Making of the Indian

Constitution
Legacies of the British rule
 Perspectives on the Indian Freedom Struggle

03 04 05
01 02 06
Imperialist Nationalist Liberal Socialist and Subaltern/ Radical
Perspective Perspective perspective Marxist Dalit Critique Perspective
Perspective
 Legacies of British Rule

01. Political 02. Economic 03. Indian

System System Society

04. Education 05. Foreign

system Policy
01. Political System
Fundamental law of India was mostly embodied in a series of statutes
enacted by the British Parliament. Key among them was the Government
of India Acts of 1919 and 1935.

A. The Government of India Act of 1919 (Montagu-Chelmsford reforms)

• Passed as a measure of gratitude for India’s role in world war one, the primary purpose of
this act was to expand native participation in the government.
• Key reforms of the Act were the establishment of a dual form of government (Dyarchy)
with limited powers for the major provinces.
• The imperial legislative council was transformed into a bicameral legislature for all India.
• Finally, the Act established the position of a High Commissioner with residence in London
to Represent India in the United Kingdom.
B. The Government of India Act of 1935
• This Act was adopted in response to opposition and criticisms from the National Congress of India to the 1919 Act for doing too little
in terms of granting autonomy. A Westminster style parliamentary system of government is most important political legacy of
British Raj.

(a) Provincial autonomy

• Abolition of the dual form of government or diarchy and the granting of a larger degree of autonomy for the provinces
1.Institution of Governor: The Governor was the head of the executive.
2.There was a Council of Ministers to advise him. The ministers were responsible to the provincial legislatures who controlled them.
The legislature could also remove the ministers.
3.However, the governors still retained special reserve powers.
4.The British authorities could still suspend a provincial government.

(b) Nature of Indian Federalism: Diarchy at the centre

The subjects under the Federal List were divided into two: Reserved and Transferred.
1.The reserved subjects were controlled by the Governor-General who administered them with the help of three counsellors
appointed by him. They were not responsible to the legislature. These subjects included defence, ecclesiastical affairs (church-
related), external affairs, press, police, taxation, justice, power resources and tribal affairs.
2.The transferred subjects were administered by the Governor-General with his Council of Ministers (not more than 10). The Council
had to act in confidence with the legislature. The subjects in this list included local government, forests, education, health, etc.
3.However, the Governor-General had ‘special powers’ to interfere in the transferred subjects also.
C. Bicameral legislature
• A bicameral federal legislature would be established.
• The two houses were the Federal Assembly (lower house) and the Council
of States (upper house).
• The federal assembly had a term of five years.
• Both houses had representatives from the princely states also. The
representatives of the princely states were to be nominated by the rulers
and not elected. The representatives of British India were to be elected.
Some were to be nominated by the Governor-General.
• There were to be separate electorates for the minority communities,
women and the depressed classes.
• Bicameral legislatures were introduced in some provinces also like Bengal,
Madras, Bombay, Bihar, Assam and the United Provinces.
D. Federal court
• A federal court was established at Delhi for the resolution of disputes
between provinces and also between the centre and the provinces.
• It was to have 1 Chief Justice and not more than 6 judges.

E. Introduction of direct suffrage and extension of the

franchise to 37 million people from the original 5 million.
GOI Act, 1935 has not been framed with objective of shifting the political
power from hands of administrators into hands of people.
• Hence, Jayaprakash Narayan called for LOK NITI against Raj NITI Bureaucracy in India
continues to manifest colonial character. Indian elites preferred the continuation of
Draconian Acts like preventive detention laws.
• It is unfortunate the preventive detention has constitutional status. We should not forget
that Nehru who was a major civil rights activist during freedom struggle promised that there
will be ‘No Black Laws in independent India.
• Bureaucracy continues to thrive under “Cloak of Secrecy” giving rise to ‘New Despots’
Bureaucrats.
• Government has continues with official secrets Act which dilutes the Accountability &
Transparency.
 The Constituent Assembly of 1948 and
the Constitution of 1950
In 1946, the British decided to examine the possibility of granting independence to India. As
a result, a British cabinet mission was dispatched to India to
• (1) hold discussions with the representatives of British India and the Indian States in order to agree on the
framework for writing a constitution, and
• (2), set up a constituent body and an executive council. Following this mission and the ensuing
negotiations, a Constituent Assembly was indirectly elected by the provincial legislatures comprising 278
representatives and 15 women.
• Parties represented in the CA were the Congress Party which had a majority, Muslim League, Scheduled
Caste Federation, the Indian Communist Party and the Union Party.
• The CA met for the first time in December 1946 and by November 1949 the draft constitution was
approved.
• The constitution went into effect in January 1950 and the CA was transformed into a Provisional
Parliament.
• The Constitution which is still in force has been amended over 90 times making it one of the most
frequently amended constitutions in the world.
02. Economic System

Economic consequences of the British rule

1. Ruin of Artisans & Craftsmen and Progressive Ruralisation of the Indian
Economy
2. Land Revenue Policy and Land Settlements
3. Deterioration of Agriculture
4. Impoverishment of the Peasantry
5. Poverty and Famine
6. Industry and trade
7. Drain of wealth
8. Transport and Communication
 A. Ruin of Artisans – Craftsmen and Progressive
Ruralisation of the Indian Economy
Reasons: Consequences:

Disappearance of Indian rulers Ruin of the towns and cities

and their courts: Many other populous and
• They were the main customers flourishing industrial centres were
of the handicrafts produced de-populated and laid waste.
also gave a big blow to these Ex.Dhaka, Surat and Murshidabad
industries
Destruction of the self-
British officials patronised their own home- sufficient rural economy
products- Destruction of rural crafts broke
• The British based all their military and up the union between
other government stores in Britain. agriculture and domestic
industry
B. Deterioration of Agriculture
Commercialisation of Consequences
agriculture
Harshly affected the traditional
Encourage market oriented production village economy
of cash crops

Triple burden of the government, landlord

Commercial crops like opium, tea, and the moneylender.
coffee, sugar, jute, indigo, cotton,
sugarcane, groundnut, tobacco and
oilseeds etc.
Impacted into famines
Indian peasants were forced to
grow these cash crops that
spoiled the fertility Increased
population of
Commercial non-food crops Landless
substituted the food grains Labourers
C. Impoverishment of the Peasantry

Reason Consequences

Peasants were indebted and it led to rural

indebtedness as rural industries based on rural
High tax on the cultivator
handicrafts declined

Uncertain monsoons, poor

means of irrigational Man-made disasters, natural
facilities disasters like famines also affected
the Indian peasants and made
them impoverished.
D. Poverty and Famine
Reason
Famines were a product both of uneven rainfall
and British economic and administrative
policies
Uncertain monsoons, poor means of
irrigational facilities
Expansion of export agriculture, and
neglect of investment in agriculture
Consequences
Great Famine of 1876–78: The famine of 1876–78, also
known as the Great Famine of 1876–78, caused a large
migration of agricultural labourers and artisans from
southern India to British tropical colonies, where they
worked as indentured labourers on plantations.
Impact on the long term population growth of the
country, especially in the half century between 1871–
1921.
Decadal average Population growth rate (%) and trend
line
E. Decline in Industry output and trade
Reason Consequences

