Block 3

Indira Gandhi
National Open University BLE-001

School of Law
Introduction to the
Indian Legal System
Block
3
INSTITUTIONAL MECHANISMS
UNIT 7
Legislature and Executive 5
UNIT 8
Justice Delivery System 23
UNIT 9
Human Rights Protection Mechanisms 38
Expert Committee
Prof. (Dr.) N.R. Madhava Menon Ms. Vrinda Grover
Member, Commission on Centre-State Director, Multiple Action Research
Relations, New Delhi Group (MARG), New Delhi
Former Director, NLSIU, Bangalore and
National Judicial Academy, Bhopal Ms. Abha Joshi
Lawyer, New Delhi
Prof. B.B. Pande
Former Professor of Criminal Law Dr. Manik Chakrabarty
Law Faculty, University of Delhi Professor, Department of Law
The University of Burdwan, West Bengal
Mr. Babu Mathew Prof. Srikrishna Deva Rao
Country Director Director, School of Law, IGNOU
Action Aid India
New Delhi Prof. K. Elumalai
Professor, School of Law, IGNOU
Prof. S. Siva Kumar
Ms. Gurmeet Kaur
Research Professor
Asst. Prof., School of Law, IGNOU
Indian Law Institute
New Delhi Ms. Suneet Kashyap
Asst. Prof., School of Law, IGNOU
Prof. M. R. K. Prasad
V.M. Salgaocar College of Law Mr. Anand Gupta
Panaji, Goa Asst. Prof., School of Law, IGNOU
Ms. Mansi Sharma
Ms. M Roopa Asst. Prof., School of Law, IGNOU
Independent Scholar, Bangalore
Block Preparation Team

Programme Coordinator : Prof. Srikrishna Deva Rao and Mr. Anand Gupta
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Unit 9 : Dr. Doel Mukherjee
Content Editor : Prof. Parmanand Singh
Language Editor : Malikar Communications
Consultant : Ms. Jaishree Suryanarayanan
Material Production
Mr. Yashpal
Section Officer (Publication)
IGNOU, New Delhi
November, 2009
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BLOCK 3 INSTITUTIONAL MECHANISMS
Mechanisms for power sharing between the different organs of the State are
necessary to ensure that no one organ becomes all powerful. This is called ‘balance
of power’ through a system of ‘checks and balances’. Our Constitution sets out
the institutional arrangement for this power sharing.
We have a federal parliamentary democracy, where power is shared between the

centre and the states. Constitutional institutions, such as, the legislature, executive,
judiciary, local governments, Election Commission, Attorney General and
Comptroller and Auditor General collectively provide the checks and balances
so essential for the success of our democracy.
In this block, we will introduce you to institutions which make, implement and
enforce laws. We have included information on the structure and functioning of
these institutions. These mechanisms need to constantly evolve so that we continue
to progress towards realising our constitutional ideals. Therefore, as you proceed
with this block, you should reflect on the issues that need to be addressed, if we
are to have a system of governance which is people-centric, transparent and
accountable.
The constitutional scheme provides for power-sharing between the three organs
of the State. Law making and implementation are important functions of the
State. The seventh unit introduces you to the legislature and the executive, which
are entrusted with these tasks. We will take you through the law making process.
The executive consists of the political executive and the permanent executive.
How is power distributed between these two on the one hand, and between the
President and the Council of Ministers on the other, to ensure a representative
character for our democracy? How is the supremacy of the legislature asserted?
In this Unit, we will sketch the overall physical structure of the legislature and
the executive and explore such questions in the context of the constitutional
mandate of a federal, sovereign, democracy.
In the eighth unit, we will explain the hierarchy of the formal judiciary and
powers of the higher judiciary, especially the Supreme Court, which enjoys a
pivotal role under our Constitution.
Equal and equitable access to our legal rights remains unrealised. Enabling greater
access to the legal system is a constant concern of the government, law persons
and human rights defenders. It is difficult to approach the formal judicial system
to seek redress for human rights violations. In the ninth unit, we will identify
institutions that are established for protection of human rights. While many of
these institutions are specialised and deal with specific groups, such as, women,
children, minorities and dalits, the National Human Rights Commission (NHRC)
has the mandate of protecting and promoting all human rights. We will explain
the functioning of the NHRC in detail.
Institutional Mechanisms
4
Legislature and Executive
UNIT 7 LEGISLATURE AND EXECUTIVE
Structure
7.1 Introduction
7.2 Objectives
7.3 Federalism
7.4 Legislature
7.4.1 Law Making
7.4.2 Legislative Procedure
7.5 Executive
7.5.1 Political and Permanent Executive
7.5.2 Local Government
7.5.3 Council of Ministers
7.6 Other Constitutional Bodies
7.7 Summary
7.8 Terminal Questions
7.9 Answers and Hints
7.10 References and Suggested Readings
7.1 INTRODUCTION
We, the people of India, have solemnly pledged to build a Sovereign, Socialist
and Secular Republic – where the State will, through our democratically elected
representatives, strive towards ensuring certain basic human freedoms and govern
in such a manner so as to ensure socio-economic justice. How does one ensure
that the actual functioning of the State results in all this? Our State has not
degenerated into a dictatorship. Why? How has the Constitution provided for
checks and balances to ensure that the rule of law prevails for the common good?
One of the constitutional mechanisms is the distribution of power between the
different organs of the State – Executive, Legislature and Judiciary. In this Unit,
we will introduce you to the legislature and the executive. We have confined our
discussion to the union legislature and executive.
We begin this Unit with an explanation about federalism and how power is
distributed between the centre, states and local governments. We then move on
to the structure and functioning of the legislature. Using the example of the
Women’s Reservation Bill, we will take you through the journey of law making.
How is law made – more particularly where does the idea for a particular law
emanate from? What shape does it take once the idea has gathered momentum
and support? What formal procedure does it have to go through before it is taken
up for consideration by the law makers? And in all this – what is the role of the
common person, namely you and me? Does the ordinary Indian citizen have a
role to play in the formation of laws in India?
We have a parliamentary form of Government. The essence of this type of
government is that the Head of the State is a constitutional head and the real
executive powers are exercised by the Council of Ministers, led by the Prime
Minister. The executive is, however, accountable to the legislature.
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Institutional Mechanisms You should remember that these institutions are the constitutionally designed
arrangement for power sharing in our federal democratic republic.
7.2 OBJECTIVES
After reading this unit, you should be able to:
explain the constitutional mechanisms for power sharing at different levels;
describe the process of law making in India; and
explain the powers and functions of the executive.
7.3 FEDERALISM
Federalism is a set-up where the powers are shared between the centre and the
states. In a country as huge as ours, where customs, traditions, faiths, languages,
and climatic conditions vary from village to village, a workable model of
governance must emphasise the unique needs of every regional unit. Therefore,
the Constitution provides for a federal structure where both the centre and the
states exercise legislative and executive powers. The Constitution contains three
lists in the Seventh Schedule which determine the legislative domain of each.
They are:
Union List – consists of subjects on which the parliament can legislate, e.g.,
defence and external affairs.
Union List – consists of subjects of national importance requiring a uniform
policy for the whole country. The parliament alone can legislate on these
subjects, such as, defence, external affairs, banking and communications.
State List – consists of subjects of local importance on which the state
legislature can legislate, such as, police, agriculture and irrigation.
Concurrent List – consists of subjects on which both the parliament and
state legislatures can legislate, such as, education, forest, trade unions and
adoption.
Essential features of our federal polity
No dual citizenship: There is a single citizenship for the whole of India,
unlike a federal country like the U.S.A. where there is dual citizenship –
both of the U.S.A. and of the state that the person is domiciled in. Every
Indian has the same rights of citizenship, irrespective of the state s/he
resides in.
Single Constitution: Unlike the U.S.A. where the states have the right
to make their own constitutions, we have a single Constitution.
The Constitution can become unitary in emergencies: The central
government is empowered to deal with emergencies arising out of war
and other national emergencies.
A single judiciary: The High Courts and Supreme Court form a single
integrated judiciary.
Common all-India services: To maintain uniformity in administration,
we have an all-India services common to the union and the states.
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India is a union of states, which was formed by the accession of many princely Legislature and Executive
states to the Indian union. Given the history of a bloody partition which preceded
the enactment of the Constitution, the makers of our Constitution wanted to
create a strong centre. Certain constitutional provisions ensure this. Hence, in
the event of a conflict between a central and a state law on a subject in the
concurrent list, the former will prevail. Who will make laws on subjects that do
not fall in any of the lists? The union parliament will legislate on all ‘residuary
matters’.
In order to further strengthen our federalism and local self governance, the 73rd
and 74th Amendments to the Constitution have added another list which consists
of subjects on which the local governments – panchayats, municipalities and
municipal corporations – have the power to legislate.
Self-assessment Question
1) List out the essential features of our federal set up.
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7.4 LEGISLATURE
Our Constitution does not provide for strict separation of powers between the
legislature and the executive. The leader of the party/coalition of parties having
the majority in parliament/state legislature becomes the prime minister/chief
minister. The political executive, that is the council of ministers, is made up of
members of the parliament/state legislature. Thus, we have a parliamentary form
of government, where the central and state governments are drawn from and
accountable to the union parliament and state legislatures respectively. Policies
of the government are debated in the legislature and only then become enforceable
as a law. Apart from this very critical role played by the legislature, which provides
the necessary check on exercise of power by the government, law making is the
main function of the legislature.
The legislature and the executive do not function as water-tight compartments.

As you proceed with this Unit, you will learn that there is an overlap of functions,
such as, promulgation of an ordinance by the President/Governor and delegated
legislation or rule making by concerned departments, which are legislative
functions performed by the executive.
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President’s Ordinance-making power (Article 123)
The most important legislative power of the President is his ordinance-making
power. When can it be used? If at any time, when both the Houses are not in
session and the President is satisfied that the circumstances exist which render
it necessary for him to take immediate action, he may issue an Ordinance. It
shall have the same effect as an Act of Parliament.
Such ordinances, however, must be laid before both the Houses of Parliament
and shall cease to operate at the expiry of six weeks from the date of re-
assembly of Parliament, unless a resolution for disapproving it is passed by
both the Houses before the expiration of six weeks.
An Ordinance however, cannot violate the fundamental rights. The validity

of the Ordinance-making power of the President has been challenged in many
cases and the court has upheld its constitutionality in all its decisions. The
power to make Ordinances is justified on the grounds that the President must
be armed with the power to meet with a serious situation when the Houses of
Parliament are not in session. However, there is a possibility of this power
being abused by the Executive.
In D.C. Wadhwa v State of Bihar (1987) 1 SCC 378, the Supreme Court
pointed out that between 1967 and 1981, the Bihar Governor had promulgated
256 Ordinances and all of them were kept alive for periods ranging between
1 and 14 years. The Court called it “colourable exercise of powers” and held
that this amounted to a fraud on the Constitution and thus was unconstitutional.
7.4.1 Law Making

How Does an Idea Become A Bill?
Let us take the example of the Bill providing for women’s reservation in the
legislature (we will refer to it as the Women’s Bill). A Bill is the draft of a
legislative proposal; or, simply put, a Bill is a draft law. Let us now study the
actual process of how an idea becomes a bill and examine the process that turned
it from an “idea” into a Bill. The Women’s Bill is actually a proposed amendment
to the Constitution of India to introduce 33% reservation for women in the
legislature, both at the centre and the states. The demand for this reservation
began several years ago by women’s rights groups in the country. Finally, in
1996, a select committee of parliament headed by Smt. Gita Chatterjee
unanimously finalised the Bill. Since then, it has been introduced several times
in the Lok Sabha, but so far, it has not been voted upon.
Activity
Thanks to good recording of parliamentary debates and their availability
online, it has become simpler to examine the debates that our
parliamentarians have on various subjects. It would be a useful exercise for
you to attempt a simple search for a debate on the issue of women’s
reservation in parliament on the Lok Sabha website (www.loksabha.gov.in).
What does this tell us about the process of how an “idea” can be translated into
“law”? This shows us that the seed of a law is clearly a need that may be felt by
people, which is voiced through public debates, such as, articles in the newspapers
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and other media, or agitated through political groups, rights based groups and Legislature and Executive
peoples’ movements.
Another source from where a law may originate is India’s international
commitments. Whenever India signs an international treaty, it enters into a set of
obligations to either enact certain domestic laws, or to change its domestic laws
to reflect the commitment made in the treaty. Whatever the source, once the
need or the obligation becomes an idea for a law and gains sufficient political
momentum through political will, the people behind it can convert their idea
into an actual Bill, which would then have to go through a formal legislative
process in order to be converted into law.
Who drafts a Bill?

