneficial Owner. There are
to twenty-five per cent of the fair market value of the various shell companies who operate as Benamidar and
property. invest for their beneficial owners. All such dual
transactions can be termed as benami transaction.
• In case of false information, it would lead to imprisonment
for a time period of six months to five years and a fine of • This Act empowers authorities to not only prevent such
up to 10% of the fair market value of the benami property. illegal transactions but also penalizes them. Lots of
unaccounted money (also called black money) is siphoned
• Any property, which is subject matter of benami
off in such transactions by various entities, organisations
transaction, shall be liable to be confiscated by the Central
and even individuals.
Government.
• Several benami transactions have been identified since the
• The act also specifies certain exemptions from the
coming into effect of the amended law. Show cause
definition of a benami transaction. These include cases
notices for provisional attachment of benami properties
when a property is held by:
have been issued in several cases involving properties of
ο a member of a Hindu undivided family, and is being the value of approx Rs. 1800 crore (as per estimation of
held for his or another family member’s benefit, and is Income Tax Department). The attached benami properties
financially maintained by income of that family; include deposits in bank accounts and immovable
ο a person in a fiduciary capacity; (eg: trustee) properties.
ο a person in the name of his spouse or child, and the • The Adjudicating Authorities under the Act has been
property has been paid for from the person’s income. provided with ample powers to effectively restrict such
transactions and confiscate properties involved in such
APPELLATE TRIBUNAL
transactions. Attachment and confiscation of properties
• The matters pertaining to benami transaction shall not be made by various authorities empowered under the Act will
entertained by Civil Courts and the Act bars their help in bringing those unaccounted properties within our
jurisdiction on any such matters. formal audit system and will be penalized and taxed
• There will be an appellate tribunal that will hear appeals accordingly.
against any orders passed by the Adjudicating Authority. • In this respect, linking of PAN Card with Income Tax
• The Appellate Tribunal will consist of a Chairperson and at Returns of citizens will add another layer of financial
least two other Members of which one shall be a Judicial security and will act as a deterrent for such illegal
Member and other shall be an Administrative Member, transactions.
stated the report.
• The appeals against orders of the Appellate Tribunal will
go to the high court.
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GOVERNANCE
►THE CRIMINAL LAW (AMENDMENT) • shall be punished with imprisonment for life, or
ο imprisonment for the remainder of person’s natural life,
ACT, 2018
and with fine.
India as a whole is witnessing epidemic like situation in terms
CHANGES UNDER INDIAN EVIDENCE ACT
of increasing number of rape incidents. The collective
consciousness has taken a beating due to child rapes which • Under the Evidence Act, in determining whether the act
are happening now and then. In this backdrop, the Union was consensual or not, the past sexual experience or
Cabinet has approved The Criminal Law (Amendment) Act, character of the victim is disregarded. This provision has
2018. been extended to the rape and gang rape of minor girls
below 12 years of age and below 16 years of age.
Hereby, discussing the provisions of the Act.
CHANGES UNDER PROTECTION OF CHILDREN FROM
The legislature enacted the Criminal Law Amendment Act,
SEXUAL OFFENCES ACT (POSCO), 2012
2018, to amend the Indian Penal Code, 1860, Indian Evidence
Act, 1872, the Code of Criminal Procedure, 1973 and the • POCSO defines child as any person below the age of 18
Protection of Children from Sexual Offences Act, 2012. years. POCSO provides for punishment of at least seven
years or life imprisonment, along with a fine for rape of
CHANGES UNDER INDIAN PENAL CODE (IPC)
children.
• The minimum imprisonment under section 376 (offence of
• For rape of minors below the age of 12 years or for gang
rape) has been increased from 7 years to 10 years.
rape of minors, the punishment is rigorous imprisonment
• Whoever commits rape on a woman under 12 years of age of at least ten years or life imprisonment, along with fine
shall be punished with rigorous imprisonment under Indian Penal Code.
ο for a term not less than 20 years of imprisonment, • The act amends the POCSO, 2012 to state that for all such
ο but which may extend to imprisonment for the offences of rape, the Act which provides for a higher
remainder of the person’s natural life, and punishment between POCSO and Indian Penal Code shall
apply.
ο with fine or with death.
CHANGES UNDER CRIMINAL PROCEDURE CODE (CR.PC)
• Where a woman under 12 years of age raped by one or
more persons constituting a group (gang rape) or acting in • As per Cr.PC, investigation into rape of a child must be
furtherance of common intention, then completed within 3 months. The ordinance reduces the
time to 2 months. Thus, investigations into all offences of
ο each of those person shall be considered to have
rape including gang rape and rape of minors under age of
committed the offence of rape, and
12 and 16 years shall be completed within 2 months.
ο shall be punished with imprisonment for life, or
• It makes anticipatory bail inapplicable to such persons
ο imprisonment for the remainder of person’s natural life,
accused of rape or gang rape of women below the age of
and with fine or death.
12 or 16 years of age.
• Whoever commits rape on woman under 16 years of age
• Cr.PC provided for free medical treatment and
shall be punished with rigorous imprisonment
compensation by state government to all rape victims. The
ο for a term not less than 20 years, Act has extended this facility of free medical treatment and
ο which may extend to imprisonment for life, or compensation by state government to cover victims of
rape and gang rape below 12 and 16 years of age.
ο imprisonment for the remainder of the person’s natural
life, and shall also be liable to fine. • When public servants are accused of the offence of rape,
then prior sanction need not be taken from the
• Where a woman under 16 years of age is raped by one or
government to initiate case proceedings against such
more persons constituting a group (gang rape) or acting in
public servants.
furtherance of common intention, then
ο each of those person shall be considered to have
committed the offence of rape, and
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GOVERNANCE
KEY ISSUES adults under the IPC, rape is as an offence only if the
A. DEFINITION OF RAPE IS NOT GENDER NEUTRAL offender is male and the victim is female. The Act does not
address it.
• In the case of rape of minors, according to the POCSO Act,
the victim may either be male or female (and the offender
could also be of either gender). However, in cases of
B. WIDENING DIFFERENCE IN PUNISHMENT BETWEEN RAPE OF GIRLS AND BOYS
Age (in years) Boys Girls (Before 2018 Act) Girls (After 2018 Act)
10 years to life
Below 12 10 years to life imprisonment 20 years to life imprisonment/death
imprisonment
7 years to life
12-16 10 years to life imprisonment 20 years to life imprisonment
imprisonment
7 years to life
16-18 7 years to life imprisonment 10 years to life imprisonment
imprisonment
C. LOW CONVICTION RATE ►REAL ESTATE REGULATION IN INDIA