Industrial revolution- mass production of goods Increase threat for the handicraft industries
through machines as the British goods were sold at a much
cheaper price

De-industrialisation: These British

Massive import of machine made clothes from policies made a huge impact on the
English factories to Indian markets Indian handloom weaving industry
leading to its virtual collapse

Created unemployment
for a large community of
Indian handicrafts were taxed heavily when weavers
they were sent out of the country
F. Drain of wealth
Reason
Economic colonisation of India to service the needs of
Industrial revolution in Britain which was called Drain
of wealth-
Book- “Poverty and Un-British Rule in India” published
in the year 1871 Dadabhai Naoroji
Home Charges: Administrative and
military expenses of the Indian
government in Britain
Indian handicrafts were taxed
heavily when they were sent out of
the country
Consequences
Generation of a large export surplus- Value
& volume of India's gross exports of primary
goods exceeded the gross imports of
finished consumer goods
De-industrialisation: These British policies
made a huge impact on the Indian handloom
weaving industry leading to its virtual
collapse
G. Transport and Communication- increased connectivity
Reason Consequences

Facilitate the movement of British goods Played an important role in the national
awakening of the country

Made trading in commodities much easier and

profitable Brought people and ideas
closer

Indian handicrafts were taxed heavily when

they were sent out of the country
03. Indian Society

The continuing social conflict; Politics of caste, religion,

language can be seen as British legacy.

Many contemporary problems have been because of Divide

& rule policy of British unfortunately, Indian elites
preferred continuity over change.
04. Education System
British education system aimed at production of clerks. It emphasised
on Rote learning. It was actually against developing creative & rational
thinking.

One of the most unfortunate continuation of British rule have been the
continuation of Macaulay’s Education system.

General Committee of Public Instruction, 1823; Lord Macaulay’s

Education Policy, 1835; and at last Wood’s Dispatch, 1854 which is
considered as the “Magna Carta of English Education in India” and
contained comprehensive plan for spreading education in India.
 05. Foreign Policy
The partition of Sub – continent has been one of the worst legacies of British rule. Unfortunately, Elites in sub-
continent could not overcome the legacy of partition.

South Asia remains the least integrated among all regions only next to Middle East.

The South Asian elites have brought South Asia on the Brink of Nuclear war.

They continue to remain play things in the hands of the Neo – imperialist powers.

According to C. Rajamohan, Nehru’s polity towards neighbours was based on Curzon’s policy. Nehru’s ‘Treaty
diplomacy’ with South Asian neighbours like Nepal, Bhutan is nothing but superficial modification of creates entered
by British with these kingdoms. Indian neighbours continue to believe that India has colonial mind set.

Thus India reflects more of a continuity & less of change from the British Raj. Unfortunately, there are more negative
consequences of the legacy.

Rabindranath Tagore was right when he held that: “I am sure British will leave this cunning one day. However, I am
sure that before leaving, British will leave so Much Dirt & Alyth that generations of Indians will not be able to clean”
 01. Imperialist Perspective on the Indian freedom struggle
The colonialist paradigm on Indian history was given a mature form during the nineteenth century. The diversity and
disunity of India were always emphasized by the colonialist thinkers as justification for the colonial rule which was
considered to have united it.

‘Mere geographical expression’

• Valentine Chirol (Indian Unrest, 1910 ), asserted that India was a ‘mere geographical expression’
• It was impossible to forge a nation in India because it has never had the characteristics of a nation nor it could ever have it in
future.
• India was a conglomeration of different and often antagonistic religious, ethnic, linguistic and regional groups which could never be
welded into a nation.
Indian body politic always consisted of ‘mutually repellent molecules’
• The lack of cohesion among the Hindu states made them ‘an easy prey to fierce hordes of Arabs, Turks, and Afghans, bound
together by stern fanaticism’.
• This situation of disunity could only be corrected when a central authority was imposed from outside- Benevolent despotism
(Britishers).
Questioned its effectiveness and attempted for Pan- India mass movements
• Even when the national movement became a pan-Indian reality as a mass movement after the First World War, the
colonialist historians questioned its effectiveness and attempted to highlight the religious, caste and linguistic
divisions to deny it a national character.
Imperialist Perspective on the Indian freedom
struggle
 2. Nationalist Perspective
Strongly reacted against colonialist denigration of India and its people. In contrast to the instrumentalist approach of
many colonialist historians, the nationalist historians adopted an idea-centric approach.

Primarily two views

• the nationalist ideas have been adopted under the influence of the West
• Indigenous roots

Influence of the West-

• The Moderate nationalists generally thought that this spirit of freedom arose primarily due to Western influences.
• Western education and ideas of liberty were basically responsible for the formation of national consciousness.
• Propagation of Western ideas prepared the English-educated middle classes to form nationalist consciousness.
• The Indian National Congress was the result of the search to find avenue for self-expression and self-assertion.

Indigenous roots
• When the national movement intensified, writers began searching for indigenous roots of such ideas.
• There had existed a sense of geographical unity of India since early times, and even the idea of nationalism was already present in early India.
• Har Bilas Sarda, in his Hindu Superiority (1906), declared that ‘the ancient Hindus were the greatest nation that has yet flourished in the earth’.
• Lajpat Rai (1865-1928) asserted in his Young India (1916) that ‘fundamentally India has been a nation for the last 2,000 years’
• Subhas Chandra Bose, in his Indian Struggle, argued that India possessed ‘a fundamental unity’ despite endless diversity.
• Jawaharlal Nehru also spoke about ‘unity in diversity’ and ‘a cultural unity amidst diversity, a bundle of contradictions held together by strong but
invisible threads’.
Nationalist Perspective
National movement was a movement of all classes in Indian society.

• National movement represented the feelings of the Indian people against imperialism.
• generally believed that the masses were not capable of independent action and were to be
mobilised by the middle class leaders.
• Surendranath Banerjea wrote in 1911 that ‘Wherever you have a middle class, you have
enlightenment, freedom, progress and prosperity…. The rise of the middle class in Bengal is
therefore the most remarkable and the most reassuring of the signs of the times’
• Lajpat Rai commented that ‘The masses are easily led astray by governments or by classes in
league with governments. In every country it is the educated middle class that leads the
movement for political independence or for political progress’.

Nationalist historians think that the nationalist leaders were dedicated idealists
inspired by patriotism and the welfare of the country.

They acted as selfless spokespersons of the silent majority who could not speak
on their own.
 3. Liberal Perspective on the Indian freedom struggle

The colonialist paradigm on Indian history was given a mature form during the nineteenth
century.

The diversity and disunity of India were always emphasized by the colonialist thinkers as
justification for the colonial rule which was considered to have united it.

The Liberal interpretation of the Indian Freedom struggle used these notions of “liberal
justification” of colonialism while putting forth a critique of British imperialism and in the
creation of Nationalism.

The liberal discourse found its footings in 19th century social reform, especially Rammohan
Roy, Moderates like SN Bannerjee, Naroji and P. Mehta.
 Main features of the Liberal Schools
National movement as an outpouring on part of the collective mass of the country, unified on Nationalist, patriotic
Indian Nation. The dominant leadership particularly the INC is seen as representative of all classes and groups of the
Indian society, ignoring the underlying fault-lines on the basis of caste, class, gender and religion.