A Bill is drafted by the concerned department, vetted by the ministry of law,
justice and company affairs and introduced in either House through the
ministry of parliamentary affairs.
For a bill to become law, it needs to be put to vote in the parliament. This process
involves bringing the bill to the House, in other words, getting it listed in the list
of business for the House to take up, then taking it up for debate or deliberation
followed by a vote on whether the bill should be passed to become law. A bill
can become law only when it is passed by both houses of parliament and then
signed by the President. Any debate in the parliament is attended by all the
members of that House who are present in that session of the parliament.
Union and State Legislatures

The union parliament comprises of the President, an upper house, called
the Council of States or the Rajya Sabha, and a lower house, called the
House of the People or the Lok Sabha.
The Constitution of India places very basic entry level requirements for
people to become members of the legislature. As per Article 84 of the
Constitution, a citizen of India must have attained the age of 25 years in
order to qualify for a seat in the Lok Sabha, or 30 years for a seat in the
Rajya Sabha. Apart from this, the process of elections is governed by the
Representation of Peoples’ Act, 1950.
The Constitution further provides for a legislature in every State of the Union.
Legislatures in the States may either be bicameral, consisting of two Houses
– Vidhan Sabha (Legislative Assembly) and Vidhan Parishad (Legislative
Council ) or unicameral – consisting of only the Vidhan Sabha. The Vidhan
Sabha is the popular house. Its members are directly chosen by the people.
The normal tenure of this House is 5 years, but the Governor may dissolve
it earlier. The Vidhan Parishad is a permanent body similar to the Rajya
Sabha.
So far, the Women’s Bill has not received a formal debate in either houses of
parliament. It has been introduced four times, but each time it has either been
opposed, or due to lack of political will, it has actually lapsed. However, on 6th
May 2008, the current UPA government was able to introduce the Bill in the
Rajya Sabha, thus ensuring that it remains “alive” even if the Lok Sabha does
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Institutional Mechanisms not pass it. Why did they do that? Read ahead to the heading “How is the life of
a bill linked to the life of the parliament?”
Are there any subject area experts or members of the general public involved
in the legislative process?
Yes, and they are involved through their participation in Parliamentary

Committees. The parliament normally functions through a system of committees,
which are made up of its members, who are elected to these committees. But
why is this done? The reason for this is that the work done by the parliament in
modern times is not only varied and complex in nature, but also voluminous.
And the time at its disposal is limited. Consequently, it is not able to give close
consideration to all the legislative matters that come up before it. Hence, a good
deal of the parliament’s business is transacted in Committees, known as
Parliamentary Committees. A Parliamentary Committee means a Committee
which is appointed or elected by the House or nominated by the Speaker and
which works under the direction of the Speaker and presents its report to the
House or to the Speaker. The Lok Sabha Secretariat provides a Secretariat for
Parliamentary Committees also.
Parliamentary committees are of two kinds: Standing Committees and Ad hoc

Committees. Standing committees are permanent and regular committees which
are constituted from time to time through an Act of Parliament or Rules of
Procedure and Conduct of Business in Lok Sabha. The work of these committees
is of continuous nature. The Financial Committees and departmentally related
Standing Committees come under the category of 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, Railway
Convention Committee, and the Joint Committee on Food Management in
Parliament House Complex.
These are the broad categories into which Parliamentary Committees may be
classified:
a) Financial Committees;
b) Departmentally Related Standing Committees;
c) Other Parliamentary Standing Committees; and
d) Ad hoc Committees.
Typically these parliamentary committees receive advice from several different
sets of people. Because the membership of these committees is restricted to the
sitting members of parliament, they find that they need technical advice and
inputs from subject area experts from time to time. To facilitate this, these
committees are empowered to appoint subject area experts as advisors for the
task at hand. The appointment of these advisors is rather ad hoc, and as a result
it is difficult to find any documentation on this. Very often, the person appointed
as the advisor to the committee may have a team of experts working behind the
scenes, to recommend the correct course of action to the parliamentary committee.
10
It is through this involvement of subject area experts in the working of committees Legislature and Executive
that technical institutions, NGOs and special interest pressure groups are able to
participate in law making, in a meaningful manner, often with very positive
direct results.
Is the life of a Bill linked to the life of the Parliament? How?
Coming back to our example of the Women’s Reservation Bill, we know that it
was first introduced in Parliament before the 11th Lok Sabha. At that point, it was
referred to a Joint Parliamentary Committee chaired by the late Mrs. Geeta
Mukherjee, of the Communist Party of India (Marxist). The committee presented
its final report to the parliament on 9th December 1996. But due to the dissolution
of the 11th Lok Sabha, the Women’s Bill lapsed.
It was again introduced in the 12th Lok Sabha. Once again, due to lack of political
will to deliberate and vote upon the bill, it lapsed when the 12th Lok Sabha was
dissolved. During the 13th Lok Sabha, the Women’s Bill was introduced yet again,
and brought to the House four times between 1999 and 2004. But once again it
lapsed when the Lok Sabha was dissolved.
So, you can see how the life of a Bill is intricately linked to the life of the Lok
Sabha during which it is introduced. This is because the Constitution, in the
chapter on Legislative Procedure, under Article 107 stipulates that a bill needs to
be passed by both houses of parliament, before it is deemed to have been “passed”.
Article 107 also stipulates that a bill which is pending in the lower house of the
parliament (the House of the People) lapses upon the dissolution of the Lok
Sabha. And that is exactly what happened in the case of the Women’s Bill through
the 11th to 13th Lok Sabhas.
On the other hand, Article 107 also makes it clear that a Bill which is introduced
in the Rajya Sabha will not lapse on the dissolution of the Lok Sabha. And it is
precisely because of this reason that the UPA government introduced the Women’s
Reservation Bill in the Rajya Sabha on 6th May 2008, as part of its promises
under the Common Minimum Program.
Another thing we need to keep in mind is that the parliament works in sessions.
The concept of a parliament session relates to the three sessions held every year,
with a gap of not more than six months between the end date of one session and
the start date of the other. This maximum time gap requirement between two
consecutive sessions is contained in Article 85(1) of the Constitution of India.
Between two sessions, the Lok Sabha is prorogued, as per the requirements of
Article 85(2) of the Constitution.
The other concept that appears from the above discussion about the life of the
Women’s Reservation Bill is that after each general election, a new Lok Sabha is
constituted, following the dissolution of the earlier Lok Sabha. The dissolution
of a particular Lok Sabha entails the dismissal of all members of that particular
Lok Sabha and fresh appointment of the new set of members who are elected in
the latest parliamentary elections.
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Self-assessment Questions
2) How does a ‘Bill’ originate?
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3) What is a Parliamentary Committee?
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7.4.2 Legislative Procedure

In the section above, we saw how an idea can turn into the draft of a new law,
and also saw who are the actors involved in carrying that idea through its life-
span – from the time it gets drafted on paper as a Bill, to introducing it in
Parliament and then deliberating and voting on it. Now, let us look at the complete
procedure of how a Bill becomes an Act.
The legislative process starts with the introduction of a Bill in either House of
Parliament – Lok Sabha or Rajya Sabha. A Bill can be introduced either by a
Minister of the current government, or by a private member. In the former case it
is known as a Government Bill and in the latter case it is known as a Private
Member’s Bill.
It is necessary for a member-in-charge of the Bill to ask for leave to introduce
the Bill. If leave is granted by the House, the Bill is introduced. This stage is
known as the first reading. If the motion for leave to introduce a Bill is opposed,
the Speaker has the discretion to allow a brief explanatory statement to be made
by the member who opposes the motion and the member-in-charge who moved
the motion. Where a motion for leave to introduce a Bill is opposed on the ground
that the Bill initiates legislation outside the legislative competence of the House,
the Speaker may permit a full discussion on that topic, followed by a vote.
After a Bill has been introduced, the Presiding Officer of the Lok Sabha or Rajya
Sabha (wherever the Bill has been introduced) can refer the Bill to a Standing
Committee for examination. If a Bill is referred to a Standing Committee, the
Committee considers the general principles and clauses of the Bill and submits a
report. The Committee can also take the opinion of subject area experts or the
opinion of the public (that is, from the group of people who are interested in that
legislative action). The report of the Committee is of persuasive value, and is
treated as considered advice given by the Committee.
After the Committee has submitted its Report, the Bill is put through the second
reading. The second reading consists of consideration of the Bill in two stages.
The first stage consists of a general discussion on the Bill as a whole. Here, the
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principle underlying the Bill is discussed. At this stage it is once again open to Legislature and Executive
the House to refer the Bill to a Select Committee of the House, or a Joint
Committee of the two Houses, or to circulate it for the purpose of eliciting opinion,
or to straightaway take it into consideration.
If a Bill is referred to a Select or a Joint Committee, the Committee considers the

Bill clause-by-clause just as the House does. Amendments can be moved to the
various clauses by members of the Committee. The Committee can also take the
advice of associations, public bodies or experts who are interested in that
enactment. After the Bill has been considered by the Committee, it submits its
report to the House which considers the Bill again, as reported by the Committee.
If a Bill is circulated for the purpose of eliciting public opinion on it, such opinions
are obtained through the Governments of the States and Union Territories.
Opinions received on the Bill are laid on the Table of the House.
The second stage of the second reading consists of clause-by-clause consideration