Instead of harping on the quantum and severity of
The real estate sector in India caters to the need of
punishment, we have to highlight the issue of a low
infrastructure along with job creation on a sustainable basis.
conviction rate for rape. The dismal conviction rate for rape in
Post liberalisation saw the emergence of this sector and
India is a consequence of complicity of state agencies. It is
involved big players from the Indian industry. However,
precisely this which contributes to the culpability of rapists
investments in real estate have become one of the best ways
and nurtures the growing impunity with which sexual crimes
to park illegal and unsolicited wealth by the corrupt through
are committed. This is a reality well captured in National
benami transactions.
Crime Records Bureau data that show high figures of repeat
sexual offenders. Thus, with an aim to curb black money conversion into real
estate and also to protect interest of genuine home buyers,
Conclusion
government of India enacted The Real Estate (Regulation and
For the wheels of justice to start turning, it is essential to Development) Act, 2016 which came into effect on 1st May,
recognize that the crisis lies in the precise manner in which 2017.
the existing criminal justice system unfolds.
SALIENT FEATURES
India’s growing rape culture is best reversed by enhancing
a) Regulator for each state:
conviction rates through reforms in the police and judicial
systems, and by augmenting measures to rehabilitate and • According to RERA, each state and Union territory will have
empower rape survivors. its own regulator and set of rules to govern the functioning
of the regulator.
We require nothing short of the following: greater allocation
of state resources towards the setting up of fast-track courts; • Government of two or more States or Union territories
more one-stop crisis centres; proper witness protection; may establish one single Authority.
more expansive compensation for rape survivors, and an • Government may establish more than one Authority in a
overhaul of existing child protection services. Until these State or Union territory.
issues are addressed, little will change on the ground. b) Mandatory Registration
• It shall be mandatory for every promoter/builder or a real
estate agent to apply for registration to state regulator of
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GOVERNANCE
the real estate project which the builder aims to develop projects whereminimum 70 per cent of the money from
and sell. investors and buyers has to be deposited.
• The builder/promoter cannot advertise, market, book, sell • The developer, within three months of applying for
or invite persons to purchase any part of the property registration of a project with the Real Estate Regulatory
before applying for registration to such state regulator. Authority shall deposit in a separate bank account70 per
• It shall be the responsibility of each state regulator to cent of the amount collected and unused for ensuring
register real estate projects and real estate agents completion of ongoing projects.
operating in their state under RERA. f) In case of default
c) Disclosure of plan • If the promoter defaults on delivery within the agreed
• Promoters shall declare original sanctioned plans, changes deadline, they will be required to return the entire money
made later, fresh timeline for completion of ongoing invested by the buyers along with the pre agreed interest
projects to the state regulator. rate mentioned in the contract based on the model
contract given by RERA.
• The details of all registered projects will be put up on a
website for public access. g) In case of delay
d) Commencement & Completion Certificate • In case of delay by the promoter in handing over the
house to the owner, developers will be required to refund
• Granting of commencement certificate by the authority
or pay compensation to the allottees with an additional
allows a builder to begin development works on an
interest rate within 45 days of the project getting delayed.
immovable property as per the sanctioned plan.
h) Imposition of liability
• Similarly, completion certificate by the authority signifies
that the real estate project has been developed according • Liability of developers for structural defects for five years.
to the sanctioned plan, layout plan and specifications as • Imprisonment of up to three years for developers and up
approved earlier. to one year in case of agents and buyers for violation of
e) Separate Account orders of Appellate Tribunals and Regulatory Authorities.
• The promoter of a real estate development firm has to