The Liberal perspective while accepting the tragic instances of communalism and the eventual partition, believes it to be
a product of colonial divisive policy. It sees India’s cultural ethos as being tolerant and secular in nature, albeit a few
hiccups that are a part of every country’s social history.

Political freedom was the main focus:

• The underdevelopment, misery and poverty are all seen as the consequences of an Imperialist regime.
• They celebrate the emphasis of the National movement on Constitutional Democracy, the ideals of Liberty, Equality,
Fraternity, Justice etc. and see the modern state of India as an extension of the values of its Freedom struggle.

While social and economic reform were a part of their agenda, Revolution in these spheres was actively avoided.

Even J.L. Nehru, for all his socialist credentials was in favour of gradual transformation of the country to extend socio-
economic rights to the general masses.

The Freedom movement is given an all encompassing character that submerges within it peasants and workers’
movements, tribal struggles, social reform movements etc.
Rammohan Roy was the pioneer of liberal tradition, the ‘modern man’ of India. A reformist, open to
reinterpreting and revalidating traditions based on new experiences. Belief in interminable human
progress.

While his Brahmo Samaj sought to reform Hinduism of its social evils, his stress on anglicized education
and policy of free trade showcased his trust in the Western mode of progress. It is important to note
that Roy lived in a time when patriotic impulses were not incompatible with a genuine admiration for
the social and political order. His internationalism is another important aspect.

According to CA Bayly, Roy’s “idea of political progress was inherently international”. He especially
emphasized on freedom of Press, independence of judiciary and representation of colonies in British
Parliament.

“The central point is that Rammohan was attempting to build an Indian public and a civil society from
the ground up, so that within a generation Indians would begin to share in power and legislative
authority.”
Liberals such as Pherozeshah Mehta campaigned for Indians to have the municipal franchise and a share in city
government.

Dadabhai Naoroji was a pivotal figure in Indian liberalism as well as Indian nationalism whose works on the drain theory
gave birth to a secular notion of economic nationalism.

The Indian National Congress formed in 1885 came to embody many of these liberal ideals, with most of its western
educated members being votaries of Enlightenment thought and ideals.

The early decades of the 20th century were especially testing times, with conflict between Swadeshi and Liberal Idealism
coming to the fore.

The same obtains is given a lyrical form in Tagore’s ‘The Home and the World’ that reflected an entire country’s dilemma
through the eyes of an ordinary Bengali household.

The INC always had a strand of constitutional Liberals and most of its ‘radical leaders’ too remained within the boundaries
of the Centre-Left, never treading into deeper depths of Marxist class struggle and upheaval.

The role of CR Das, Motilal Nehru, Tej Sapru is of critical importance here.

The very formation of the Swarajist party lay in their form belief in participation in State institutions and the 1929 Nehru
Report can be regarded as the materialization of their vision of an Indian State based on Constitutional rights, Parliamentary
sovereignty and the ideals of liberty, equality and justice.
 4. Socialist and Marxist Perspective
In an article, titled “The British Rule in India”, Marx describes India on the conventional Eurocentric terms as a community
of villages founded on Oriental Despotism, given to Fatalism, backward religion and divisions of caste and slavery.

Marx further points out that while being motivated by the "vilest of interests" and was "stupid" in the way she had gone
about it, England was the vehicle for a "social revolution in Hindustan.“

Colonialism was thus, seen by him too as a ‘blessing in disguise’ for bringing on a Revolution in Asia.

For Marx, British Colonialism performed a dual role in India- destructive and regenerative.

It would lead to the annihilation of old Asiatic Society and lay the material foundations of a Modern society in Asia by
levelling all “that was great and elevated in the Native society”.

The critique of Colonialism came to the forefront especially during the 1920’s with the Commintern.

With anti imperialist struggle in Latin America, Algeria, Vietnam etc., Marxist analysis of the same became prevalent. The
‘arrested growth’ model became especially popular which put forth the idea that imperialism partially modernized the
colony but failed to fully carry out the task.
 Mains features of Marxist perspective:

Predominant in the 1920’s especially with the formation of Communist Party and the writings of Dange (The
Socialist and Gandhi and Lenin). The founding of the Congress Socialist Party was symbolic of the wave of
socialism on the Indian political scene.

In 1940’s R.P Dutt and A.R Desai consider the Indian National Movement to be bourgeoisie in character,
especially its leadership. If not being the representatives the class itself, they sought to lead the masses to fulfill
the interests of the Bourgeoisie.

Structure invariably served the cause of the Bourgeoisie rather than the masses:

• Indian National Movement served the interests of the National and petty bourgeoisie.
• A slightly varied perspective is offered by Bipan Chandra and Sumit Sarkar view the ideals that the national
struggle came to adopt made them take up a Centrist position, wherein all classes were included. But such a
structure invariably served the cause of the Bourgeoisie rather than the masses.

The idea of Passive Revolution or War of Position adopted by Bipan Chandra in his analysis is of crucial
significance here. It was a strategy “that involved the waging of a hegemonic struggle based on a mass
movement” so as to effectively oppose the legal-authoritarian Colonial State.
Marxist political-economist Prabhat Patnaik is wary of the success of Colonial government is
breaking the pre-capitalist, feudal hierarchies. It only transforms these pre capitalist modes
and relations of production to make them a part of colonial structure.

Perry Anderson points to the major lacuna in the Indian Nationalist ideology as far as the
Indian left is concerned. He underlines its political weakness that prevented it from playing a
monumental role in the National struggle.

This is invoked not only in spiritualist leaders like Gandhi, but even a staunchly secular one-
J. Nehru. He especially points out to Nehru’s writings like ‘Unity of India’ which took on
culturist views to the dispute with China wherein he invoked the Mahabharata to legitimize
India’s control over North East Frontier Agency.

Gandhi’s take over of the secular INC , while making it immensely popular, also infuse
massive doses of mythology, symbology and theology into the Nationalist struggle.
Socialism was to influence the young blood in the movement, even though in varying degrees, from
Bhagat Singh to Subhash Chandra Bose to Jawaharlal Nehru. There was also a rapid growth of Trade
Unions and Peasant Movements throughout 1920’s and 30’s.

The 1931 Karachi Session and the resultant document on Rights, the election manifesto of Congress
in 1936 as well as the formation of Planning Committee in 1938, all are reflective of the impact
Marxist thought had on Indian National Movement.

Bipan Chandra reanalyzes the role of Jawaharlal Nehru in the Socialist/Marxist context to show that
Nehru himself had reassessed the Gandhian strategy for the Congress as one of war of position and
also saw the organisation as moving in a socialist direction to fulfil its true democratic ideals.

He points out that Nehru was one of the first to have broken out of the shackles of Stalin-Marxism to
realise that while there could be no true democracy without socialism, there could be no socialism
without democracy either.
 5. Subaltern/ Dalit Perspective
The Subaltern or Dalit perspective which especially started emerging around the
1980’s tries to the inverse the conventional methodology while interpreting the
Indian National Movement.

The alternative imagination of India as proposed by Phule and Ambedkar follows a

particular methodological route.

The conception of an alternative or affirmative imagination of India seems to be

preceded by what could be termed as oppositional imagination.