of the Bill by the House, as introduced or as reported by the Select or Joint
Committee. A discussion takes place in the House on each clause of the Bill and
amendments to these clauses can be moved at this stage. Amendments to a clause,
which have been moved and not withdrawn, are put to the vote of the House
before the relevant clause is disposed of by the House. The amendments become
a part of the Bill if they are accepted by a majority of members present and
voting. After all the clauses are voted upon, and the Schedules, the Enacting
Formula and the Long Title of the Bill have all been adopted by the House, the
Second Reading is deemed to be over.
Once all the steps above have been taken, the member-in-charge can move that
the Bill to be passed. This stage is known as the third reading of the Bill. At this
stage the debate in the House is confined to arguments either in support of or
rejection of the Bill, without referring to the details of the Bill. Only formal or
verbal amendments are allowed to be moved at this stage. In passing an ordinary
Bill, a simple majority of members present and voting is necessary. But in the
case of a Bill to amend the Constitution, a majority of the total membership of
the House and a majority of not less than two-thirds of the members present and
voting is required in each House of Parliament.
After the Bill is passed by one House, it is sent to the other House for consideration
and approval, and there also it goes through the stages as described above, except
the introduction stage.
The provisions regarding the passing of a bill is the same in the case of the state
legislature, except that the Governor may hold a Bill for the President’s
consideration under Art 201. When a Bill is so reserved by the Governor, the
President may take one of three courses:
he assents to the Bill;
he withholds his assent to the Bill; or
he may, where the Bill is not a Money Bill, direct the Governor to return the
Bill to the Houses of the State Legislature together with his suggestions. It
shall be the duty of the Legislature to consider the Bill within a period of six
months. Should it be passed again by both the Houses, it shall be presented
to the President for his consideration.
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Institutional Mechanisms You will recollect that we spoke about certain constitutional provisions which
render our system more unitary than federal. This is one such provision, which
undermines the legislative autonomy of the state legislature.
Money bill
Bills which exclusively contain provisions for imposition and abolition of taxes,
for appropriation of moneys out of the Consolidated Fund etc. are called Money
Bills. Money Bills can be introduced only in the Lok Sabha. The Rajya Sabha
cannot make amendments in a Money Bill which is passed by the Lok Sabha and
transmitted to it. It can, however, recommend amendments in a Money Bill, but
must return all Money Bills to the Lok Sabha within fourteen days from the date
of their receipt. It is open to the Lok Sabha to accept or reject any or all of the
recommendations of the Rajya Sabha with regard to a Money Bill. If the Lok
Sabha accepts any of the recommendations of the Rajya Sabha, the Money Bill
is deemed to have been passed by both Houses with amendments recommended
by the Rajya Sabha and accepted by the Lok Sabha. If the Lok Sabha does not
accept any of the recommendations of the Rajya Sabha, the Money Bill is deemed
to have been passed by both Houses in the form in which it was passed by the
Lok Sabha. If a Money Bill which has been passed by the Lok Sabha and then
transmitted to the Rajya Sabha for its recommendations, is not returned to the
Lok Sabha within the fourteen day period, it is deemed to have been passed by
both Houses at the expiration of this period, in the form in which it was passed
by the Lok Sabha.
Delegated legislation
Once a law is made, does it come into force immediately? The Act will itself
provide for the event which will bring the Act into force. It could be by:
– notification in the official gazette;
– appointing a date in the Rules.
Rule making is part of ‘delegated legislation’, which the executive is entrusted
with. We have seen how law is made by the legislature. The concerned department
which originally drafts the bill comes back into the picture once the bill becomes
an Act. An Act lays down only the broad framework to give effect to a particular
policy. The details of implementation, such as, setting up of enforcement
mechanisms and required infrastructure and details for their functioning are
worked out by the concerned department through the process of rule making.
Legislature continues to exercise supervision, though, as the rules have to be
laid before both Houses. Each House has a committee on sub-ordinate legislation
which scrutinises the rules.
4) What is the difference between “prorogation” and “dissolution” of the
Lok Sabha?
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Legislature and Executive
7.5 EXECUTIVE
The executive power is vested in the President but s/he exercises this power
with the aid and advice of the Council of Ministers. Although, ‘executive power’
has not been defined anywhere in the Constitution, it connotes the residue of
governmental functions that remain after the legislative and judicial functions
are taken away. The executive power of the Union extends to all matters with
respect to which Parliament has the power to make laws and includes the rights,
authority and jurisdiction as are exercisable by the Government of India by virtue
of any treaty or agreement. But the executive power of the Union does not extend
to a matter in the Concurrent List unless:
it is expressly provided in the Constitution, or
expressly entrusted by a law made by Parliament.
The President
The President’s term of office is five years from the date on which s/he enters
upon office, but s/he is eligible for re-election. The President cannot be a
member of either House of Parliament or of a House of the Legislature of
any State. The President is elected by indirect election, i.e. by an electoral
college consisting of
the elected members of both Houses of Parliament; and
the elected members of the Legislative Assemblies of the States.
7.5.1 Political and Permanent Executive

The Executive can be divided into two: the political executive that is elected by
the people for a definite term; and the permanent executive, members of which
are not affiliated to the political process and function independently of the elected
government. The permanent executive, also known as civil services, comprises
of civil servants. Civil servants remain in office even when the ruling party
changes. These officers work under the political executive and assist it in carrying
out the day-to-day administration.
The permanent executive is also referred to as the ‘Public Administration System’

or the Indian Civil Services. The Indian civil service took more concrete shape
when the British felt that there was a need for strenghtening and streamlining
British administration in India. Although it began as a purely regulatory institution,
its role assumed developmental objectives along the way. The civil service system
is often equated with the backbone of the administrative machinery of the country.
The system has undergone a structural overhaul post-Independence. At the central
level, the civil services include the all India services, such as, the Indian
Administrative Service, the Indian Forest Service, the Indian Police Service, the
Indian Income Tax Service and the Indian Railway Services. There are three
tiers of administration – Union Government, State Governments and the Local
governments. The State Governments have their own set of services.
15
Institutional Mechanisms Administrative structure of the Government of India
President
Vice President
Prime Minister
Council of Ministers
Secretary
Additional Secretary
Joint Secretary
Administrative structure of the State Governments
Governor
Chief Minister
Council of Ministers
Secretary
Joint Secretary
16
District Administration Legislature and Executive
(District is a unit of administration, on an average a district has a
population of about 2 million)
District Collector
Regulatory Administration
Development Administration
Local self governance
Law and order
Land administration
Tax collection
Coordination
Figure 7.1: Flow chart depicting the basic structure of the executive at union, state and
district levels
7.5.2 Local Government

The Indian Constitution facilitates local self-governance by prescribing it under
the State List. In the case of Union Territories, the Union Parliament provides
for local government bodies. The 73rd and 74th Constitution Amendment Acts
gave federal recognition to local self-government. While the Constitution provides
for local self-government as a method of efficient, democratic self-government,
State Governments often twist the arm of these bodies and usurp power to
themselves, as a result of which local governments and state governments are
growingly perceived as rivals of sorts. West Bengal has a local self-governance
model different from other states and has distinguished itself by regularising
local elections since the current ruling party took over the affairs. This model in
fact served as an inspiration for the constitutional amendment.
Urban
In the urban local self-governance model, the big cities have City Corporations,
other cities have City Municipal Committees and towns have Town Municipal
Committees. These are elected bodies and the administration is carried out by a
single Chief Executive who is answerable to the elected bodies for maintenance
17
Institutional Mechanisms of civic amenities for the benefit of the citizens. The local tax collected is the
major source of revenue, other than funds received from the State.
Big Cities City Corporations
Other Cities City Municipal Committees
Towns Town Municipal Committees
Rural
The rural local self-government model differs in the sense that it has a deeper
hierarchy as explained below. They perform functions, such as, provision of
civic amenities and carry out developmental works, for which they are empowered
to collect taxes.
District Zila Parishad
Block Block/Mandal Panchayat
Village or Group of Villages Gram Panchayat
7.5.2 Council of Ministers

The Prime Minister is the most important political institution in the country. Yet
there is no direct election to the post of Prime Minister. The President appoints
the Prime Minister.1 This does not mean that the President appoints anyone s/he
likes as the Prime Minister. The President appoints the leader of the majority
party or the coalition of parties that commands a majority in the Lok Sabha, as
Prime Minister. In case no single party or alliance gets a majority, the President
appoints the person most likely to secure a majority support.
After the appointment of the Prime Minister, the President appoints other ministers
on the advice of the Prime Minister.2 The Ministers are usually from the party or
the coalition that has the majority in the Lok Sabha. The Prime Minister is free to
choose ministers, as long as they are members of Parliament. Sometimes, a person
who is not a member of Parliament can also become a minister. But such a
person has to get elected to one of the Houses of the Parliament within six months
of appointment as minister. The Constitution does not say very much about the
powers of the Prime Minister or the ministers or their relationship with each
other. But as head of the government, the Prime Minister has wide-ranging powers.
The Prime Minister allocates work to the ministers, coordinates the work of
different ministries and exercises general supervision. When the Prime Minister
quits, the entire ministry quits. Thus, if the Cabinet is the most powerful institution
in India, within the Cabinet it is the Prime Minister. The Prime Minister does not
have a fixed tenure. S/he continues in power so long as s/he remains the leader
of the majority party or coalition.
The powers of the Prime Minister in all parliamentary democracies of the world
have increased so much in recent decades that parliamentary democracies are
sometimes seen as a Prime Ministerial form of government. The media also
contributes to this trend by making politics and elections a competition between
top leaders of parties.
1
Article 74 (1) of the Constitution of India.
2
Article 75 (1) of the Constitution of India.
18
In India too we have seen such a tendency towards the concentration of powers Legislature and Executive
in the hands of the Prime Minister Jawaharlal Nehru, the first Prime Minister of
India, exercised enormous authority because he had great influence over the
public. Indira Gandhi was also a very powerful leader compared to her colleagues
in the Cabinet. Of course, the extent of power wielded by a Prime Minister also
depends on the personality of the person holding that position. However, in recent
years the rise of coalition politics has imposed certain constraints on the power
of the Prime Minister. The Prime Minister of a coalition government cannot take
decisions as s/he likes. S/he has to accommodate different groups and factions in
her/his party as well as among alliance partners. S/he also has to heed the views
and positions of the other parties on whose support the survival of the government
depends.
Council of Ministers is the official name for the body that includes all the
Ministers.
Cabinet Ministers are usually top-level leaders of the ruling party or parties
who are in charge of the major ministries. Usually the Cabinet Ministers
meet to take decisions in the name of the Council of Ministers. Cabinet is
thus the inner ring of the Council of Ministers. It comprises about 20
ministers.
Ministers of State with independent charge are usually in charge of smaller
Ministries. They participate in the Cabinet meetings only when specially
invited.
Ministers of State are attached to and required to assist Cabinet Ministers.
Since it is not practical for all ministers to meet regularly and discuss everything,
the decisions are taken in Cabinet meetings. That is why parliamentary democracy
in most countries is often known as the Cabinet form of government. The Cabinet
works as a team. The ministers may have different views and opinions, but
everyone has to own up to every decision of the Cabinet.
5) What is the composition of the executive in our country?
..............................................................................................................
..............................................................................................................
..............................................................................................................
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..............................................................................................................
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7.6 OTHER CONSTITUTIONAL BODIES

Continuing with the theme of ‘checks and balances’, we will now look at some
of the constitutional bodies which have been provided to check abuse of power
and to ensure that no one organ of the government becomes all powerful. You
19
Institutional Mechanisms will recollect from your understanding of the concept of rule of law as to how
critical the constitutional scheme of checks and balances is to prevent arbitrariness.
Our Constitution provides for certain independent bodies with specific functions.
They are:
Attorney-General for India (AG) – the Attorney-general is the first law officer
of the country. She/he is appointed by the President and holds office during
the pleasure of the President. She/he advises the central government on
legal matters and can participate in parliamentary proceedings, without the
right to vote.
Comptroller and Auditor-General of India (CAG) – the CAG audits the
accounts of the Union and the states. The audit report is placed before the
union parliament or state legislature, as the case may be. The CAG’s term is
fixed at 6 years or up to the age of 65 years. The CAG guides the Public
Accounts Committee of the parliament.
Public Service Commissions – the Constitution provides for these
commissions for the union and the states. So we have the Union Public
Service Commission (UPSC) and various State Public Service Commissions.
Election Commission – we have an independent Election Commission for
the conduct of elections to parliament, state legislature, offices of president
and vice-president.
7.7 SUMMARY
Let us now sum up this unit:
Federalism is a set-up where the powers are shared between the centre and
the states. In a country as huge as ours, where customs, traditions, faiths,
languages, and climatic conditions vary from village to village, a workable
model of governance must emphasise the unique needs of every regional
unit. Therefore, the Constitution provides for a federal structure where both
the centre and the states exercise legislative and executive powers. The
Constitution contains three lists in the Seventh Schedule which determine
the legislative domain of each.
In order to further strengthen our federalism and local self governance, the
73rd and 74th amendments to the Constitution have added another list which
consists of subjects on which the local governments – panchayats,
municipalities and municipal corporations – have the power to legislate.
Our Constitution does not provide for strict separation of powers between
the legislature and the executive. The leader of the party/coalition of parties
having the majority in parliament/state legislature becomes the prime
minister/chief minister. The political executive, that is the council of
ministers, is made up of members of the parliament/state legislature. Policies
of the government are debated in the legislature and only then become
enforceable as a law. Apart from this very critical role played by the
legislature, which provides the necessary check on exercise of power by the
government, law making is the main function of the legislature.
Parliamentary committees receive advice from several different sets of

people. To facilitate this, these committees are empowered to appoint subject
20
area experts as advisors for the task at hand. It is through this involvement Legislature and Executive
of subject area experts that technical institutions, NGOs and special interest
pressure groups are able to participate in law making, in a meaningful manner,
often with very positive direct results.
The Executive can be divided into two: the political executive that is elected
by the people for a definite term; and the permanent executive, members of
which are not affiliated to the political process and function independently
of the elected government. The permanent executive, also known as civil
services, comprises of civil servants. Civil servants remain in office even
when the ruling party changes. These officers work under the political
executive and assist it in carrying out the day-to-day administration.
Constitutional bodies like the Attorney General, Comptroller and Auditor