maintain a separate escrow account for each of their
BENEFITS OF RERA
INDUSTRY DEVELOPER BUYER AGENTS
• Governance and
• Significant buyers
transparency • Common and best
protection
• Project efficiency and practices
• Quality products and
robust project delivery • Increase efficiency • Consolidation of sector (due to
timely delivery
• Standardization and • Consolidation of mandatory state registration)
• Balanced agreements and
quality sector • Increased transparency
treatment
• Enhance confidence of • Corporate • Increased efficiency
• Transparency – sale
investors branding • Minimum litigation by
based on carpet area
• Attract higher • Higher investment adopting best practices
• Safety of money and
investments and PE • Increase in transparency on
funding organised funding utilisation
• Regulated Environment
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GOVERNANCE
►STATE PUBLIC SERVICE Commission take a minimum time period of one and half
year to complete. In some cases, it may take even longer.
COMMISSION: CRITICAL ANALYSIS
The following issues need to be examined in this context:-
Articles 315 to 323 of the Constitution deal with Public Service
A. APPOINTMENT OF CHAIRMAN / MEMBERS
Commissions, both at the Union and the State level.
Currently, the Chairman / Members of the State Public
Article 320 of the Constitution of India lays down the
Service Commission are appointed by the Governor in
functions of the State Public Service Commission. The
accordance with provisions described in Article 316 of the
functions of the State Public Service Commission are - to
Constitution.
conduct examinations for appointment to the services of the
State and the State Public Service Commission will be 2ND ARC RECOMMENDATIONS
consulted by the State Government on the following issues:- • In making appointment to a State PSC the Governor
• on all matters relating to methods of recruitment to civil should consult the chairman of the UPSC and the
services and civil posts Chairman of the State PSC.
• on the principles to be followed while making • At least one member of the State PSC should belong to a
appointments, promotions and transfers to civil services different State.
and posts • The minimum academic qualification for membership of a
• on all disciplinary matters of a person serving the Commission should be a university degree.
government of a State in a civil capacity, including • A member selected from among government officers
memorials or petitions relating to such matters should have held office under a State Government or the
• on any claim by a person, who is serving or has served the Union Government for at least ten years; and should have
government in a instituted against him in respect of acts occupied the position of a Head of Department or
done or purporting to have been done in the execution of Secretary to Government in a State or a comparable
his duty, shall be paid out of the consolidated fund of the position in an institution of higher education.
state • Members selected from non-official should have practiced
• on any claim for the award of a pension in respect of at least for ten years in any of the recognised profession
injuries sustained by a person while serving under the like teaching, law, medicine, engineering, science
government in a civil capacity and any question as to the accountancy or administration.
amount of any such award. B. ROLES AND FUNCTIONS OF PUBLIC SERVICE
In the early years of Independence, State Public Service COMMISSIONS
Commissions throughout the country functioned well Article 320 deals with the functions of the Public Service
primarily on account of the fact that: There was objectivity in Commission. Article 320(3) describes matters on which Union
selection of competent and experienced people as Chairman Public Service Commission or the State Public Service
and Members of the Commission. (b) The Commissions Commission shall be consulted
enjoyed excellent reputation for objectivity, transparency and
2ND ARC RECOMMENDATIONS
fairplay.
• The PSC should handle only recruitment of candidates for
ISSUES
higher level posts under the State Government (Class I and
But in recent years, this Constitutional body has suffered Class II positions of various State cadres)
extensive loss of reputation in many States, mainly on
• Advising government on senior level promotions through
account of: (a) charges of corruption, favouritism and
the DPC and
nepotism in matters of recruitment and (b) use of archaic
processes and procedures in its functioning which leads to • Recruitment and promotions to teaching posts in
inordinate delays. For example, the civil services government Colleges and fully funded units of the
examinations conducted by a State Public Service Universities.
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GOVERNANCE
• With regard to the appointment of junior level and powers under various provisions of the Cr.PC. Is the
functionaries of the State Government, the role of the Officer in overall charge of Law and Order and internal
State PSC should be to lay down broad norms and security in thedistrict. It has the authority to issue
standards. The recruiting organisations concerned custody/detention warrants under special anti-
C. STRENGTH OF THE PUBLIC SERVICE COMMISSION crime/security enactments e.g. NSA.
The Constitution does not prescribe any limit on the strength Retains importance in Police matters too e.g. under Bihar
of the Public Service Commission. By tradition, the size of this Police Act 2007, the Collector is the Chairman of the District
Body in the States has remained small. The Union Public Accountability Authority which monitors issues concerning
Service Commission had a slightly larger strength. departmental inquiries and complaints of misconduct against
junior policemen.
The Commission is of the view that both (a) the matter of
appointment of Chairman/ Members and their qualifications • Licensing and Regulatory Authority: The Collector is the
and (b) the matter of prescribing a limit for the strength of licensing and regulatory authority under various special
the Commission are complex issues. There is need to evolve laws such as Arms and Cinematography Acts etc. in the
a national consensus on these two issues among the States district.
through discussions/deliberations at the Inter-State Council. • Disaster Management:The Relief /Disaster Management
2ND ARC RECOMMENDATIONS: branch of the Collector’s office deals directly with these
functions.
• Steps should be taken to ensure that persons of high
standing, intellectual ability and reputation are selected as • Elections:The Collector is the District Election Officer for
Chairman/Members of the State Public Service Parliament, State Legislature and Local Bodies.
Commissions. • Food and Civil Supplies: In most States, the Collector has
• A limit should also be imposed on the strength of its a direct role to play in the functioning of the Food and Civil
membership. Supplies Department at the district level. He oversees the
implementation of the Public Distribution System and has
• There is need to evolve national consensus among States
powers to enforce provisions of the Essential Commodities
on the issues of appointment of Chairman/Members and
Act and related Rules and Orders.
limit on the membership of the Commission, through
discussions/deliberations at the Inter-State Council. • Welfare:The Collector plays a very critical role in the
execution of welfare programmes such as those relating to
disability, old age pension etc. either through direct
superintendence or through oversight
►DISTRICT ADMINISTRATION: 2ND
• Census: The Collector is the principal Census Officer.
ARC RECOMMENDATIONS
• Coordination: One of the most important roles of the
Each district in India has an officer-in-charge who represents Collector is to coordinate activities of other