For example, Ambedkar imagines India as both “prabuddha bharat” – “enlightened

Indian” and "bahishkrut Bharat" -"ostracized India".
 Ranajit Guha on Subaltern Perspective
Ranajit Guha, in the very first volume of the Subaltern Studies, declared that ‘The historiography of Indian
nationalism has for a long time been dominated by elitism – colonialist elitism and bourgeois-nationalist elitism.’

According to Guha, all types of elitist histories have 52 one thing in common and that is the absence of the politics
of the people from their accounts.

He criticised the three main trends in Indian historiography –

• i) Colonialist, which saw the colonial rule as the fulfillment of a mission to enlighten the ignorant people;
• ii) Nationalist, which visualised all the protest activities as parts of the making of the nation-state; and
• iii) Marxist, which subsumed the people’s struggles under the progression towards revolution and a socialist
state.

According to him, there are no attempts in these works to understand and write about the way in which the
subaltern groups view the world and practice their politics.

Earlier historians were criticised for ignoring the popular initiative and accepting the official negative
characterisation of the rebel and the rebellion.
In his essay ‘The Prose of Counter-Insurgency’, Ranajit Guha launched a scathing
attack on the existing peasant and tribal histories in India for considering the peasant
rebellions as ‘purely spontaneous and unpremeditated affairs’ and for ignoring the
consciousness of the rebels themselves.

He accused all the accounts of rebellions, starting with the immediate official reports
to the histories written by the left radicals, of writing the texts of counter-insurgency
which refused to recognise the agency of the people and ‘to acknowledge the
insurgent as the subject of his own history’.

According to Guha, they all failed to acknowledge that there existed a parallel
subaltern domain of politics which was not influenced by the elite politics and which
possessed an independent, self-generating dynamics.
 People’s politics differed from the elite politics in
several crucial aspects.
For one, its roots lay in the traditional organisations of the people such as
caste and kinship networks, tribal solidarity, territoriality, etc.

Secondly, while elite mobilisations were vertical in nature, people’s

mobilisations were horizontal.

Thirdly, whereas the elite mobilisation was legalistic and pacific, the subaltern
mobilisation was relatively violent.

Fourthly, the elite mobilisation was more cautious and controlled while the
subaltern mobilisation was more spontaneous.
Disenchanted with the Congress nationalism and its embodiment in the Indian state,
rejected the thesis that popular mobilisation was the result of either economic
conditions or initiatives from the top.

Popular perception and actions were completely at variance with the Congress
leaders’ perception of Gandhi- Shahid Amin, in his article ‘Gandhi as Mahatma’

the Mahatma’s name and his supposed magical powers were also used to reinforce
as well as establish caste hierarchies, to make the debtors pay and to boost the cow-
protection movement.

The tribal assertion in South Gujarat, or the Bhil movement in Eastern Gujarat, or
the radicalism of the agricultural workers during the Civil Disobedience Movement,
there was an independent politics of the subaltern classes against the elites
 Gandhi and the Dalit perspective
The Subaltern perspective differs from the Gandhian notion of social change and reform which lay on moral
aspects like the idea of seva (service), sahanubhuti (compassion) and care; not struggle or contradiction.

In Gandhian thought the moralizing language like "seva", care, harijan, and trusteeship seek to dissolve the
contradiction and eliminate the possibility of polarization and oppositional imagination. As against the language of
seva, the dalit thought contains the language of struggle and self-help.

Gandhi’s social and caste status gave him the luxury of “seamless spatiality”. Gandhian case it is seamless because
for Gandhi, every space becomes quite hospitable and receptive. That is to say Gandhi can move in and out of any
space, even the "Bhangi colony".

Ambedkar (and even other Dalit leaders or participants of Dalit movements), on the contrary, does not have a
choice and hence has to open up spaces that are not only hostile but are also fragmented around social stigma.

Thus physical spaces which are otherwise empty get constructed through negative or positive meaning depending
upon who is assigning this meaning.
Comparison between Marxist and Subaltern perspective
Both Marxist and Subaltern school seem to stand for the oppressed against elitist domination. However, there was no seamless
coordination or agreement between the two.

Firstly, The Dalit movement put the question on its head and asked that with the castes intact how would the revolution itself
take place.

Secondly there was the issue of religion. For Marx, religion existed not to console, but to control; it was "the opium of the
people,"-a drug that dulled the will to throw off the chains of oppression. When Dalits rejected Hinduism, it might have been
necessary to fill the void.

However, this void was not filled by class ideology. In fact there has never been a clear break between Dalit movement and
religion, though forms of religion may have change-be it reformed Hinduism, Buddhism or Christianity.

The Subaltern school also faces the Post-Colonial critique.

• Post-Colonial scholars like Ganguly are dismissive of Ambedkar’s modernist moves for the political
mobilization of Dalits.
• Some of them obliquely critique Ambedkar for having indulged in unconditional borrowing from the western
modernist paradigm. Thus, Sanskrit as a step-mother does not offer conceptual food (and creates conditions
of intellectual starvation) and the postcolonial theorist also does not allow borrowing ideas from the west. “
• The Subaltern school thus, provides a ‘parallel problematic’ as against the ‘Nationalist problematic’. The
negative language is assertive of the failure of dominant nationalist thought to be historically sensitive to the
Dalit voice.
06. Radical Humanist Perspective
M.N Roy, a Marxist thinker further enriched the political
ideology through his Indian Experience giving birth to Radical
Humanism.
• He believed that the foreign and National bourgeoisie had joined hands in
exploiting Indian masses.
• He presented an elaborate programme at the 1922 Gaya Session of INC with
emphasis on modernization of agriculture, abolition of landlordism and indirect
taxes, need for minimum wages etc.
• He emphasized on the need for a mass based political party that would
mobilize the workers and peasants for collective action.
• He was critical of both Congress and Gandhi and sought to reinvigorate
Marxism by adding his thoughts on morality and freedom to it.
Salient features of Indian
Constitution
The Preamble
A preamble is an introductory statement in a document that explains the document’s
philosophy and objectives.

The ideals behind the Preamble to India’s Constitution were laid down by Jawaharlal
Nehru’s Objectives Resolution, adopted by the Constituent Assembly on January 22,
1947.

The Preamble states the objects of the Constitution, and acts as an aid during the
interpretation of Articles when language is found ambiguous.

It is not necessary to attach preamble. Even when we do not attach is on if we remove

it, it does not impact the status of the laws. It is not that preambles are attached only
to the Constitutional laws. They can be attached to any laws;
The preamble basically
gives idea of the
following things/objects:

Source of the Constitution

Nature of Indian State

Statement of its objectives

Date of its adoption

Key words in the Preamble
We, the people of India
• It indicates the ultimate sovereignty of the people of India. Sovereignty means the
independent authority of the State, not being subject to the control of any other State or
external power.

Sovereign

• The term means that India has its own independent authority and it is not a dominion of
any other external power. In the country, the legislature has the power to make laws which
are subject to certain limitations.

Socialist

• The term means the achievement of socialist ends through democratic means. It holds
faith in a mixed economy where both private and public sectors co-exist side by side.
• It was added in the Preamble by 42nd Amendment, 1976.
The preamble basically gives idea of the
following things/objects:
Secular

• The term means that all the religions in India get equal respect, protection and support from
the state.
• It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.

Democratic

• The term implies that the Constitution of India has an established form of Constitution which
gets its authority from the will of the people expressed in an election.