General and Election Commission play a critical role in our democracy.
7.8 TERMINAL QUESTIONS

1) Explain the system of local self governance in India, with emphasis on areas
that need reform.
2) ‘A system of constitutional checks and balances is essential for rule of law.’
Identify some such mechanisms under our Constitution.
7.9 ANSWERS AND HINTS

1) The Constitution contains three lists in the Seventh Schedule which determine
the legislative domain of the centre and the states. the 73rd and 74 th
amendments to the Constitution have added another list which consists of
subjects on which the local governments have the power to legislate. Though
our Constitution provides for a federal structure, where both the centre and
the states exercise legislative and executive powers, there are some features
peculiar to our federal polity. There is a single citizenship for the whole of
India, unlike a federal country like the U.S.A. where there is dual citizenship.
Every Indian has the same rights of citizenship, irrespective of the state s/he
resides in. We have a single Constitution. The High Courts and Supreme
Court form a single integrated judiciary. To maintain uniformity in
administration, we have an all-India services common to the union and the
states. The central government is empowered to deal with emergencies arising
out of war and other national emergencies.
2) A Bill is the draft of a legislative proposal. The seed of a law is a need that
may be felt by people, which is voiced through public debates, such as,
articles in the newspapers and other media, or agitated through political
groups, rights-based groups and peoples’ movements. A law may also
originate from India’s international commitments. Whenever India signs an
international treaty, it enters into a set of obligations to either enact certain
domestic laws, or to change its domestic laws to reflect the commitment
made in the treaty.
21
Institutional Mechanisms 3) A parliamentary committee means a committee that is appointed or elected
by the House or nominated by the Speaker and which works under the
direction of the Speaker.
4) When the Lok Sabha is merely adjourned till the next session, it is said to
have been prorogued. When the Lok Sabha members are all removed from
office on completion of their term in order to make way for a new set of
elected members to take office, the Lok Sabha is said to have been dissolved.
5) The executive is of two kinds – political and permanent. The political

executive is made up of the President/Governor and the Council of Ministers
headed by the Prime Minister/Chief Minister at the union/state level
respectively, and the elected representatives of Panchayats. The permanent
executive consists of the bureaucracy at all levels, including the police. The
executive power, which is co-terminus with legislative power of the union
and the states, is exercised by the President/Governor on the aid and advice
of the council of ministers.
Terminal Questions
1) Refer to Section 8.5. Also see the concerned reports of the Administrative
Reforms Commission.
2) Refer to Sections 8.5, 8.6 and 8.7.
7.10 REFERENCES AND SUGGESTED READINGS

Mahendra P. Singh ed, V.N. Shukla’s Constitution of India (Lucknow: Eastern
Book Company, 11th ed. 2008).
H.M. Seervai, Constitutional Law of India (New Delhi: Universal, 4th ed. 2005).
Granville Austin, Working a Democratic Constitution: The Indian Experience

(New Delhi: Oxford University Press, 1999).
Web Resources
http://parliamentofindia.nic.in
http://arc.gov.in
22
Justice Delivery System
UNIT 8 JUSTICE DELIVERY SYSTEM
Structure
8.1 Introduction
8.2 Objectives
8.3 Our Judicial Set Up
8.4 Subordinate Courts
8.5 High Courts
8.6 Supreme Court
8.6.1 Appointment of Judges of Supreme Court
8.6.2 Jursidiction of Supreme Court
8.7 Tribunals
8.7.1 Constitutional Provisions
8.7.2 Administrative Tribunal
8.8 Summary
8.1 INTRODUCTION
In the previous unit, we introduced you to the law making and law enforcement
functions performed by the legislature and the executive respectively. The third
organ, the judiciary, occupies a pivotal role under our Constitution. In recognition
of the importance of an independent judiciary in upholding our constitutional
values and the rule of law, several constitutional provisions guarantee the
independence of our judiciary in matters, such as, appointment, conditions of
service and dismissal.
We all know that courts decide disputes of all nature between two or more parties.
Courts interpret and uphold the law. The Constitution has entrusted certain powers
on the Supreme Court which are imperative under our federal set up. We know
that the Constitution itself provides for division of power between the centre
and the states in the form of the three lists discussed in the previous unit. There
are bound to be disputes on the extent of power enjoyed by the centre and the
constituent states. The Constitution has entrusted the highest court with the power
to decide disputes between the centre and the states and between the states inter
se.
You will recollect that the right to approach the Supreme Court for enforcement
of our fundamental rights is itself a fundamental right. This makes the role of the
Supreme Court very crucial in our constitutional scheme as the guarantor of
fundamental rights. The High Courts also enjoy this power concurrently. The
higher judiciary, thus, plays a pivotal role in checking and correcting arbitrariness
on the part of the legislature and executive authorities.
23
Institutional Mechanisms In this unit, we will take you through the hierarchy and structure of our judicial
system and the powers vested in courts at different levels. As you proceed with
this unit, you should reflect on issues that erode the credibility of the judiciary,
such as, appointment of judges, accountability and systemic constraints to access
to justice. In the next block, we will discuss some innovations and experiments
that have been carried out to improve every citizen’s access to justice.
8.2 OBJECTIVES
After studying this unit, you should be able to:
describe the structure and hierarchy of the judiciary;
explain the jurisdiction and powers of each of the courts; and
explain the process of tribunalisation.
9.3 OUR JUDICIAL SET UP

Our constitution provides for establishment of a Supreme Court and High Courts
at the state level. The courts in India are arranged in a three tier structure. The
Supreme Court is the highest court in this hierarchy. A High Court is the highest
court in a state. The third tier is occupied by courts at the trial level, referred to as
the subordinate judiciary. These courts have been established as per the laws of
civil and criminal procedure — the Code of Civil Procedure, 1908 and the Code
of Criminal Procedure, 1973. These procedural laws provide the mechanism for
adjudication of civil and criminal cases, wherein, a hierarchy of subordinate
courts have been created.
Supreme Court
Highest Court of Appeal in all matters
May hear writ matters directly
High Courts
Hear appeals from lower courts
Limited original jurisdiction
Sessions Courts
District Courts (Criminal Matters)
(Civil Matters)
Figure 8.1: Our judicial system
8.4 SUBORDINATE COURTS

Articles 233 to 237 provide for the establishment of subordinate courts in every
state. Each state is divided into judicial districts presided over by a ‘District and
24
Sessions Judge’. S/he is known as a ‘District Judge’ when presiding over a civil Justice Delivery System
case, and a ‘Sessions Judge’ when presiding over a criminal case. The District
Judge is the highest judicial authority in a district.1 . Below the court of District
Judge, there are different subordinate courts for civil and criminal matters which
had different names in each state, till the Supreme Court sought to bring about
uniformity. 2
On the civil side, below the Court of District Judge/Additional District Judge
are the Courts of Civil Judge (Senior Division) and Civil Judge (Junior Division).
The jurisdiction of a civil court is determined on the basis of subject matter,
location of the subject matter/defendant’s place of residence and monetary limit 3 .
On the criminal side, the Court of Sessions at the top of the hierarchy, can pass
any sentence authorised by law, but a sentence of death passed by it is subject to
confirmation by the High Court. The Courts of Chief Judicial Magistrate or Chief
Metropolitan Magistrate (in metropolitan areas)4 stand below the Sessions Court,
and deal with offences that are punishable with up to seven years’ imprisonment.
Then come the courts of Judicial Magistrates of the First Class or Metropolitan
Magistrates (in metropolitan areas) and Judicial Magistrates of Second Class.
The former deal with offences that are punishable with up to three years’
imprisonment and the latter can pass a sentence of up to one year.5
The Code of Criminal Procedure, 1973 provides for another class of magistrates
- the Executive Magistrate. This class of magistrates, as the name suggests, are a
part of the executive branch and perform administrative and quasi-judicial
functions. An Executive Magistrate cannot try cases and pass verdicts, although
s/he has the authority to order the dispersal of an unlawful assembly and decide
on the manner and measure of force to be used. For example, s/he can advise the
police whether to use tear gas or baton charge or blank fire or firing. Also, if a
person is arrested on the orders of a court outside the local jurisdiction, such a
person should be produced before the Executive Magistrate. The Executive
Magistrate can, in such a case, decide on the bail amount, depending on the
terms of the warrant.
There are, in each Revenue District (as opposed to a Sessions District) the
following kinds of Executive Magistrates:
one District Magistrate (DM)
one or more Additional District Magistrates (ADM)
one or more Sub-divisional District Magistrates (SDM)
Executive Magistrates.
All the Executive Magistrates of the district, except the ADM, are under the
control of the DM.
1
The term ‘District Judge’ is defined in Article 236 of the Constitution and includes Additional/
Joint/Assistant District Judge and Sessions/Additional Sessions/ Assistant Sessions Judge.
2
All India Judges Association v Union of India (1992) 1 SCC 119; Also see All India Judges
Association v Union of India (II) and (III) (1993) 4 SCC 288; (2000) 1 SCALE 136; (2002)
3 SCALE 291.
3
Also see Unit 1 Block 1 Course 2 (Law of Civil Procedure) for a detailed discussion on the
jurisdiction of civil courts.
4
A town whose population exceeds one million can be declared to be a ‘metropolitan area’ by
the concerned state government.
5
Also see Unit 6 Block 2 Course 2 (Courts) for a discussion on the jurisdiction of criminal
courts. 25
Institutional Mechanisms These magistracies are normally conferred on the officers of the Revenue
Department, although, an officer can be appointed exclusively as an Executive
Magistrate. Normally, the Collector of the district is appointed as the DM.
Similarly, the Sub-Collectors are appointed as the SDMs. Tahsildars and Deputy/
Additional Tahsildars are appointed as Executive Magistrates. Under the old
CrPC, there was no distinction between the Executive and Judicial Magistrates;
some states still follow the old CrPC, e.g. in Nagaland, the Collector is also the
head of the judicial branch of the district and can pass sentences, including capital
punishment under the Indian Penal Code.
CRIMINAL CIVIL
Sessions Judge/Additional District Judge/Additional

Session Judge District Judge
Chief Judicial Magistrate/

Chief Metropolitan Magistrate Civil Judge (Senior Division)
Judicial Magistrate First Class/