the state governments in that area in the capacity of agencies/departments at the district level
Collector, District Magistrate and District Officer. He is the
• Economic Development (Agriculture, Irrigation,
head of the administration in the district.
Industry, etc.): Though, many activities/functions of these
FUNCTIONS OF THE DISTRICT COLLECTOR/ DEPUTY sectors stand transferred to PRIs and local bodies, the
COMMISSIONER Collector still has some role in many of these programmes.
• Revenue Administration: The Collector handles all He chairs meetings of various Committees of Agriculture,
matters connected with land reforms and revenue Animal Husbandry, Veterinary, Sericulture, Handlooms,
administration (including custody of government lands). Textiles, Irrigation and Industries departments. Also
He is assisted by an Additional Collector / Joint Collector. reviews their activities in monthly/bimonthly meetings and
Collector is the officer-in charge of the district under the coordinates among the departments.
State Excise Act. • Human Resource Development:Though, a major part of
• Executive Magistracy and Maintenance of law and this subject (primary education) stands transferred to the
order: As the Magistrate of the District, exercises functions PRIs, the District Collector/Deputy Commissioner has been
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GOVERNANCE
retained as Chairman/Co-Chairman in some of the district (c) in the interim period till the time the local elected
level committees. Institutions mature into District Government – as the
• Rural Development: Though major activities of this Chief Executive Officer of the proposed District Council.
department stand transferred to the PRIs/ULBs, in some The main functions of the Collector may now include: (i) Land
States, the Collector still continues to be the nodal and Revenue administration, land acquisition, custodian of
authority for some programmes. Under the National Rural government lands and properties, registration, recovery of
Employment Guarantee Act, the Collector has been public demand (ii) Executive magistracy and maintenance of
designated as the District Programme Coordinator in some Law and Order, Internal Security, Prisons, Remand/ Juvenile
of the States. Homes (iii) Licensing and regulatory functions with respect to
• Local Self Government (PRIs / ULBs): The role of the various special laws pertaining to Arms, Explosives, Cinemas
District Collector/ Deputy Commissioner with regard to etc. (iv) Disaster Management (v) Civil supplies, public
local self governing institutions varies across different distribution and social welfare (vi) Excise (vii) Transport (viii)
States. Mostly these relate to the powers of the State Mining (ix) Labour Laws (x) Elections (xi) Legal Affairs (xii)
Government visà- vis the PRIs. (Powers of suspension, Census (xiii) Protocol, general administration, (xiv) Treasury
resolution, supersession etc.) management / district accounts office related work (xv) Public
Relations Department, NIC and other miscellaneous functions
• Preparation of Development Plan: Though under
assigned by the State Government, coordination with civil
Articles 243-ZD and 243- ZE, the planning functions in a
society (xvi) Coordination with line departments / other
district have been given to DPC/MPC, the Collector
agencies of the State and Union Governments, etc.
coordinates with departments/ agencies involved in
execution of various works. HENCE 2ND ARC RECOMMENDED
• The Collector is also the Chairman of a large number of • There is need to realign the functions of the Deputy
Committees at the district level. Besides, there may be Commissioners/ District Collector so that he concentrates
other important organizations functioning in the district on the core functions such as land and revenue
such as the Red Cross Society, a Degree College or Sports Administration, maintenance of law and order, disaster
Associations which may be also headed by the Collector. management, public distribution and civil supplies, excise,
Often, the Collector is appointed as the Chairman of a elections, transport, census, protocol, general
Committee to manage a major trust/endowment located administration, treasury management and Coordination
in the district. with various agencies/ departments.
Such widespread functions without well defined roles result • The Commission reiterates its recommendations regarding
in lack of clarity and diffusion of the Collector’s the Land Title Management System made in its eleventh
responsibilities. Also, after the establishment of PRIs / ULBs Report on e-Governance. It should be one of the primary
as the third tier of government, there is no need to assign any duties of the District Collector to perform the task
role/function to the Collector in respect of activities which are envisaged in the aforesaid recommendations.
transferred by the State Government to these bodies. As • There is need to strengthen the compliance machinery at
such, the Commission is of the view that there is need to the district level to enforce provisions of the RTI Act and to
redefine the role and responsibilities of the Collector in a reduce the element of delay and subjectivity in the
clear manner. functioning of the lower level formations of the
HIS JOB PROFILE SHOULD CONSIST OF government. This should be done by creating a special RTI
Cell in the office of the Collector, whose functions should
(a) a well defined set of exclusive activities both statutory as
be reviewed by the Collector at regular periodicity.
well as non-statutory as a functionary of the State
Government • Officers may be posted as District Magistrates early in their
career, but in complex and problem-prone districts an IAS
(b) the general work of coordination with various
officer should be posted as DM only on completion of 10-
departments / agencies of the State and the Union
12 years of service.
Governments at the district level and
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GOVERNANCE
• Steps should be taken to ensure that the Collector plays an offices and also with public kiosks located in the far-flung
effective coordination role in activities and programmes of areas of the districts. There should be computerized
other departments at the district level. monitoring of complaints received in this cell.
• There should be an integrated governing structure at the • A Vigilance Cell
district level in the form of the “District Council” with Currently, vigilance is a neglected component of the
representation from both urban and rural areas. The Collectors functioning. In view of the fact that on an average,
Council will act as the “District Government”. The District there are more than ten thousand employees working in a
Collector should have a dual role in this government district under various departments of the State Government,
structure. He should work as the Chief Officer of the there is case for setting up an exclusive vigilance cell at this
District Council and should be fully accountable to the level. This cell could work under overall supervision of the
District Council on all local matters. The District Officer district Collector who will maintain appropriate liaison with
would also be fully accountable to the State Government the office of the State Vigilance Commission/Commissioner.
on all regulatory/other matters not delegated to the
• Tours Inspection Notes and Institutional Memory
District Government.
It is largely due to elaborate inspection notes and personal
• District/sub-district offices, whose activities/functions
observations of the District Collectors that we have a large
coincide with the activities and functions transferred by
collection of valuable District Gazetteers which describe
the State Government to the PRIs/ ULBs need not exist as