Republic

• The term indicates that the head of the state is elected by the people. In India, the President
of India is the elected head of the state.
Objectives of the Preamble
01. Justice
• It is necessary to maintain order in society that is promised through various provisions of Fundamental
Rights and Directive Principles of State Policy provided by the Constitution of India. It comprises three
elements, which is social, economic, and political.

• Social Justice – Social justice means that the Constitution wants to create a society without discrimination
on any grounds like caste, creed, gender, religion, etc.
• Economic Justice – Economic Justice means no discrimination can be caused by people on the basis of their
wealth, income, and economic status. Every person must be paid equally for an equal position and all people
must get opportunities to earn for their living.
• Political Justice – Political Justice means all the people have an equal, free and fair right without any
discrimination to participate in political opportunities.

Nehru had said in 1956,

• “Democracy has been spoken of chiefly in the past, as political democracy, roughly represented
by every person having a vote. But a vote by itself does not represent very much to a person
who is down and out, to a person, let us say, who is starving and hungry. Political democracy, by
itself, is not enough except that it may be used to obtain a gradually increasing measure of
economic democracy, equality and the spread of good things of life to others and removal of
gross inequalities.”
02. Equality
• The term ‘Equality’ means no section of society has any special privileges and all the people have given
equal opportunities for everything without any discriminations. Everyone is equal before the law.

03. Liberty

• The term ‘Liberty’ means freedom for the people to choose their way of life, have political views and
behavior in society. Liberty does not mean freedom to do anything, a person can do anything but in the
limit set by the law.

04. Fraternity

•The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment with the country and
all the people. Fraternity helps to promote dignity and unity in the nation.

Dr B R Ambedkar, in his concluding speech in the Constituent Assembly, had said,

•“Political democracy cannot last unless there lies at the base of it social democracy. What does democracy
mean? It means a way of life which recognises liberty, equality and fraternity which are not to be treated as
separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to
defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced
from liberty. Nor can liberty and equality be divorced from fraternity.”
Aspects related to Indian Preamble
Is Preamble a
Can Preamble
part of
be amended?
Constitution?

Relevance of
Preamble in
interpretation
Status of Preamble- Is preamble a part of
Constitution?

Berubari Case, 1960

• It was used as a reference under Article 143(1) of the Constitution

which was on the implementation of the Indo-Pakistan Agreement
related to the Beru bari Union and in exchanging the enclaves which
were decided for consideration by the bench consisting of eight judges.
• Through the Berubari case, the Court stated that ‘Preamble is the key
to open the mind of the makers’ but it can not be considered as part of
the Constitution. Therefore it is not enforceable in a court of law.
Kesavananda Bharati Case, 1973
• For the first time, a bench of 13 judges was assembled to hear a writ
petition. The Court held that:
The Preamble of the Constitution will now be considered as part of the
Constitution.
• The Preamble is not the supreme power or source of any restriction or
prohibition but it plays an important role in the interpretation of
statutes and provisions of the Constitution.
• So, it can be concluded that preamble is part of the introductory part of
the Constitution.

In the 1995 case of Union Government Vs LIC of India also, the Supreme
Court has once again held that Preamble is the integral part of the
Constitution but is not directly enforceable in a court of justice in India.
 Can Preamble be amended?
As per A-368 – It described the procedure meant for the amendment of provisions of constitution.
Preamble is part of the constitution but not a provision of constitution. Hence, the doubt if 368 can
be applied

42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati case, it was accepted that
the preamble is part of the Constitution.

• As a part of the Constitution, preamble can be amended under Article 368 of the Constitution, but the basic
structure of the preamble can not be amended.
• Because the structure of the Constitution is based on the basic elements of the Preamble. As of now, the
preamble is only amended once through the 42nd Amendment Act, 1976.
The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through 42nd Amendment Act, 1976.

• ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.

• ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
Relevance of Preamble in interpretation

A.K. Gapalan Vs state of Madras

• SC did not accept that provisions of the constitution had to be interpreted in the light
of ideas given in preamble. However, SC held that, in case of ambiguity w.r.t. any
provision, preamble can be used to understand the mind of the CA.

In Berubari Case, It held that preamble is the key to Unlock the Mind of CA, It is
like a lighthouse to throw light where there is a lack of clarity.

Keshavananda Bharathi Case

• Judiciary held that Constitution has to be interpreted in the light of the Grand Vision
expressed in the preamble, Thus preamble becomes the most important point of
reference in the interpretation of the Constitution.
Preambles of
United States
Fundamental Rights
• Various Kind of Rights- An Overview
• Genesis of constitutionally guaranteed fundamental human rights in
India
• Evolution of FRs in India
• Salient features of FRs;
• Amenability of FR’s
 Various Kind of Rights- An Overview
Natural Rights
• These are universal rights which are inherent in every individual being a part of human nature.
• They are not conferred by law but only recognized and made enforceable by law.
• Thomas Paine: “… all men are born equal and with equal Natual Right”
• For example, Right to life.

Human Rights
• Human rights are similar to natural rights in the sense that they are universal and are intrinsic in
human nature. They are needed for dignified human life and are enjoyed irrespective of social, political
and other considerations. T
• hey are retained by an individual on the basis of his/her being a human. They are contained in United
National Universal Declaration of Human Rights, 1948.

Civil Rights
• These are the rights that citizens of a country enjoy and are conferred by the Constitution or the law of
the country.
• Civil rights may differ from one country to another while human rights are universally enjoyed by all.
Constitutional Rights
• They are right enshrined in the Constitution. Some enjoy special status as Fundamental Rights and
some other do not enjoy such status- for instance, outside part III of the Indian Constitution
(other than Fundamental Rights)

Fundamental Rights
• Fundamental rights have evolved out of ‗natural rights’. The doctrine of natural rights is itself, an
offshoot of the doctrine of natural law.
• They are a branch of civil rights and are given higher importance in India as they are defended by
the Supreme Court directly. Some Fundamental Rights are confined to citizens only while others
are open to all.
• For example, Art. 15, 16, 19, 20 and 29 in the Chapter on Fundamental Rights in the Indian
Constitution (Part III) are available to India citizen only. They are essential for human
development, democracy and social progress.
 Genesis of constitutionally guaranteed
fundamental human rights in India
It is inspired by historical examples such as-
• England's Bill of Rights (1689),
• The United States Bill of Rights (ratification on December 15, 1791) and
• France's Declaration of the Rights of Man (created during the revolution of 1789,
and ratified on August 26, 1789).
British Raj also exposed Indians to ideas of democracy, human rights and European
political history.

The Indian Nationalist Leaders was further inspired by the workings of parliamentary
democracy and British political parties.
Evolution of FRs in India
The Commonwealth of India Bill, 1925
• It demanded 7 FRs for Indians. Among these rights included:
• Individual liberty, freedom of conscience, free expression of opinion, free
assembly and equality before law.
• the bill also has provision for right to free elementary education, equal right to
use roads, court of justice etc.