Metropolitan Magistrate
Civil Judge (Junior Division)
Judicial Magistrate
Second Class
Figure 8.2: Subordinate judiciary: civil and criminal
Appointment of Judges
Article 233 provides that the appointment of district judges shall be made by the
Governor of the state in consultation with the High Court. A person not already
in the service of the Union or of the state shall be eligible to be appointed as a
district judge only if s/he has been, for not less than seven years, an advocate or
a pleader, and is recommended by the High Court for appointment. Thus, the
consultation is mandatory. The idea behind such consultation is that the High
Court is better placed to be familiar with the efficiency and the quality of persons
who are fit to be appointed to the position of a District Judge.
Are the views expressed by the High Court binding on the Governor? The
Supreme Court has answered this in the affirmative and held on more than one
occasion that appointments of subordinate judges were unconstitutional and
invalid for want of effective consultation with the High Court 6 .
The Governor appoints other persons to the state judicial services, after consulting
the State Public Service Commission and the High Court concerned. Here the
consultation with the High Court is different from the consultation with the Public
6
Chandra Mohan v State of Uttar Pradesh AIR 1966 SC 1987; M.M Gupta v State of J&K
26 (1982) 3 SCC 412.
Service Commission. The Supreme Court has made it clear that the consultation Justice Delivery System
with the High Court is necessary to maintain the independence of the Judiciary.
This provision of consultation has a place of primacy and thus consultation merely
with the Public Service Commission is not sufficient. 7
The disciplinary control over all the subordinate courts in the state rests with the
High Court under Article 235. The High Court has exclusive power to enquire
into the conduct of a member of the subordinate judiciary. It decides on:
the transfer of judges of district courts;
promotion of other members of the judiciary inferior to that of the district
court;
premature or compulsory retirement of judges of district and subordinate
courts.
The State Government thus cannot decide on the transfer of the district judge,
even if it has the power to appoint, promote or post such a judge. Transfer is
completely under the control of the High Court. It should be noted here that
these are disciplinary powers and thus the High Court has no say in matters of
removal, dismissal, reduction of the rank or termination of services of a judicial
officer. Thus, it may make recommendations in such matters but cannot itself
pass an order.
The administrative control over these courts rests in the hands of the State
Government under Article 237 and the High Court has no say in administrative
control over the district and subordinate judges.
1) Name the highest court in the subordinate judiciary on the civil and
criminal side.
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2) How has our Constitution provided for separation of the judiciary from
the executive at the subordinate level?
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7
A.C. Thalwal v High Court of Himachal Pradesh (2000) 7 SCC 1.
27
8.5 HIGH COURTS
High Courts stand at the head of the judicial system at the state level. Article 214
of the Constitution provides for a High Court in each state. However, the
Parliament can establish, by law, a High Court for two or more states or for a
state and a Union Territory. For example, Punjab and Haryana share a common
High Court.
Every High Court consists of a Chief Justice and such other judges as the President
may from time to time appoint. Thus, there is no fixed maximum number of
judges for a High Court. Under Article 217, the President appoints the Chief
Justice of a High Court after consulting the Chief Justice of India and the Governor
of the state concerned. While appointing other judges, the President may consult
the Chief Justice of the concerned High Court.
Who can become a judge of a High Court?

Any person who is
a citizen of India,
has held a judicial office for at least ten years in the territory of India,
has been an advocate of a High Court for at least ten years.
A judge of the High Court shall hold office until he attains the age of sixty-two
years. A judge may be removed from office by the President only by impeachment.
In the landmark case C. Ravi Chandran Iyer v Justice A.M Bhattacharjee (1995)
2 SCC 428, the Supreme Court has held that only the Chief Justice of India is
considered the prime mover for taking action against an erring High Court Judge
or a Chief Justice of a High Court whose bad conduct falls short of punishment
by impeachment. This in-house procedure to discipline the erring judge can indeed
be expected to fill the gap created through the failed impeachment of Justice V.
Ramaswami.
Article 220 prohibits a person who has held office as a permanent Judge of a
High Court from acting or pleading in any court or before any authority in India,
except the Supreme Court and the other High Courts. This prohibition is necessary
in order to maintain the independence of the Judiciary.
Powers of the High Court
Article 215 declares that every High Court shall be a court of record and shall
have all the powers of such a court, including the power to punish for its contempt.
The scope and nature of this Article is similar to the powers of the Supreme
Court under Article 129, which will be discussed in the following section.
Every High Court, under Article 227, has the power of superintendence over all
the courts and tribunals throughout the territory within which it has jurisdiction.
Thus, the High Courts can make general rules for the lower courts, decide on the
manner they should function in, prescribe the forms in which such courts should
maintain their books, records, accounts, and settle the fees of the sheriffs, clerks
advocates and pleaders. This power of superintendence is not limited to just
administrative matters but extends to judicial matters as well. The power of
superintendence given to the High Courts should be used carefully and in
28
appropriate cases, and not just to correct minor errors of fact. The common grounds Justice Delivery System
on which the High Courts generally interfere with the inferior courts are:
when the inferior courts act arbitrarily, or
act in excess of jurisdiction vested in them, or
fail to exercise the jurisdiction vested in them, or
act in violation of principles of natural justice, or
there is an error of law apparent on the face of the record.
As mentioned earlier, the High Courts have disciplinary jurisdiction over the
subordinate courts. Under this jurisdiction, the High Courts decide on the postings,
transfers and promotions of the persons in the subordinate courts.
3) What are the powers of a High Court under its supervisory and
disciplinary jurisdictions?
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...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
8.6 SUPREME COURT

Article 124 (1) establishes the Supreme Court of India. At present the Supreme
Court comprises the Chief Justice and 25 justices of the court. It is the ultimate
court of appeal in civil and criminal matters. The Supreme Court is a court of
record; which means that its records have evidentiary value and cannot be
questioned by any court. The court has all the powers including the powers to
punish for its contempt under Article 129. The Contempt Court Act 1971, defines
the powers of courts for punishing for the contempt of courts, and regulates their
procedure. The Act provides that judges too can be tried for contempt of court.
The objective for vesting such a power in the court is to uphold the majesty of
law. Courts are the guardians of the Rule of Law, which is the foundation of
democracy. Thus, the courts should have the power to punish those who hold it
in contempt.
Article 130 states that the Supreme Court will be located in Delhi or at such
other place that the Chief Justice of India (CJI) may appoint from time to time.
However, such an appointment may only be done with the approval of the
President. It is an unfortunate reality, however, that despite such provisions, the
economically weaker sections of India may find themselves short-changed in
their attempt to seek justice at the Supreme Court owing primarily to costs of
legal fees, travelling and accommodation expenses and other costs incurred in
the process of appeal. So far, however, no provisions have been made, such as,
additional benches in other parts of the country to allow easier access to justice
for those who cannot afford to travel all the way to New Delhi.
29
Institutional Mechanisms 8.6.1 Appointment of Judges of the Supreme Court
Under Article 124 (2), the President appoints the judges of the Supreme Court
after consultation with such judges of the Supreme Court and of the High Courts
as the President may deem necessary for the purpose. In 1998 the President
sought clarification from the Supreme Court on the issues concerning the
appointment of the judges of the Supreme Court and the transfer of High Court
judges.
A nine-judge Bench of the Supreme Court in the Presidential Reference case
(AIR 1999 SC 1) affirmed the primacy of the Chief Justice in the appointment of
the judges of the Supreme Court. The Court held that the Chief Justice of India
should consult a collegium of the four senior most judges of the Supreme Court
in the matter of appointment of the judges of the Supreme Court. The collegium
must take the decision by consensus as far as possible. Even if two judges were
to give an adverse opinion, the Chief Justice of India should not send the
recommendation to the government.
Normally the senior most judge is appointed as the Chief Justice. In 1973, this
practice was broken and the then government appointed Justice A.N. Ray as the
Chief Justice of India superseding his three senior colleagues, Justices Shelat,
Hegde and Grover, all of whom resigned after this incident. The Supreme Court
Bar Association condemned the action of the government and said that this was
a blatant and outrageous attempt to undermine the independence and impartiality
of the Judiciary, and to lower the dignity and prestige of the Supreme Court.
It has often been expressed that such an exercise of power by the executive will
make the whole concept of separation of powers meaningless. If the government
is to appoint the Chief Justice of India, every judge in the Supreme Court will try
her/his best to please the government. This may endanger the philosophy of an
impartial and independent judiciary.
Since 1977, the government has again reverted to the old practice of considering
seniority while appointing the Chief Justice of India.
Who can become a judge of the Supreme Court?

Any person who is a citizen of India and
has been a judge in any High Court for at least five years, or
an advocate in any High Court for ten years, or
in the opinion of the President, is a distinguished jurist.
Every Supreme Court judge holds his office till he attains the age of sixty-five
years, but may resign by writing to the President.
Under Article 124 (4) and (5), a Judge may be removed from office by an order
of the President only on the grounds of proved misbehaviour or incapacity.
However, the order passed by the President must be supported by a majority of
total membership of the houses and also by a majority of no less than two-third
of members present and voting. The terms ‘misbehaviour’ and ‘incapacity’ are
undefined in the Constitution. The Judiciary has interpreted that the expression
‘misbehaviour’ includes criminal misconduct as defined in the Prevention of
Corruption Act.8
8
30 K.Veeraswami v Union of India 1991 3SCC 655.
In another landmark case, Justice V. Ramaswami, a judge of the Supreme Court, Justice Delivery System
had to face an impeachment motion for irregularities in finances. The motion,
however, failed in the Lok Sabha. This was because the Congress MPs abstained
from voting. The motion suffered defeat not on the ground of merit but owing to
the ruling party abstaining from voting. The irony is that this will only make the
judiciary dependable on the executive.
A person who has held the office of a Supreme Court judge is prohibited under
Article 124 (7) from pleading or acting in any court or authority in India. This
disqualification has been placed with a view to preserving the dignity of the
apex court.
8.6.2 Jurisdiction of the Supreme Court
Original Jurisdiction (Article 131

Appellate Jurisdiction (Article 133-136)
constitutional matters (Article 132)
civil (Article 133)
criminal (Article 134)
appeal by special leave (Article 136)
Advisory Jurisdiction ((Article 143)
Original Jurisdiction
A court has original jurisdiction when it has authority to hear and determine a
case in the first instance. Under Article 131, the Supreme Court has exclusive
original jurisdiction in any dispute between:
- the centre and a state;
- the centre and a state on one side and a state on the other;
- two or more states;
if, and in so far as, the dispute involves any question (whether of law or of fact)
on which the existence or extent of a legal right depends.
Questions of a political nature are excluded from the purview of Article 131.
The article imposes two limitations on the exercise of this jurisdiction – one, the
parties involved (whether ‘State’ or not) and two, the subject matter (whether
there is existence or extent of a legal right). It should be noted that the enlarged
definition of ‘State’ given under Article 12 is not applicable under Article 131.
In the case of State of Bihar v Union of India9 , the State of Bihar filed a suit in
the Supreme Court under Article 131 against the Union of India as the owners of
the Rajasthan and Hindustan Steel Ltd, a government company, claiming damages
for short supply of iron and steel ordered by Bihar in connection with a project.
The Supreme Court held that the suit did not fall under Article 131 as its
phraseology excluded the idea of a private citizen, firm or corporation figuring
as disputant either alone or with a government. This means that only disputes
between various governments, such as between state governments, or between
the central and state governments, can be brought under Article 131. As to the
9
AIR 1970 SC 1446. 31
Institutional Mechanisms nature of disputes, the Supreme Court held that it must arise in the context of the
Constitution and the federal nature of the country that it provides for. Not many
cases are filed under Article 131.
Appellate Jurisdiction
The Supreme Court is primarily a ‘Court of Appeal’, and enjoys extensive
appellate jurisdiction in constitutional, civil and criminal matters.
Constitutional Matters
Under Article 132, an appeal lies in the Supreme Court from any judgment,
decree or final order of a High Court in civil, criminal or other proceedings, if
the High Court certifies that the case involves a substantial question of law
involving interpretation of the Constitution.
Civil Matters
Under Article 133, an appeal lies in the Supreme Court from any judgment,
decree or final order in civil proceedings passed by any High Court, if the High
Court certifies that:
the case involves a substantial question of law of general importance, and
in the opinion of the High Court it needs to be decided by the Supreme Court.
Criminal Matters
The provisions of the Constitution under Article 134 providing for criminal
appeals to the Supreme Court are so designed to allow only important criminal
cases to come before it.
i) Under Article 134 (1) (a), an appeal lies to the Supreme Court from a High
Court if the High Court has, on appeal, reversed an order of acquittal of an
accused and sentenced him to death. But no appeal lies to the Supreme
Court if the High Court reverses an order of conviction.
ii) Under Article 134 (1) (b), an appeal lies to the Supreme Court if a High
Court has withdrawn from trial a case from a lower court and sentenced the
accused to death.
iii) Under Article 134 (1) (c), an appeal lies in the Supreme Court, on the High
Court certifying that the case is fit for an appeal to the Supreme Court, if it
comes to the conclusion that there is a substantial question of law involved.
Under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970 two additional grounds are provided for appeal from a High Court to the
Supreme Court:
If a High Court has, on appeal, reversed on order of acquittal and sentenced
the accused to imprisonment for life or for a period not less than ten years.
If a High Court has withdrawn a case from a subordinate court, convicted
the accused, and sentenced him to imprisonment for life or for a period of
not less than ten years.
Appeal by Special Leave: Article 136