almost all aspects of district administration in pre
separate entities at the district and sub-district levels.
Independence India. The tradition continued till around 1960.
Functions funds and functionaries of such offices should
There is need to revive it. This could be done by creating and
be transferred to the appropriate local government
strengthening a cell for this purpose in the District
institutions.
Collectorate.
• The line departments and their Agency Heads should
• Civil Society & Media Cell
provide technical support and guidance to the District
Councils in planning and monitoring implementation. The emergence of civil society groups in various sectors of
governmental activity, now requires that there should be an
MODERNIZING THE OFFICE OF THE DISTRICT COLLECTOR
appropriate forum where civil society groups could interact
The Commission felt that the organizational arrangement of with representatives of the government. A specialized cell
the Collector’s office, currently, is not in tune with the could take care of this necessity. Simultaneously the
requirements of the job. This office has a large interface with increasing role of media in society and governance requires
the citizens, and hence needs to be more efficient and citizen the Collector to handle public issues promptly and effectively.
friendly. Modernization is a basic requirement. At the same time, the Collector’s office could develop
Some important steps that could help this process are: partnerships with them on public education efforts.
• Management Information Systems / IT tools /E-
Governance
►CIVIL SERVICES REFORMS
For effective monitoring and evaluation of
programme/projects which are directly under the charge of Civil service means that branch of governmental machinery
the Collector, there needs to be computerized/MIS attached which is concerned not with law making but with law
to his office. On the basis of these, the Collector could enforcing functions. The civil servants carry out the orders of
undertake monthly or quarterly review of performance. This the ministers and advise them in policy formulation.
cell could also function as the nodal e-governance cell for The civil service system is the backbone of the administrative
other officers located in the district by using its capacity to machinery of the Indian nation.
coordinate, and develop relevant IT solutions. CIVIL SERVANTS PERFORM THE FUNCTIONS OF:
• Grievance & Public Feedback Cell a) Advising the government regarding the programmes.
Grievance redressal of citizens and implementation of citizen Providing the ministers with necessary information and
charters should be a integral part of the Collector’s office. statistics.
This district grievance cell should be linked with the field
196
GOVERNANCE
b) Implementing the plans. policies and programmes • Objectivity in the recruitment and placement process:
formulated by the Government. Widely disseminate job descriptions and selection criterion
c) Monitoring and evaluating the programmes of the and eliminate elements of arbitrariness.
Government. • Reduce the number of civil services: The existing 60 plus
d) Carrying out the tasks delegated to them by the separate civil services at the central and state level needs
Government. to be reduced through rationalization and harmonization
of services. Recruits should be placed in a central talent
e) Determining cases on issues involving rights and
pool, which would then allocate candidates by matching
obligations of private citizens and parties.
their competencies and the job description of the post.
CONSTRAINTS Concomitantly, the number of exams for civil services
Several constraints impede the development of a highly should ideally be brought down to one with all India
efficient, transparent and accountable civil service. ranking. States may also be encouraged to use this pool
for recruitments.
• There is a mismatch between positions and skill sets.
Recruitment is not competency specific and often, the right • Encourage lateral entry: Inducting specialists at higher
person is not placed in the right job. levels of government will provide much needed expertise.
• A related issue is the opposition to lateral entry, which • Nurture specialization: The key to reform in the civil
hinders the development process. As the complexity of the services is encouraging officers to cultivate specializations
economy increases, policymaking becomes a specialized based on their education and skills early on in their
activity. This creates an inherent need for the lateral entry careers. However, it is also necessary to ensure cross-
of professionals into government service. sector mobility for civil servants from areas where they
have become surplus to areas of emerging importance.
• There is a need to forecast staffing needs in the civil
services. This could ideally be done on a five-year rolling • Mentorship: Upon induction, young officers should be
basis. There are instances of lack of employment assigned mentors, preferably with an officer having a
opportunities in some areas, while there are many similar functional specialization or with high-quality NGOs
vacancies in others. for values and softskill mentorship.
• Attracting talent and nurturing excellence, ensuring • Information Technology (IT): Use of IT needs to be
transparency and accountability along with participatory significantly upscaled for planning, forecasting staffing
and representative decision-making are some issues that requirements and recruitments.
need to be addressed. • Hiring policies: The upper age limit for the civil services
should be brought down to 27 years for the general
category in a phased manner by 2022-23. Service
REFORMS IN CIVIL SERVICES
conditions for employees of autonomous bodies need to
Reforms in civil services are a continuous process and several be regulated and harmonized.
initiatives have been taken in recent years by the present
• Strengthen municipal corporation cadres: The number
government. These include, the introduction of a multi-
of staff at municipal corporations should be increased.
stakeholder feedback (MSF) performance evaluation,
Measures that monitor performance along the same lines
dispensing with interviews for lower level positions,
as proposed for other services, including through online
introduction of online mechanisms for appraisals and filing of
appraisals and biometric attendance, need to be
various returns by employees, implementation of e-office,
introduced.
and strengthening training and merit-based postings.
• Outsource service delivery: Efforts need to be made to
RECOMMENDATIONS OF NITI AAYOG ARE:
outsource service delivery to reduce dependence on the
A. RECRUITMENT administrative machinery. Research is needed to identify
• Improve the teeth to tail ratio: Promote an officer- possible services to be outsourced; various PPP models
oriented culture and focus on expanding the numbers of should be explored to determine the best possible mode
officers. of outsourcing.
B. TRAINING
197
GOVERNANCE
• Reorient training: Alter the current system of training to of suspension, to ensure that officers are given their due
meet job-outcome oriented goals. With economic gravity process and are not vulnerable to vested interests and
shifting towards cities, training should be reoriented to political pressures.
focus relatively more on managing urban areas. E. E-INITIATIVES AND PROBITY
• Introduce mid-career training modules for all services. • Ensure probity in governance: Strengthen institutional
• Strengthen and leverage online avenues for training mechanisms for prevention and detection of corruption
• Mid-career exams/skill assessment might be • Strengthen implementation of a Centralized Public
undertaken to evaluate and decide on future postings. Grievance Redressal and Monitoring System (CPGRAMs)