Nehru Commission, 1928

• Apart from calling for dominion status for India and elections under universal
suffrage, would guarantee rights deemed fundamental, representation for
religious and ethnic minorities, and limit the powers of the government.
The Sapru Report of 1945
• The Sapru Committee was assigned the task of doing spadework for making constitution for future
India.
• The committee was distinguished for making two suggestions about rights.
• It made distinction between justiciable rights and non- justiciable rights.
• It suggested that rights of the minorities must be protected.3

Sub committee on Fundamental Right

• Bhimrao Ramji Ambedkar became the chairperson of the drafting committee.
• The Fundamental Right sub-committee or the rights sub-committee headed by J. B Kripalani.
• The sub-committee decided to make FRs justiciable rights.

A notable development during that period having significant effect on the Indian
constitution took place on 10 December 1948 when the United Nations General
Assembly adopted the Universal Declaration of Human Rights and called upon all
member states to adopt these rights in their respective constitutions.
Salient features of FRs
01 Integral part of the Constitution:
• Fundamental Rights have been made an integral part of the Constitution and hence cannot be taken away by ordinary
legislation.
• Any law passed by any legislature in the country would be declared null and void if it is derogatory to the rights
guaranteed by the Constitution.

2. Comprehensive and detailed:

• The rights enumerated in the Part III of the Constitution are very elaborate. Each Article has been described with its
scope and limitations.

3. Lack of social and Economic Rights:

• The Constitution guarantees only civil rights and freedoms. Rights like Rights to work , Right to Health, and Right to Social
Security have not been included in the Fundamental Rights.

4. Rights are qualified

• The fundamental rights of the people are not absolute except the right against untouchability. They are qualified with
limitations and reasonable restrictions in the collective interest of the society.
• The limitations have been laid down for protecting public health, public order, morality and security of India.
• Some exceptions are also provided to Fundamental Rights through their non-applicability to members of security and law
and order related forces, during martial law and, for certain laws necessary for socio-economic reforms.
5. Enforceability of Rights
• Justiciable rights means if any of these rights are violated by the government or anyone else, the
individual has the right to approach the Supreme Court or High Courts for the protection and
enforcement of his/her Fundamental Rights.
• Thus, the Constitution not only grants but also guarantees these rights. There are elaborate
instruments to protect these rights, such as Right to Constitutional remedy, Public Interest Litigation,
Human Rights Commissions.

6. Fundamental Rights are amendable

• Fundamental Rights are not sacrosanct and permanent. Parliament has the power to amend any part
of the Constitution including Fundamental Rights.
• The Fundamental Rights, despite having inviolable nature, can be amended by the Parliament, subject
to the ‘basic structure’ of the Constitution.
• The Parliament has, in practice, exercised this power on several occasions.
7. Provision for the Suspension of Rights
• The Constitution provides for suspension of all or any of the Fundamental Rights during an emergency.
However, such a suspension automatically ends when the emergency ceases or when the President
withdraws it.
8. Constitutional superiority of Fundamental Right
• The Fundamental Rights of the citizens are superior to ordinary laws and the
Directive Principals of State when the President withdraws it.

9. Special Rights for the minorities

• The Fundamental Rights guarantee some special rights to the minorities of various
kinds.
• This is apart from the guarantee of the secular nature of the Constitution.
• Cultural and educational rights have been granted to them. It abolishes
untouchability and makes it a crime. It has also granted special protections to
women, children and the weaker sections of society.
 FRs are subdivided into two groups

Positive commandments Negative injunctions

Positive commandments are

Negative injunctions are
those rights which confer
those which impose some
some special privilege to the
prohibition on the state for
state to benefit the
not to interfere or violate the
individual e.g. Article 16(1),
rights given to the citizens.
Article 19, 25 etc.
 Amenability of FR’s:
In Shankari Prasad Case 1951 the court held that the parliament enjoys two types of
powers:

• Ordinary legislative power.

• Constitutional amendment power.

Any enactment made by parliament using legislative power is called a law and is
covered the scope of Article 13(2).

However if the parliament uses its constitutional legislative power i.e. to amend the
constitution then it will be called as CAA but not a law as per the definition of law
under Article 13(3), so outside the preview of 13(2).
Article 13(3) defines law and states that law includes an ordinance order by law, rule, regulation,
notifications, customs and laws made by legislative and any competent authority in the territory of India
hence the court upheld the 1st CAA.

• In Golaknath Case 1967, SC overruled its earlier decision and held that Article 368 includes only
the procedure to amend the constitution and did not confer any power to parliament i.e. SC ruled that
parliament enjoys only one kind of power i.e. ordinary legislative power.
• Parliament responded by enacting 24th CAA 1971 in which it amended the title of Article 368 which
now reads as the power and procedure to amend the constitution. This amendment act also introduces
368(3) i.e. nothing in Article 13 shall apply to amendment made under 368 and also introduced 13(4)
which states that nothing in this Article shall apply to any amendment act made under 368.

24th CAA 1971 was challenged in SC in KBC (1973) and SC held that 24th CAA is valid and parliament enjoys
constitutional amendment power along with ordinary legislative power but any such amendment is limited
to the extent that parliament does not destroy the basic structure of the constitution.

Parliament enacted 42th CAA 1976 which took away the power of judicial review in the case of CAA’s and SC
in Minerva Mill Case 1980 held that judicial review in the part of the basic structure of the constitution and
this provision of the 42th CAA was declared unconstitutional.
 The Six Fundamental rights
The original Constitution (1950) has seven Fundamental Rights. But after the passage of the 44th
Amendment in 1978. This Amendment deleted the seventh fundadmental right, viz., right to
protperty (Article 31) from the list of Fundamental Rights.

There are now six FRs.

1.Right to Equality
2.Right to Freedom –
With 86th Amendment Act, the Right to Education has been included in the
list of Fundamental Rights as part of the Right to Freedom by
adding Article 21(A).
3.Right against Exploitation
4.Right to Freedom of Religion
5.Cultural and Educational Rights
6.Right to Constitutional Remedies.
 Debate on Uniform Civil Code (UCC)
The debate on uniform civil code (UCC) revolves around 3 issues
1.Secular nature of Indian State
• According to those favour UCC, India will become secular in the true sense, only when
there is a UCC. UCC is based on the idea of Universal citizenship and the understanding of
secularism as religious neutrality.
2.National Integration
• According to the supporters of UCC, as longas the different communities countries to
practice different personal laws. Special right give to then they will continue to remain
conscious of their separate identities and will never average as a strong Nation.
• Gender Justice
• According to Feminists UCC will result into gender Justice. It will help in realising the
constitutional ideals of
• Equality Before Law
• Human Dignity
The debate on UCC in the country dates back to the constituent
assembly, Leaders like Hansa Mehta ; Rajkumari Amrit Kaur K.M. Munshi
favoured the introduction of UCC

Members of the minority like Ismail Sahib Pocker Sahib, strongly opposed
UCC.

Pundit Nehru’s Ambedkar favoured UCC.

However, Ambedkar was realistic enough to understand that conditions
are not conducive, Hence, he wrote that “once conditions become
conducive, UCC can he introduced.
 UCC is a European Concept
In 17th century Europe, it is linked to the process of modernisation and secularisation in the west.

Basis of secular nationalism.

• The experience of the 30 years’ war forced these countries to roll back the religion and to establish Solidarity.