Under Article 136, the Supreme Court has the discretion to grant special leave to
appeal from any judgment, decree, determination, sentence or order in any matter
32
passed or made by any court or tribunal. However, Article 136 (2) excludes any Justice Delivery System
court or tribunal constituted by any law relating to the armed forces.
In spite of having such vast powers, the Supreme Court imposes certain limitations
on itself. It will exercise its jurisdiction under Article 136 only when there is a
violation of natural justice, or if grave injustice has been done or when there is a
grave error apparent on the face of the record.
Advisory Jurisdiction
The Supreme Court has been given advisory jurisdiction by Article 143 (1) when
it appears to the President that:
a question of law or fact has arisen or is likely to arise, and
the question is of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court.
The Court then, after hearing as it thinks fit, may return to the President its
opinion thereon.
The reference under advisory jurisdiction is heard by a bench of no less than five
judges. Also, under Article 143 (1), the word ‘may’ is used – this means the
Supreme Court is not obligated to express its opinion. It has the discretion of
whether or not to opine in the matter. The main utility of advisory opinion is to
enable the government to secure authoritative views on proposed legislative
measures before they are actually enacted. Such opinion, when given, is not
binding on the President.
Article 143 (2) provides that a matter which is excluded from the jurisdiction of
the Supreme Court under Article 131, may be referred to it by the President and
the Court shall be bound to give its opinion. However, the said jurisdiction shall
not extend to the disputes arising from any treaty or agreement entered into before
the commencement of the Constitution.
The foregoing discussion gives us a fair idea of the powers and the nature of
jurisdiction of the Supreme Court. Apart from these powers, the Supreme Court
can review its own decision under Article 137. However, such review is subject
to any law made by the Parliament, and the review will not lie unless there is
discovery of a new important matter of evidence, or a mistake or error on the
face of the record or any other sufficient reason.
Under Article 141, the law declared by the Supreme Court is binding on all the
courts in India. This gives rise to the question whether the Supreme Court is
itself bound by its own decisions. This question was dealt with in detail in Bengal
Immunity Co. v State of Bihar AIR 1955 SC 661, where the Court held that there
is nothing in the Constitution that prevents the Supreme Court from deviating
from its previous decisions, if it is convinced of its error and its beneficial effect
in the general interest of the public. Thus, while saying that the Supreme Court
can deviate from its previous decisions, the Court also specified the grounds on
which this can be done — had there been an error before or when the change is
in the public interest.
33
4) How is appointment of judges to the Supreme Court made?
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5) When can the President seek advisory jurisdiction of the Supreme Court?
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6) Why is the role of the Supreme Court considered to be pivotal in our
federal set up?
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8.7 TRIBUNALS
Apart from the traditional courts discussed above, our judicial system comprises
of tribunals like the Administrative Tribunals and Motor Accidents Claims
Tribunal, and special courts like the family court and consumer forums. All these
are established by statutes. These forums are a result of the search for alternative
institutional mechanisms for justice delivery prompted by huge workload on
courts, mounting arrears, a need for less rigid rules of procedure, and a need for
moving away from a strict adversarial system to decide certain disputes like
divorce and other family matters. In this section, we will discuss the administrative
tribunals set up under the Constitution.
8.7.1 Constitutional Provisions

Articles 323-A and 323-B (inserted by the Forty-second Amendment to the
Constitution) empower the concerned legislature to constitute tribunals to ease
congestion of pending cases in courts. Article 323-A empowers parliament to
enact a law providing for the constitution of administrative tribunals – one for
the union and one for each state or two or more states – for resolving disputes
relating to recruitment and conditions of service of persons appointed to public
service. Article 323-B permits a hierarchy of tribunals for other matters relating
to special subjects, such as, tax, foreign exchange, labour, industrial disputes,
34
supply of essential goods, ceiling on urban property and elections to the Parliament Justice Delivery System
and State Legislatures. The concerned legislature can specify the jurisdiction,
powers (including the power to punish for contempt) and the procedure to be
followed in the functioning of such tribunals. The jurisdiction of all courts, except
the Supreme Court under Article 136 (appeal by special leave) can be excluded.
The objective behind ‘tribunalisation’ of justice was to ease pressure on courts;

to allow for speedy disposal by dispensing with strict rules of evidence; and
adjudication of disputes pertaining to specialised subjects by persons having
technical expertise. The exclusion of the jurisdiction of other courts, however,
had been a contentious issue till a seven-member bench of the Supreme Court in
L. Chandra Kumar v Union of India10 unanimously held that exclusion of the
jurisdiction of the Supreme Court (Article 32) and High Courts (Articles 226
and 227) does interfere with the power of judicial review, which is a basic feature
of the Constitution. Therefore, the judicial remedies under Articles 32, 226 and
227 are now available against the decisions of all tribunals constituted under
Articles 323-A and 323-B.
8.7.2 Administrative Tribunals

The Administrative Tribunals Act, 1985 enacted pursuant to Article 323-A
empowers the central government to establish administrative tribunals for central
and state services. Such a law was considered necessary as a large number of
cases relating to service matters were pending before various High Courts.
Separate tribunals were expected to decrease the burden of High Courts and also
provide speedy relief to aggrieved public servants. This Act, however, does not
apply to:
the members of naval, military or air force or any other armed forces of the
Union;
any officer or servant of the Supreme Court or any High Court;
any person appointed to the secretariat of either of the Houses of Parliament.
Each Tribunal shall consist of a Chairman, and such number of Vice-Chairmen
and other members as the appropriate government may deem fit. They are
appointed by the President in case of a central tribunal, and in the case of a State
Tribunal, by the President in consultation with the Governor of that state. All
appointments are to be made by a committee headed by a sitting judge of the
Supreme Court. A tribunal should be presided over by an existing or former
judge of a High Court. The Supreme Court has held that this is necessary if the
tribunals, which are a substitute for the High Courts, are to inspire confidence
and ensure fair administration of justice.11 The service of the members can be
terminated by the President on the ground of proved misbehaviour or incapacity.
However, an order in this regard can be made only after an inquiry conducted by
a judge of the Supreme Court.
10
(1997) 3 SCC 261; Also see Law Commission of India, 215th Report, available at http://
lawcommissionofindia.nic.in/ , for the law commission’s recommendation that this decision
be revisited by a larger bench as all orders passed by a tribunal are appealed against before the
High Court, and therefore, negating the original purpose of reducing the workload of High
Courts.
11
S.P. Sampath Kumar v Union of India (1987) 1 SCC 124; also see, R.K. Jain v Union of India
(1993) 4 SCC 119. 35
8.8 SUMMARY
Let us now sum the contents of this unit:
The fountainhead of law in India is the Constitution of India. To maintain
the supremacy of the Constitution, it is necessary to have an independent
and impartial system. This function is vested in the Indian judiciary.
In this unit, we have studied the hierarchy of the courts and tribunals and
their functions and powers. India has a unified judicial system with the
Supreme Court at the apex and the High Courts and subordinate courts at
the state level.
The Constitution provides for the establishment of Central and State
Administrative Tribunals.

1) Create a detailed flow chart depicting the structure of the Indian Judiciary
from the lowermost subordinate court to the Supreme Court, on both the
civil and criminal sides.
2) Discuss the different types of jurisdiction that rest with the Supreme Court.
Give one scenario for invoking each of these types of jurisdiction.

1) Articles 233 to 237 provide for the establishment of subordinate courts in
every state. Each state is divided into judicial districts presided over by a
‘District and Sessions Judge’. She/he is known as a ‘District Judge’ when
presiding over a civil case, and a ‘Sessions Judge’ when presiding over a
criminal case. The District Judge is the highest judicial authority below a
High Court. Below her/him, there are different subordinate courts for civil
and criminal matters.
2) Article 233 provides that the appointment of district judges shall be made
by the Governor of the state in consultation with the High Court, which is
mandatory. The disciplinary control over all the subordinate courts in the
state rests with the High Court under Article 235. The High Court has
exclusive power to enquire into the conduct of a member of the subordinate
judiciary and decide on matters, such as, transfer and promotion. The State
Government cannot decide on the transfer of a district judge, even if it has
the power to appoint, promote or post such a judge.
3) Every High Court, under Article 227, has the power of superintendence
over all the courts and tribunals throughout the territory within which it has
jurisdiction. The High Courts can make general rules for the lower courts
and decide on the manner in which they should function. This power of
superintendence is not limited to just administrative matters but extends to
judicial matters as well. The power of superintendence given to the High
Courts should be used carefully and in appropriate cases, and not just to
correct minor errors of fact. The High Courts have disciplinary jurisdiction
36
over the subordinate courts. Under this jurisdiction, the High Courts decide Justice Delivery System
on the posts, transfers and promotions of the persons in the subordinate
courts.
4) Under Article 124 (2), the President appoints the judges of the Supreme
Court after consultation with such judges of the Supreme Court and of the
High Court in the states as the President may deem necessary for the purpose.
In 1998 the President sought a clarification on the issues concerning the
appointment of the judges of the Supreme Court and the transfer of High
Court judges. A nine-judge Bench of the Supreme Court in the Presidential
Reference case (AIR 1999 SC 1) affirmed the primacy of the Chief Justice
in the appointment of the judges of the Supreme Court. The Court held that
the Chief Justice of India should consult a collegium of the four senior most
judges of the Supreme Court in the matter of appointment of the judges of
the Supreme Court.
5) The President can seek the Supreme Court’s opinion under its advisory
jurisdiction, when it appears to the President that a question of law or fact
of such a nature and of such public importance has arisen, that it is expedient
to obtain the opinion of the Supreme Court.
6) The Supreme Court decides disputes between the centre and the states and
also between the states inter se under Article 131. This original jurisdiction
of the Supreme Court is very critical in a federal polity. However, the dispute
should involve a question (whether of law or of fact) on which the existence
or extent of a legal right depends. Questions of a political nature are excluded
from the purview of Article 131.
Terminal Questions
1) Refer to Section 8.3 and 8.4
2) Refer to Sub-section 8.6.2

Mahendra P. Singh ed, V.N. Shukla’s Constitution of India (Lucknow: Eastern
Book Company, 11th ed. 2008).
H.M. Seervai, Constitutional Law of India (New Delhi: Universal, 4th ed. 2005).
S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing
Limits (New Delhi: Oxford University Press, 2002).
S.K. Verma and Kusum eds, Fifty Years of the Supreme Court of India: Its
Grasp and Reach (New Delhi: Oxford University Press, 2000).
37
UNIT 9 HUMAN RIGHTS PROTECTION
MECHANISMS
Structure
9.1 Introduction
9.2 Objectives
9.3 What are Human Rights?
9.3.1 Principles of Human Rights
9.3.2 International Human Rights Framework
9.3.3 National Normative Framework
9.4 National Human Rights Institutions
9.5 National Human Rights Commission
9.6 Civil Society Initiatives
9.7 Summary
9.1 INTRODUCTION
Every human being has certain needs to be able to live a life with dignity and
realise one’s potential. These basic needs or entitlements are guaranteed to every
human being and are referred to as human rights. These internationally recognised
human rights find endorsement under our Constitution. The Supreme Court is
the guarantor of our fundamental rights (Article 32). Despite such constitutional
safeguards, we witness human rights violations.
A victim, or a person who is arrested, or their family members, while navigating
the legal system, come into contact with official machinery, such as, the police,
courts, the public prosecutor, and prison authorities. Such institutions may not
respond well, or may even refuse to help the concerned person. In such cases,
there are other agencies a person can go to. There are certain institutions which
can be contacted to get the voice of the victim or accused heard. There is an
emergence of institutions which are given the specific tasks of monitoring,
supervising and addressing problems of defined human rights violations. For
example, in cases of custodial torture one can approach the National/State Human
Rights Commission.
The National Human Rights Institutions do not require the services of a lawyer
to approach them. These Institutions provide justice to the most vulnerable and
voiceless people, such as women, children, dalits, religious minorities, and
persons with disability. These Institutions are easy to contact and get a response
to a human rights violation as they function independent of the government and
their sole responsibility is to protect human rights, such as, right to life, liberty,
equality and dignity of the individual guaranteed by the Constitution.
In this unit, we will identify the important institutions that have been set up to
38 protect human rights. The National Human Rights Commission (NHRC) has the
mandate to protect and promote human rights. There are other commissions that Human Rights Protection
Mechanisms
have the mandate of securing the rights of specific groups. The focus of this unit
is on the functioning of the NHRC.
9.2 OBJECTIVES
After going through this Unit, you should be able to:
explain the key concepts in human rights;
identify the key National Human Rights Institutions;
explain the role of these institutions; and
engage with these institutions.
9.3 WHAT ARE HUMAN RIGHTS?