• Prepare handbooks for skill orientation to improve • Implementation of e-Office
competency. • Prompt delivery of services: IT tools need to be
• Introduce the ‘living university’ concept of value creation expanded for single window clearances and stakeholder
based on outcomes and good ideals. consultations in policy.
• Develop ongoing training and immersion modules on a
district-by-district basis
►MODERNIZING CITY GOVERNANCE
C. EVALUATION
FOR URBAN TRANSFORMATION
• Consider replacing annual confidential reports (ACRs)
with multi stake holder feedback (MSF) India is urbanizing at a fast pace and it is expected that by
2050, close to 50 per cent of India’s population would be
• Incentivization: Review existing schemes and introduce
residing in urban areas.
new schemes of incentives for extraordinary performance.
Global experience indicates that cities are central to raising
• Compulsory retirement for underperforming officers:
economic productivity, enhancing job creation and improving
Develop benchmarks to assess the performance of officers
public finance at all levels. Successful and long-lasting urban
and compulsorily retire those deemed unable to meet the
transformation critically depends on reforming the way our
benchmarks.
cities are governed. Hence, city governance is a key enabler
D. GOVERNANCE for urban transformation, and sustained economic growth
• Citizen-centric framework: An inclusive policy framework and job creation.
with citizens at the centre needs to be developed. Apart CONSTRAINTS
from improving public access to information through the
The key challenges plaguing urban governance in India
use of Information and Communication Technology (ICT)
include the following.
and the Right to Information Act (RTI), the RTI’s
management information system portal needs to be • The absence of a modern spatial planning framework,
expanded to cover more public authorities, especially public utility design standards and land titling in cities
subordinate offices of ministries and public sector units. takes a huge toll on economic growth and productivity,
environmental sustainability and living conditions in cities.
• Institutionalize system for effective monitoring of suo
moto disclosures: To bring further transparency to public • There is lack of human resource capacities in the urban
affairs and adopt safeguards to promote accountability, sphere at all levels, especially in urban local bodies (ULBs).
effective monitoring of suo moto disclosures is essential. The municipalities are heavily under-staffed and there are
significant gaps in the skills required for urban
• Enhance capability of public authorities: The
management.
capabilities and knowledge base of central public
information officers (CPIOs), appellate authorities (AAs) • Indian ULBs have huge scope to improve their financial
and information commissions need to be upgraded on a autonomy and capacity to raise resources. Some of the key
continuous basis to enable them to perform their assigned reasons behind the poor state of municipal finances are
roles without external influence. the narrow, inflexible and non-buoyant tax base, broken
financial accounting and audit systems, and the inability of
• Protection of civil servants: Introduce an appropriate
municipalities to levy and recover taxes and user charges.
system of checks and balances, including for the process
198
GOVERNANCE
• Multiple institutions like parastatals, development  Spatial planning and land titling
authorities, public works departments, and ULBs • There is urgent need for a synchronous and modern
themselves report to different departments of the state national framework for the spatial planning of cities that
government and have been entrusted with overlapping replaces the current Urban Development Plans
responsibilities. The distribution of power between elected Formulation and Implementation (UDPFI) guidelines. This
officials at the city level (mayors and councillors) and framework should factor in plan preparation,
central administrative service cadres at the city/ district implementation and enforcement at metropolitan,
levels are highly tilted towards the latter. The 74th municipal and ward levels.
Constitutional Amendment (CAA) to decentralise urban
 Strengthening finances of ULBs and civic agencies
governance has not translated into reality, affecting citizen
participation in cities. • Cities require a financial sustainability roadmap to be
financially self-sufficient to support high-quality
WAY FORWARD
infrastructure and the delivery of services. This comprises
 Leveraging city economy fiscal decentralization, mediumterm fiscal plans, innovative
• Each city needs to be recognized as a distinct unit of the models to improve revenue collection, optimizing return
economy. In larger cities, City Economic Councils can serve on assets especially land and buildings, value capture
as a clearinghouse between business and governments to methods, market-oriented revenue models, PPPs in urban
hasten the progress of specific projects, improve the ease infrastructure and services, and financial accountability
of doing business and catalyse investments into the city. through audited balance sheets and performance MIS
• Concomitantly, a quarterly city dashboard capturing city- reports.
level investments, GDP and employment growth, financial  Capacity building by skilling for municipal jobs and
position and financial performance, and status of strengthening institutions
infrastructure projects can provide a framework for data- • There is huge potential for the creation of direct and
driven decisions. This will measure transformation and indirect skilled jobs in ULBs to improve the quality of
encourage competition among cities. For this, the Ministry infrastructure and services and the management of ULBs.
of Housing and Urban Affairs (MoHUA), the Ministry of
• The National Skill Development Corporation (NSDC) should
Finance and the Ministry of Statistics and Programme
be leveraged to improve understanding of municipal jobs
Implementation may create frameworks for a dashboard
including job definitions, technical competencies and key
subsuming scheme-specific performance MIS.
result areas, which can be considered for inclusion in
 Decentralization and metropolitan governance recruitment rules at the state level and for performance
• The multiplicity of agencies with overlapping jurisdictions standards/accreditation for training institutes to foster a
and fragmented roles and responsibilities is common in functional platform for knowledge sharing. A separate
Indian cities. This leads to delays in implementation of sector skill council for municipal services may be
projects and inefficient service delivery. To achieve the considered.
decentralization goals of 74th CAA, there is an urgent need  Citizen participation
for articulating a framework for governance of cities that
• Enhanced citizen participation is needed for greater trust
includes development authorities, other parastatals,
between citizens and governments, improved
special purpose vehicles (SPVs) and Census Towns.
sustainability, better service delivery and accountability.
• Metropolitan governance systems are also needed in
• ULBs should also encourage the participation of all
million-plus cities. There is a strong case for having a two-
community associations, including settlements of the
tier governance structure where all local functions are
underprivileged and civil society organizations.
transferred to the ward committees and citywide services,
such as transportation, water supply, sewerage, etc., are • Rules and procedures need to be simplified for faster
vested with the city council or regional authorities. implementation of constructive recommendations.
• Moreover, state governments can be encouraged to