European nation status accepted the principle of sovereignty of the state rejecting the sword of the Hope Church.
• Hence, state became the supreme institution to determine law. There has been no limitation on the power of
law making by the state
HOBBES,- Liberty is where law is silent
• Freedom to conduct life according to its own way was dependent on the will of the sovereign. Hence, in these
countries, even the laws governing family, marriage, divorce, inheritance, so called personal laws came within
the scope of legal sovereignty of the state.
John Locke- In these countries, religious freedom means freedom of conscience
• It does not involve freedom to practice, profess & propagate religion.

Thus, the European Neutrality led to UCC. (in the public sphere) state – uniform laws irrespective of religion
Status of Codification of Muslim Personal laws

The 1937 Act prohibits the state from intervention. As per the religion,
Muslims are not supposed to live under man made laws.

However, in many Muslim countries, there is a codification of laws. But the

issue is that they are Islamic states.

Within Islam, there are different sects within each sects, there are different
schools, of interpretation. Hence, even when the community goes for
codification, they have to first arrive at the consensus among themselves.
 Judiciary over the debate on the Uniform Civil Code
Shah Bano Case (1985)
• Supreme court had declared that the Muslim women are eligible to get maintenance in case of divorce at par
with Hindu women, which means that they can get maintenance even after the Iddat period (after Iddat-
maintenance used to be by community blood relating of women see if legist overreach/exec. Overreach

The Parliament had passed Muslim Women Protection of Rights on Divorce Act 1985
• The act restored the earlier position where Muslim women would got maintenance only for the iddat period by
the husband.

Shayara Band v/s Union of India, 2017

• Supreme Court has declared that talaq –e- biddat is not the essential practice of Quran. Means that state in
India is changing).
• Doctrine of eclipse applies but law doesn’t end
• P.B. Mehta said Indian Judiciary is self-perpetuating institutions
• Opportunities otherwise unnecessarily, it won’t conflict with legislative
• SC gave the judgement just to build its image – not really because of concern for Muslim women.
• The GOI had passed a bill in Lok Sabha Muslim women (Protection of Rights on Marriage) Bill, 2017 and also
an ordinance has been promulgated for the same (to bypass his Rajya Sabha) ordinance – not an executive
order it is a legislative power of president.
 Will the Goa model work?
Goa is often heralded as a model state, the only one which has a Uniform Civil Code, so
it’s interesting to look at its experience.

Muslims, Hindus and Christians in the state are bound by the same family laws which
retained the 1867 Portuguese civil code even after its merger with India in 1961.

lawyer-activist Albertina Almeida says it doesn’t automatically ensure equality.

• “Uniformity in law does not necessarily mean there is no discrimination. We have
some provisions that are uniform in discrimination. The management of the property
is the privilege of the male spouse in Goa and it is uniformly applicable to all
communities,” says Almeida.
 UCC and Secularism
Uniform Code is presented to Indians is mostly within the frame of ‘Secularism’, in other words as if it is
only to do with ‘minority appeasement’.

the ‘Secularism’ frame, naturally, brings in politics.

• The one active voice standing for a Uniform Civil Code has been the Bhartiya Janta Party. It has been one of their
three key planks, besides Article 370 and Ram Mandir.
India’s constitutional ethos also protects plurality.
• Its objective is not to produce homogeneity. Uniformly distributed rights are desirable. But no one will say the
‘Hindu Undivided Family’, with the rather patriarchal notion of a ‘Karta’ (the oldest male as its head, as codified at
present), presents any equitable ideal.
Hindu Code Bills in 1955-56
• The showdown between Nehru and Rajendra Prasad made headlines.
• The first Lok Sabha passed the Hindu Code Bills in 1955-56, in the form of four separate acts, the Hindu Marriage
Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act.
• The resentment of the Hindu right-wing, for the ‘exception’ that was made for the Muslim community, goes back to
that even though the new Hindu laws too were rather modest when seen in a reformist, gender equity light.
Law commission on UCC, 2018

“UCC is neither desirable nor feasible at this stage.

Former law commission chief, Justice B.S. Chauhan is of the opinion that the
government should start working on reforms of family laws across
communities.

It is going to be a long process and the government should proceed carefully.

Bringing in a unified law for tribal will be legally difficult.
What is the status of Indian state modifying personal law?

Britishers codified personal laws related to the Christians and Parsis.

They tried to codify the Hindu personal laws (Hindus, Jains, Buddhists, and Sikhs). But there was a strong opposition by
Hindus. (Note: Either make Parties represented law to come from communities Hinduism

Upper caste Hindus even opposed Ambedkar’s attempt to modify the Hindu personal laws in the form of Hindu code Bill

Hindu personal laws have been gradually modified and codified. (Note: Hindus did not accept Britishers modify then
personal laws how can you expect Muslim except)

Recently, a separate law known as Anand Marriage Act has been codified for the Sikh community

So far, the codification of Muslim laws yet to the done remains. As per Muslims personal law Shariat application Act,
1957. State shall not intervene in Muslims personal laws.

A Special Marriage act also exists. Person following and religion can option for special marriage Article (marriage has
become on civil basis, rather than on religious grounds).
 Opinion of Scholars
Opinion of feminists scholars
• Flavia Agnes (Jurist)- UCC is not a Silver bullet that will bring Justice automatically.
• Codification of Hindu law is not a guarantee that women have achieved equality
• Constitution does not envisage uniformity in the Indian constitution, personal laws are in the concurrent list- This
itself means their Constitution permits diversity.
• Different ethnic communities (schedule – VI) are allowed to practice their customs & traditions.

Niveditha Menon – (political scientist)

• Any reform of Muslim personal laws should not be based on ‘Self-assured arrogance of Hindu customs &
traditions. In many ways, Muslim personal laws are more advanced that Hindu personal laws.
• Example: Among Muslims, all wives have equal status. Bigamy is more in practice among Hindus. Uptil recently
the second wife had no protection.

Prof. Faizan Mustafa

• He also feels existing gaps in the realm of personal laws must be addressed in a community-specific way first.
• “A committee of experts is needed to look at all these questions first. They should create a uniform law for one
community, and then try to create a code based on good provisions of different personal laws,” he says.
 Amendability of Indian
Constitution
• Two ways of amendment of Constitutions
• Nature of amenability in Indian Constitution
• Flexibility of Indian Constitution
• Power of Parliament to Amend the constitution and it’s Procedure (Article 368)
• Amendment of the Fundamental Rights
 Introduction
“The duty of man is the same in respect to his own nature as in respect to the nature of all other
things, namely not to follow it but to amend it”- John Stuart Mill

The constitution of a country, like any other pragmatic instrument, must keep changing with the
changes in need of society. Law is dynamic; it evolves with the changing needs and circumstances of
the people of nation.

Pandit Nehru observed that “there was no permanence in the constitution, as it would stop the
nation’s growth.”

The amendment of constitution should only be resorted to in cases of serious repercussions or

emergent circumstances or a special contingency.
 Two ways of amendment of Constitutions
These changes in the constitutions on which countries base their whole governance and political
institution are bought in two different ways which is named as
(a) De jure (Formal modification)
• modification or amendment in constitution made by using the amending process provided in the constitution
itself, which may be either participation for people directly or indirectly by their chosen representative
whatever is given in the constitution.
(b) De facto (Informal modification)

• informal modification when the constitution is amended or modified through (a)Judicial process (b)
executive actions; (c)Desuetude.
What us amendment by Desuetude ?
• Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding
force upon political actors as a result of its conscious sustained nonuse and public repudiation by political
actors.
• India doesn’t' have a system of desuetude. Therefore, statutes are open-ended. They continue to remain on
statute books, unless they are specifically identified for repeal
 Nature of amenability in Indian Constitution
In a federal constitution, the procedure of amendment is complicated, so that the provisions do not get
tampered too often.