Before learning more about the national human rights institutions, it is important
to understand what human rights are and the international and domestic framework
for protection of human rights.
Human rights are those rights that are guaranteed to a person simply by virtue of
her/his being a human being. Every human being possesses the right to enjoy
autonomy and the means to ensure material well-being. A person can enjoy
these rights irrespective of race, colour, sex, language, religion, political
opinion, national or social origin, or economic status. For example, a person
born to wealthy parents will not enjoy more rights than some one born in a poor
family.
Human rights are important because they recognise that each person is unique,
with distinct talent and abilities and that no one is inferior or superior to another.
At the heart of human rights is the idea that all people are born free and equal.
Everyone is entitled to live with dignity. The State, the community, or the family
do not have any right to treat anyone unfairly or unjustly. It is the duty of the
State to promote respect for the human rights of all people equally.
9.3.1 Principles of Human Rights

Human rights do not have to be bought, given, earned or inherited. They belong
to everyone because they are human beings. Human rights are, therefore,
inalienable and cannot be taken away by anyone, not even by the government.
Even if a foreigner is in a particular country, the person will enjoy human rights.
Even those who are in prison enjoy certain human rights, which no one can take
away.
The rights are the same for everyone, whether the person is born in a high caste
or low caste, is rich or poor, speaks in Hindi or Tamil, or is a Hindu, Muslim,
Christian, Sikh or Buddhist. All are born free and equal, which makes these
rights universal.
If a person enjoys the right to life and the right to dignity, the person will also
enjoy the right to work for a living and the right to education. The right to life
and the right to work are two types of rights. One right cannot be enjoyed at the
cost of the other, and so they are indivisible.
39
Institutional Mechanisms The important elements of human rights are given in the table below:
Equality Indivisibility
“All human beings are born free and One right cannot be enjoyed at the
equal in dignit y and rights”, cost of the other and so human
irrespective o f caste, religion, rights are indivisible.
political links or wealth. Everyone
can enjoy equal opportunities.
Universality Interdependency
Everyone can enjoy human rights Human rights concerns appear in
and they are applicable across the all aspects of life – at home, school,
world. workplace, courts – everywhere.
Human rights violations are
interconnected. If there is loss of
one right, such as right to
nationality, then there is loss of
other rights, such as, right to work
or right to adult franchise. In the
same way, the promotion of human
rights in one area supports other
human rights.
Human Dignity Inalienability
Human rights are enjoyed equally by The rights that individuals have
individuals, regardless of age, cannot be taken away, surrendered
culture, faith, ethnicity, race, gender, or transferred.
sexual orientation, language,
disability or social class.
Non discrimination Responsibility

Non discrimination is integral to the Government responsibility –
concept of equality. It ensures that no government is accountable for its
one is denied the protection of their actions
human rights based on some external
factors such as race, colour, sex, Individual responsibility – every
language, religion, political individual has the responsibility to
affiliation, nationality, social origin, respect human rights and to
property and birth. challenge organisations and
individuals that abuse them.
9.3.2 International Human Rights Framework

Of the various international instruments, the Universal Declaration of Human
Rights (UDHR) is the most important. It is a non-binding declaration adopted by
the United Nations General Assembly in 1948. The UDHR urges member nations
to promote a number of civil, political, economic and social rights, asserting that
these rights are part of the “foundation of freedom, justice and peace in the world”.
The declaration was the first international legal effort to set limits to the conduct
of States and impose upon them duties to their citizens. Civil and political rights
contained in the International Convention on Civil and Political Rights (ICCPR)
refrain states from intervention in enjoyment of rights, whereas, social and
40
economic rights contained in the International Convention on Economic, Social Human Rights Protection
Mechanisms
and Cultural Rights (ICESCR) impose positive obligations on the State. Some
of the most significant human rights instruments are:
Convention on the Elimination of All Forms of Racial Discrimination
(CERD) (adopted 1966, entry into force: 1969)
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) (adopted, entry into force: 1981)
United Nations Convention Against Torture (CAT) (adopted 1984, entry into
force:1984)
Convention on the Rights of the Child (CRC) (adopted 1989, entry into
force: 1989)
International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families (ICRMW) (adopted 1990)
Declaration on human rights defenders, 1998.
The enforcement of international human rights law is the responsibility of the
State, and it is the primary responsibility of the State to make human rights a
reality. There is currently no international court that upholds human rights law,
although the International Criminal Court deals with crimes, such as, crimes
against humanity, war crimes and genocide. In practice, many human rights are
very difficult to legally enforce due to the absence of consensus on the application
of certain rights, the lack of relevant national legislation or of bodies empowered
to take legal action to enforce them, for example, the Convention against Torture.
9.3.3 National Normative Framework

India has signed several international treaties, which has helped in the formulation
of various national laws. India is a signatory to the International Bill of Rights
and other major international covenants that have been ratified are CERD,
CEDAW and CRC. The rights recognised in the UDHR are also found in the
Indian Constitution. Some rights are covered in the chapter on Fundamental
Rights and some are covered under Directive Principles of State Policy. Apart
from the Constitution, specific human rights are also protected under different
laws like the Protection of Civil Rights Act, 1955, Scheduled Castes and
Scheduled Tribes [Prevention of Atrocities] Act, 1989 and Bonded Labour System
[Abolition] Act, 1976.
The Parliament/ State Legislatures can not make any law that violates any
fundamental right. Executive action too is subject to judicial review. The State is
under an obligation to take measures to ensure that human rights are protected
by providing effective remedies for persons whose rights are violated within its
territory. If the State does anything to reduce, disrespect, or interfere with a
person’s human rights, then it becomes a violation. The State is also responsible
in the event of rights violations by private persons. If a private person violates
someone’s rights relating to life, liberty, equality or dignity, the victim can
approach the State for taking action against the violator. If the State fails to stop
and punish the violator, then it becomes a human rights violation.
41
1) What are the basic principles underlying the concept of human rights?
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9.4 NATIONAL HUMAN RIGHTS INSTITUTIONS

If the Government or more specifically, if any of its officials violates a right or
does not listen to a complaint, the complainant need not feel dejected or lost.
There are agencies or institutions that have the specific responsibility to ensure
that the voices of the complainants, the victims and the abused are heard. These
are the National Human Rights Institutions. We have some specialised institutions
which have been set up to promote and protect the interests of specified groups,
such as, women, children, dalits and tribals. The National Human Rights
Commission (NHRC) set up under the Protection of Human Rights Act has the
mandate of protecting and promoting all human rights.
The Paris Principles were adopted by the UN General Assembly in December

1993 and require States to establish a framework, involving one or more
independent mechanisms, to promote and protect human rights. Such a
mechanism should be independent and pluralistic in composition, with or without
quasi-judicial powers. These institutions must operate with the support of NGOs,
academic and legal experts, and other interested parties. The essential purpose
of such a mechanism is to develop a ‘culture’ of human rights.
Responsibilities of national human rights institutions include the submission of

recommendations and proposals to relevant bodies on legislative provisions,
investigations of human rights violations where applicable, ensuring the
harmonisation of national legislation with international law, encouraging the
ratification of international human rights treaties, assisting in human rights
education, and raising public awareness. Even though, strictly speaking, only
the NHRC has the mandate of protecting and promoting all human rights in
consonance with the Paris Principles, all the other specialised institutions that
we have also have similar quasi-judicial powers.
Some national human rights institutions are specialised agencies but they all
share some common attributes:
they are often administrative in nature;
many have quasi-judicial powers to resolve disputes;
42 they are neither courts nor law-making bodies;
they play an advisory role in respect to human rights at the national and/or Human Rights Protection
Mechanisms
international level;
they provide opinions and recommendations;
some of these institutions also conduct investigations to provide remedies.
We will now briefly outline the mandate of some of the specialised institutions.
National Commission for Women (NCW)

The National Commission for Women is a specialised body which was set up
under the National Commission for Women Act, 1990. The Commission was
established to help in the monitoring of the status of women in India and also
provide a forum to file a complaint if all other bodies refuse to look into the
complaint made by a woman. The mandate of the NCW is to:
review the constitutional and legal safeguards for women;
recommend remedial measures such as new laws or amendments that can
be brought into old laws;
to take up cases where the police have not registered a case;
advise the government on all policy matters affecting women.
National Commissions for Scheduled Castes and Scheduled Tribes
These are two separate commissions and their mandates are:
to investigate and monitor all incidents of violations relating to the
safeguards provided for the scheduled castes and the scheduled tribes (SC/
ST) under the Constitution or under any other law and evaluate the working
of such safeguards;
to inquire into specific complaints with respect to the denial of rights and
safeguards of the SC/ST;
to participate and advise on the planning process of socio-economic
development of the SC/ST and to evaluate the progress of their
development under the functions of the Union and any State.
While monitoring an incident of violation, the commissions inquire into
matters, such as:
whether the victims were provided with suitable medical assistance on time;
whether adequate protection was arranged for the victims of such incidents
by providing police protection, such as, stationing a police party or by
patrolling;
whether proper compensation is paid to the victims as per provisions of
law.
National Commission for Protection of Child Rights
This was set up in March, 2007 under the Commission for Protection of Child
Rights Act, 2005. A child is defined as a person in the age group of 0 to 18. Its
mandate is:
to ensure that all laws, policies, programmes and administrative
mechanisms are in consonance with the child rights perspective enshrined
in the Constitution and the U.N. Convention of Rights of the Child (CRC);
43
Institutional Mechanisms to end the societal tolerance of violation of child rights.
Main functions include:
effective implementation of laws for protection of child rights;
inquire into specific violations of child rights and recommend initiation
of proceedings;
spread child rights literacy;
inquire into complaints and take suo moto notice of matters including
deprivation/violation of child rights, non-implementation of laws and non-
compliance of policy decisions;
research and documentation.
2) List some of the common features of all the national human rights
institutions.
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
9.5 NATIONAL HUMAN RIGHTS COMMISSION

The Government of India enacted the Human Rights Protection Act in 1993,
thereby, setting up the first national human rights organisation which would
scrutinise human rights violations. The National Human Rights Commission
(NHRC) and subsequently seventeen (17) State Human Rights Commissions
were set up in India for the protection and promotion of human rights in the
country.
An independent body
The NHRC is an independent institution due to the nature of the appointment of
its Chairperson and Members, their fixed tenure and statutory guarantees, such
as, financial independence. The National Commission has to present a yearly
report in Parliament and the State Commissions present an annual report to the
state legislatures. The Chairperson and Members of the National Commission
are appointed by the President on the recommendations of a Committee
comprising the Prime Minister as the Chairperson, the Speaker of the Lok Sabha,
the Home Minister, the leaders of the opposition in the Lok Sabha and Rajya
Sabha and the Deputy Chairman of the Rajya Sabha as Members.
What does the NHRC do?