transfer 12th Schedule funds, functions and functionaries
to the ULBs.
199
GOVERNANCE
►DATA LED GOVERNANCE AND • Lastly, there is considerable lack of awareness regarding
currently available data sources.
POLICY MAKING
WAY FORWARD
Countries, where large-scale developmental efforts are
The following framework, which focuses on the key aspects
needed, require their policy delivery mechanisms to be
requiring intervention, needs to be enabled by 2022-23 to
robust and efficient. However, paradoxically, these countries
achieve transparent governance:
have very little data needed for the selection, implementation
and evaluation of effective policies. • Both administrative and survey data need to be collected
in digital formats across various sectors in real time to
Rapid advancements in technology have led to an explosive
move from paper based to digitally driven operations. This
growth in the volume of data produced. Data is now being
would require the adoption of latest technologies that
touted as one of the most valuable resources. Given the
require recording in digital format, geo-tagging etc. This
proprietary access to high value data sources, public services
will address the issues related to time lags, data cleansing,
and governance systems in India can better harness the value
etc., associated with surveys to a large extent.
of this data.
• Ensure availability of data at a more granular level –
However, in India, decision making is often based on surveys
village/block/district.
and consultations that are released with a considerable lag.
• Enable data sharing in real time through Application
CONSTRAINTS
Programming Interfaces (API).
The following constraints need to be overcome to enable
• Most of the administrative and survey data are generated
India’s transition to a data-led governance structure.
at the state level. It is recommended that after going
• There is over-reliance on data collection through surveys. through the process of quality assurance, where
These are released at a considerable lag, which diminishes discrepancies are removed, and formats are standardized,
their usefulness in policymaking. There is a dearth of the data should be integrated in a state data repository.
availability of real time operational/administrative data. o This process should be followed by all states based on
One challenge in this regard is that considerable numbers guidelines drawn up by the central government.
of stakeholders are involved in enabling data collection
• The issue of confidentiality will need to be ensured while
systems that are premised on a “bottom-to-top” approach.
dealing with citizen level data.
It will be a huge challenge to get all these stakeholders on
board for a streamlined data collection and reporting • Government statistical organizations responsible for data
mechanism as envisaged for 2022-23. collection and reporting need to be updated on new
technologies.
• There is a problem with the usability of data that is
currently generated. • For better governance and evidence-based policymaking, it
is recommended that tertiary big data collected by private
ο Large volumes of data collected by different
third parties should be used.
government agencies and departments are not shared,
even among the departments.
ο The data shared is often not available in machine ►ASPIRATIONAL DISTRICT
readable format or cannot be integrated with data from
PROGRAMME – NITI AAYOG
other sources to help develop multi-dimensional
insights. The ‘Transformation of Aspirational Districts’ Programme
(ADP) aims to expeditiously improve the socio-economic
ο Enabling adoption of the latest technology at the
status of 117 districts from across 28 states as per report of
grassroots level would involve substantial investment
NITI Aayog. Districts will be ranked on their "incremental
along with skill development of local functionaries.
progress" through Delta Ranking.
ο Furthermore, planning will be required to integrate
The Aspirational Districts programme, through real-time
different technologies so that ground level data can be
monitoring and proactive course corrections, reinforces the
aggregated.
mechanisms of cooperative & competitive federalism
between the Centre and the States, down to the Districts.
200
GOVERNANCE
NITI Aayog has entered into partnership with Tata Trusts, and FOCUS THEMES
Bill & Melinda Gates Foundations (ID Insight) to assist the The programme focuses on 5 main themes which have a
districts in enumerating improvement in key performance direct impact on quality of life and economic productivity of
indicators a through household survey. citizens –
CORE PRINCIPLES OF THE PROGRAMME
Themes Weight Allotted
The three core principles of the programme are –
Health & Nutrition 30%
1. Convergence of Central & State Schemes,
2. Collaboration among citizens and functionaries of Central Education 30%
& State Governments including district teams), and
Agriculture & Water Resources 20%
3. Competition among districts.
Financial Inclusion & Skill 10%
This initiative focuses on the strengths of each district and
Development
prioritizes the attainable outcomes for immediate
improvement. The programme is driven primarily by States. Basic Infrastructure 10%
KEY PARAMETERS ON EACH THEME
It focus on antenatal care, postnatal care, gender parity, health of new-born, growth of children,
Health
contagious diseases, and health infrastructure.
It focuses on learning outcomes, infrastructure of schools and institutional indicators.
• Learning Outcomes - transition rate from primary to upper primary, and subsequently to
Education secondary schooling, average scores in mathematics and languages etc.
• Infrastructure - toilet access for girls, drinking water, electricity supply etc.
• Institutional Indicators - RTE mandated pupil-teacher ratio, timely delivery of textbooks.
Agriculture is the backbone of India, with more than 50% of our workforce engaged in cultivation and
allied activities and hence becomes one of the key factors of governance.
The focus is on
Agriculture & Water
• Output - yield, price realisation etc.,
Resources
• Inputs - quality seed distribution, soil health cards, and
• Institutional Support - crop insurance, electronic markets, artificial insemination, animal
vaccination etc.
Progress in financial inclusion shall be measured through
• Implementation of important government schemes – like Atal Pension Yojana, Pradhan Mantri
Jeevan Jyoti Bima Yojana etc.
Financial Inclusion &
• Reach of institutional banking - number of accounts opened under Jan Dhan Yojana
Skill Development
• Ease of institutional financing for small businesses - disbursement of Mudra loans
• Skill Development shall be tracked through progress in skilling of youth, employment, and the
skilling of vulnerable/marginalized youth under Pradhan Mantri Kaushal Vikas Yojana (PMKVY).
Basic Infrastructure • Housing for all with water, electricity, and road connectivity is the priority of the Government.
201
GOVERNANCE
• Basic Infrastructure shall also be measured through availability of individual household latrines,
drinking water, electricity, and road connectivity.
• Districts are also tracked for the number of internet connected Gram Panchayats, and panchayats
with Common Service Centres.
KEY BENEFITS implementation of central government schemes. This will

• Districts can utilise the data available on various indicators further help the government in identifying weak districts
to improve their performance in each of the identified core for better targeting of government schemes for its citizens.
themes. • This will not only help district authorities in improving
• The purpose of this ranking is to spur a sense of quality of life of citizens but will help in promoting the
competition among dynamic teams in districts including concept of competitive governance among districts on
identification of challenging areas pertaining for each quantifiable parameters.
district.
• This will further help the Central Government in identifying
key challenges for various districts in terms of
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MAINS COMPASS

In essence, MAINS EXAMINATION is more about a combination of

The Mains Compass booklets are designed to meet two objectives:

How to use this book? Economic Political

►DISCRETIONARY POWERS OF THE GOVERNOR 47

►SIGNIFICANCE OF STRONG OPPOSITION IN DEMOCRACY 51

►DUTIES AND ROLE OF PRIME MINISTER 53

►COALITION GOVERNMENT: MERITS AND DEMERITS 54

►OFFICE OF PROFIT: CONCEPT AND ISSUES 55

►PRIVILEGES OF THE PARLIAMENT 56

►BASIC STRUCTURE OF THE CONSTITUTION 11 ►STRENGTHENING OF COMMITTEE SYSTEM IN PARLIAMENT 61

►VALUES IN THE CONSTITUTION 12 ►ANTI-DEFECTION LAW 64

►LAW COMMISSION REPORT ON HATE SPEECH 23

►LAW COMMISSION REPORT ON SEDITION 26

►RESERVATION OF ECONOMICALLY WEAKER SECTION 29

►RIGHT TO PROTEST: A FUNDAMENTAL RIGHT 30

►RIGHT TO PRIVACY & AADHAAR 33

►TRIPLE TALAQ 39 ►COLLEGIUM SYSTEM IN APPOINTMENT OF JUDGES 79

►S.C.TO DECIDE ON MINORITY STATUS OF AMU 43 ►ISSUES RELATED TO UNDERTRIALS IN INDIA 83

►WITNESS PROTECTION SCHEME 86

►NEED OF STRONG JUDICIARY FOR MARKET ECONOMY 88

►CASSATION BENCH OF SUPREME COURT 91

►LAW COMMISSION REPORT ON TRIBUNALS 95

44 ►ARBITRATION COUNCIL OF INDIA 97

►COMMERCIAL COURTS AND DIVISIONS IN HIGH COURTS 97

►EC LAUNCHES APP TO REPORT MALPRACTICE – cVIGIL 143

► ELECTORAL BONDS 144

► EVMS, VVPAT & CHALLENGES 144

►AUTONOMY OF ELECTION COMMISSION OF INDIA 146

►FEDERALISM IN INDIA: RECOMMENDATIONS OF SARKARIA AND ►CONCEPT OF INDEPENDENT CANDIDATES 148

►ABOUT ELECTION MANIFESTO 155

►PROXY VOTING FOR CITIZENS RESIDING OUTSIDE INDIA 156

►WOMEN EMPOWERMENT ISSUES IN PANCHAYATS 129

►SOCIAL AUDIT AND SOCIAL ACCOUNTABILITY 130

►PESA – IMPLEMENTATION ISSUES AND CHALLENGES 132

►RAJASTHAN RELAXED EDUCATIONAL CRITERIA FOR LOCAL

►PUBLIC ACCOUNTS COMMITTEE & CAG 162

►TURF WAR IN CENTRAL BUREAU OF INVESTIGATION 164

►NITI AAYOG “STRATEGY FOR NEW INDIA@75 YEARS” 167

►BENAMI TRANSACTION ACT 188

►THE CRIMINAL LAW (AMENDMENT) ACT, 2018 190

►REAL ESTATE REGULATION IN INDIA 191

170 ►STATE PUBLIC SERVICE COMMISSION: CRITICAL ANALYSIS 193

►DISTRICT ADMINISTRATION: 2ND ARC RECOMMENDATIONS

►POLICE REFORMS 179

►STATUS OF WOMEN IN POLICE 184

►PRESSURE GROUPS & NGOS 185

►CORPORATE GOVERNANCE 186

Syllabus (Polity and Governance)

• Basic features of the constitution

ο Indian Constitution- historical underpinnings, evolution, features,

ο Amendments significant provisions

ο Basic structure of the constitution

ο Comparison of the Indian constitutional scheme with that of other countries

• Executive and Legislative

ο Functions and responsibilities of the Union and the States

ο Structure, organization and functioning of the Executive

ο Ministries and Departments of the Government

ο Structure, organization and functioning of the Judiciary

ο Dispute redressal mechanisms and institutions.

ο Issues and challenges pertaining to the federal structure

ο Devolution of powers and finances up to local levels and challenges therein.

ο Separation of powers between various organs