A lot of the work that the NHRC does pertains to investigating into complaints
of custodial torture. Some of the important functions that the commission performs
are:
44
a) Inquires about a human rights violation based on a complaint from a victim. Human Rights Protection
Mechanisms
The Commission can also undertake action on the basis of a newspaper
report, which is called taking ‘suo moto’ cognizance or action on its own.
b) Intervenes in any proceeding involving any allegation of violation of human
rights before a court. The Commission can take up the matter only after
receiving permission of the court. For example, the National Human Rights
Commission intervened with the permission of the Supreme Court in the
Gujarat riot cases in 2002.
c) Inspect a jail or any other custodial institution – lock-up, mental hospital,
Juvenile Justice Home, rescue home, etc. after informing the concerned state
government. The NHRC officials can meet the persons detained, study the
living conditions of the inmates and make recommendations to the concerned
authorities.
d) Review the human rights safeguards enshrined in any law or under the
Constitution and recommend measures for their effective implementation.
e) Review the factors, including acts of terrorism, which prevent the enjoyment
of human rights and recommend appropriate remedial measures.
f) Study treaties and other international instruments on human rights and make
recommendations for their effective implementation.
g) Undertake and promote research in the field of human rights.
h) Spread human rights education among various sections of society and promote
awareness of the safeguards available for the protection of these rights through
publications, the media, seminars and other available means.
i) Encourage the efforts of NGOs and institutions working in the field of human
rights.
How to file a complaint at a National/State Human Rights Commission

As a paralegal it will be important to understand the procedure for filing a
complaint. As a primary-level human rights defender, you will be sure to come
across a human rights violation.
A victim or a person who has knowledge of a human rights violation can approach
the NHRC or a State Human Rights Commission.
The Commission, while inquiring into complaints of violations of human rights,

may call for information or report from the central government or any state
government or any other authority or organisation within a specific period of
time. If the information or report is not received within the specific time by the
Commission, it may proceed to inquire into the complaint on its own. If the
information or report is received and the Commission is satisfied that no further
inquiry is required, or that the required action has been initiated or taken by the
concerned authority, it need not proceed with the complaint and can inform the
complainant accordingly.
A person, an organisation or even a group of persons who have come to know of

a human rights violation can write a letter or an application to the human rights
commission in Hindi, English or in any language included in the Eighth Schedule
45
Institutional Mechanisms of the Constitution. The letter or the application can be treated as a complaint.
No fees are charged to register the complaint. Nowadays a complaint can also be
sent by e-mail or fax; even telephone calls are entertained. After the complaint
is sent, the Commission may ask for further information and statements to be
filed in support of the complaint.
If the Commission finds that a complaint can be entertained, a complaint number
is provided to the complainant that can be used to access the status of a complaint
online. The Commission may take any of the following steps once it has completed
an inquiry:
1) If the Commission finds that there has been a human rights violation after
investigation of a case, it can ask the concerned state government to initiate
proceedings to prosecute the concerned officer.
2) Approach the Supreme Court or the concerned High Court for directions or
file a writ to provide a legal solution to a human rights violation.
3) Recommend to the concerned government to grant immediate interim relief
to the victim or the members of the family as compensation.
What can the NHRC do if the armed forces commit human rights
violation?
While dealing with complaints of violation of human rights by members of
the armed forces, such as, the army, or para security agencies such as CISF,
the Commission shall, on the basis of a complaint filed by a victim or a
third party, ask for further information from the central government. The
central government shall inform the Commission of the action it has taken
on the recommendations within three months or within the time provided
by the Commission. The Commission has the authority to publish its report
and its recommendations made to the central government and the action
taken by that Government. A copy of this report will also be provided to the
person or the representative of the person who has filed the complaint.
9.6 CIVIL SOCIETY INITIATIVES

The collective mandate of all these institutions is to improve the human rights
situation in the country and in conducting investigations and recommending
remedies in individual cases. The results of their investigations should be open
to public scrutiny especially to civil society groups who work on similar mandates.
NHRI’s are mandated to combat impunity by state organs. Therefore, it is
important that such institutions should be judged on how they implement their
goals and perform to deliver their overall objectives. The Paris Principles also
require that the NHRIs have responsibility to ensure that national legislation is
in harmony with international human rights instruments and these institutions
should encourage ratification of instruments and ensure their effective
implementation. Similarly they have a critical role in the reporting process either
through contributing to the preparation of States party reports or where necessary
expressing independent opinions.
There have been several criticisms that these National Human Rights Institutions
in India have been operating as state agencies rather than providing an independent
view. One criticism has been that such institutions are completely staffed by
government and retired government or judicial officers making the institutions
46
suffer from the same delays and anomalies as agencies of the criminal justice Human Rights Protection
Mechanisms
system. There have been reports that the investigations have been biased and too
much of dependence on state responses which has been a reason for denial for
justice making the complainants look for alternate mechanisms within the
community such as traditional justice mechanisms like village panchayat and
those set up by the civil society such as People’s Tribunal.
People’s tribunal and public hearings

When justice seems elusive through institutional methods, civil society addresses
the issue using different strategies. Advocacy and public hearing are two such
methods adopted often by civil society. A public hearing is a forum where
witnesses, victims and those affected by the socio-economic or political issue
provide testimony to an independent panel, mostly outsiders, who have no political
agenda on the issue. The public hearing or people’s tribunal creates greater
awareness on the issue. These hearings are documented and sent to various
government institutions for their response.
The public hearings or tribunals
create a forum for a specific human rights issue;
influence public discourse on a specific issue;
alert the national and international community to the nature of the problem
faced by the people where a particular right is being denied;
promote the right of the group though greater advocacy efforts.
For instance, in 2007, over 40 organisations including community-based
organisations, researchers, trade unionists, and activists mobilised their networks
to form the Independent People’s Tribunal on the World Bank Group in India
and recorded testimonies of affected communities. Hundreds of students
volunteered their time to make the Tribunal happen and over 700 people attended
the four-day programme. This was the first People’s Tribunal in India that brought
together a broad spectrum of society to look at the damage caused by the World
Bank to the country as a whole. Affected communities and concerned groups
presented testimonies over four days in order share experiences and to inject a
sense of responsibility for people’s rights into the discourse about the Bank.
From the above discussions it is evident that there are several institutions that
are mandated to protect human rights of specific vulnerable groups in the country.
However, sustained and long-term advocacy efforts undertaken by human rights
NGOs and human rights defenders provide an impetus to the protection of human
rights and attempts to bring justice to victims. Also, sometimes institutions that
are mandated to uphold human rights function under severe external pressures.
The effective and efficient functioning of National Human Rights Institutions,

which are bodies that oversee human rights and build accountability in society,
is dependent on a vibrant and responsive civil society.
9.7 SUMMARY
The National Human Rights Commission (NHRC) has the mandate to protect
and promote human rights. There are other commissions that have the
47
Institutional Mechanisms mandate of securing the rights of specific groups, such as, such as women,
children, dalits and religious minorities. All these institutions are quasi-
judicial and share some common features.
The Paris Principles requires that national institutions should be independent

and pluralistic in composition and that these institutions must operate with
the support of NGOs, academic and legal experts, and other interested parties.
Responsibilities of national human rights institutions include the submission

of recommendations and proposals to relevant bodies on legislative
provisions, investigations of human rights violations where applicable,
ensuring the harmonisation of national legislation with international law,
encouraging the ratification of international human rights treaties, assisting
in human rights education, and raising public awareness, etc.
The collective mandate of all these institutions is to improve the human

rights situation in the country and in providing investigations and remedies
in individual cases.
Civil society initiatives like public hearings and tribunals play a very critical
role in protecting human rights.

1) How do the NHRC and the State Human Rights Commissions promote
human rights?
2) How would you file a complaint at a National/State Human Rights
Commission?

1) Human rights are those rights that are guaranteed to a person simply by
virtue of her/his being a human being, which makes them universal. Every
human being possesses the right to enjoy autonomy and the means to ensure
material well-being. All human beings are born free and equal in dignity
and rights, irrespective of caste, religion, political links or wealth. One right
cannot be enjoyed at the cost of the other and so human rights are indivisible.
If there is loss of one right, such as right to nationality, then there is loss of
other rights, such as, right to work or right to adult franchise. Promotion of
human rights in one area supports other human rights, thus making them
inter-dependent. Human rights are inalienable as they can not be surrendered
or taken away.
2) Some common attributes of all the national human rights institutions are:
they are often administrative in nature;
many have quasi-judicial powers to resolve disputes;
they are neither courts nor law-making bodies;
they play an advisory role in respect to human rights at the national and/
or international level;
48
they provide opinions and recommendations; Human Rights Protection
Mechanisms
some of these institutions also conduct investigations to provide
remedies.
Terminal Questions
1) Refer to Section 10.5
2) Refer to Section 10.5

Commonwealth Human Rights Initiative, Human Rights Commissions: A
Citizen’s Handbook (New Delhi, 2006).
UN Handbook on the Establishment and Strengthening of National Human Rights
Institutions: Professional Training Series No. 4, http://www.ohchr.org/Documents/
Publications/training4en.pdf
The Paris Principles, http://www.un.org/documents/ga/res/48/a48r134.htm
http://nhrc.nic.in/
http://ncw.nic.in/
49

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Indira Gandhi

National Open University BLE-001

Block Preparation Team

Unit Writers : Units 7 and 8 : Rainmaker Training and Recruitment Pvt.Ltd.

We have a federal parliamentary democracy, where power is shared between the

The legislature and the executive do not function as water-tight compartments.

An Ordinance however, cannot violate the fundamental rights. The validity

7.4.1 Law Making

Who drafts a Bill?

Union and State Legislatures

Yes, and they are involved through their participation in Parliamentary

Parliamentary committees are of two kinds: Standing Committees and Ad hoc

Is the life of a Bill linked to the life of the Parliament? How?

7.4.2 Legislative Procedure

If a Bill is referred to a Select or a Joint Committee, the Committee considers the

The second stage of the second reading consists of clause-by-clause consideration

7.5.1 Political and Permanent Executive

The permanent executive is also referred to as the ‘Public Administration System’

Administrative structure of the State Governments

Local self governance

Law and order

7.5.2 Local Government

District Zila Parishad

Block Block/Mandal Panchayat

Village or Group of Villages Gram Panchayat

7.5.2 Council of Ministers

7.6 OTHER CONSTITUTIONAL BODIES

Parliamentary committees receive advice from several different sets of

Constitutional bodies like the Attorney General, Comptroller and Auditor

7.8 TERMINAL QUESTIONS

7.9 ANSWERS AND HINTS

5) The executive is of two kinds – political and permanent. The political

7.10 REFERENCES AND SUGGESTED READINGS

Granville Austin, Working a Democratic Constitution: The Indian Experience

9.3 OUR JUDICIAL SET UP

Figure 8.1: Our judicial system

8.4 SUBORDINATE COURTS

Sessions Judge/Additional District Judge/Additional

Chief Judicial Magistrate/

Judicial Magistrate First Class/

Figure 8.2: Subordinate judiciary: civil and criminal

Who can become a judge of a High Court?

8.6 SUPREME COURT

Who can become a judge of the Supreme Court?

8.6.2 Jurisdiction of the Supreme Court

Original Jurisdiction (Article 131

Appeal by Special Leave: Article 136

8.7.1 Constitutional Provisions

The objective behind ‘tribunalisation’ of justice was to ease pressure on courts;

8.7.2 Administrative Tribunals

8.9 TERMINAL QUESTIONS

8.10 ANSWERS AND HINTS

8.11 REFERENCES AND SUGGESTED READINGS

9.3 WHAT ARE HUMAN RIGHTS?

9.3.1 Principles of Human Rights

Non discrimination Responsibility

9.3.2 International Human Rights Framework

9.3.3 National Normative Framework

9.4 NATIONAL HUMAN RIGHTS INSTITUTIONS

The Paris Principles were adopted by the UN General Assembly in December

Responsibilities of national human rights institutions include the submission of

National Commission for Women (NCW)

9.5 NATIONAL HUMAN RIGHTS COMMISSION