However, the forefathers and framers of our constitution were keen to avoid excessive rigidity.

Thus, avoiding both extremes, Indian constitution has adopted a middle path.

It is neither too rigid to prevent important amendments nor too flexible to admit frivolous changes.

However, the amendment of constitution often been used to achieve political purpose or to override
judicial verdicts.

Moreover, multiple and multifarious amendments undermines the sanctity of constitution as an organic
instrument and creates confusion.
 Flexibility of Indian Constitution
For Example, the 42nd Amendment Act, 1976 (‘Act of Revision’) effected vital changes e.g.
fundamental rights devalued vis-à-vis directive principles.

The 43rd and 44th amendments wiped out many of the provisions of 42nd Amendment.

The Procedure for amendment, instead of being rigid, has rather proved too flexible.

There is no separate constituent body for amendment and the parliament, the ordinary legislative
organ of union , performs the function.

The constitution can be amended under Article 368 as well as ordinary legislations of the Parliament
under Arts 2,3 and 4.

Beside these formal procedures, the constitution gets amended through constitutional practices,
conventions and by judicial interpretations
 Power of Parliament to Amend the
constitution and it’s Procedure (Article 368)
Article 368, due to this our constitution is a living document and therefore, it can neither be called rigid
nor flexible but partly rigid and flexible. It states that-
• (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power
amend by way of addition, variation or repeal any provision of this Constitution in accordance with
the procedure laid down in this article.
• (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the
total membership of that House present and voting, [it shall be presented to the President who shall
give his assent to the Bill and thereupon]the Constitution shall stand amended in accordance with the
terms of the Bill.

Note:
• The state legislature cannot initiate any bill/proposal for Amendment of the constitution.
• Previous sanction of the President is not required for introducing in parliament any bill for
amendment of the constitution.
 A. Amendment by Simple Majority
By simple majority of each house of Parliament.

It is like an ordinary bill. Formation of new states, creation or

abolition of legislative councils is made by such procedure.

Thus, amendment at the instance of the states, or amendment by

state legislature, is included in such category.

Amendments under this category are expressly excluded from the

purview of Article 368.
Some of the articles that can be amended by Parliament by simple majority are listed
below:
• Admission or establishment of new states.
• Formation of new sates and alteration of areas, boundaries or names of existing states.
• Abolition or creation of legislative councils in states.
• Second Schedule: Emoluments, allowances, privileges and so on.
• Quorum in Parliament.
• Salaries and allowances of MPs.
• Rules of procedure in parliament
• Privileges of Parliament,, its members and its committees.
• Use of official language.
• Citizenship: acquisition and termination
• Election to Parliament and state legislature.
• Delimitation of constituencies.
• Union Territories
• 5th Schedule (Provision as to administration and control of schedule area and schedule tribes
• 6th Schedule (Provision for administration of tribal areas in state of Assam, Meghalaya,
Tripura, Mizoram and Arunachal Pradesh .
B. Amendment by Special Majority

By special majority we means the majority of ‘total members of each House’ and
by majority of at least 2/3rd ‘present and voting’.

All amendments, other than those referred to above, come within this category
e.g. Powers of election commission (It is a constitutional body under Article
342(2).
Provisions which can be amended by special majority are listed below:
1.Fundamental Rights. (FRs)
2.Directive Principles of State Policy. (DPSPs) .
3.All the provisions which are not covered by 1st and 3rd categories.
 C. Amendment by special majority and
ratification by states
Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a
special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority.

If one or some or all the remaining states take no action on the bill, it does not matter; the moment half of the
states give their consent, the formality is completed.

There is no time limit within which the states should give their consent to the bill.

1.Election of President : Article 54 and Article 55.

2.Executive Power of Centre and state- Article 73 and Article 162.
3. Supreme court: Article 124 and 227 , High courts: Article 214 to Article 231, Judiciary for UT: Article 241.
4.Distribution of Legislative Power: Article 245 and 255.
5.Part XI, Chapter 1.
6.Lists of 7th Schedule.
7. Representation of state in council of states: 4th Schedule.
8. Article 368 itself.
 Amendment of the Fundamental Rights
Shankari Prasad v UOI (1951) case where the supreme court held that they could be amended.

However in Golaknath v. state of Punjab(1967) case the supreme court overruled the decision in Shankari
Prasad and held that fundamental rights cannot be amended by a constitutional amendment.

In order to remove difficulties created by the above decision of Apex court i.e.SC, the parliament enacted
24th amendment (1971) empowering the parliament to amend the fundamental rights, which was
challenged in the Keshvananda Bharti v. State of Kerala (1973) case wherein the court upheld the 24th
amendment but negated the claim that parliament had unlimited amending power and also held that
Parliament cannot amend the Basic structure of Indian Constitution.

Then came the 42nd Amendment which empowered parliament to amend even the basic structure
and such amendment could not be questioned in any court or any ground.

Finally in the Minerva Mills case the Apex court stuck down these clauses.
 Federalism
1. Meaning and Definition of Federalism
2. Difference between federation, confederation & unitary system
3. Comparison between Indian & American model- K C Wheare
4. Federalism in India
5. Federal Features of the Indian Constitution
6. Unitary Features of the Indian Constitution
7. Criticism of Indian Federal System
 Introduction
The term federation is derived from the Latin word “Foedus” meaning ‘Treaty or Agreement’. Hence it is the result of
an agreement between two sets of governments, that is Central or Federal government and State government.

Historically, a federation means a union of some states brought about through the instrumentality of treaty. Since USA
was the 1st federal government to the formed in the world, the theory of federalism is based on the features of the US
constitution

Federalism is a result of historical evolution. It springs from the necessity for the union of a number of Independent
States which are not strong enough individually to protect themselves from outside danger, and whose union is
requisite for their safety and for the promotion of their economic interests, but which are not prepared to surrender
their independence completely.

Its fundamental principles have been fully worked out in the most highly developed federation in the world, the
United States
The word “Federation” implies
• Firstly, federation is the result of an agreement;
• secondly, this agreement is to delegate powers;
• thirdly, the delegation of powers is to a common government;
• fourthly, the delegation of powers is with a view to an entirely new constitution;
• fifthly, the agreement is among self-contained states; and
• lastly, these states retain, in the main, their constitution.

“A federal system of government is one in which a constitution divides governmental

powers between the central, or national government, and constituent government giving
substantial functions to each. Neither the central nor the state receives its powers from
the other; both derive them from a common source, the constitution. Finally, both levels
of government operate through their own agents and exercise power directly over
individuals.”
 Definitions:

K. C. Wheare “Federation is a system which consists of two sets of governments which are
independent, co-ordinate and distinct.”

“Federation is a political contrivance intended to reconcile national unity with the

Prof. A.V. Dicey maintenance of State Rights.” Federalism is a political contrivance among those who
desire unity, without uniformity

Dr. B.R. Ambedkar “The partition of legislative and executive power of the centre and units is the main
criteria of federation.”
‘Each model is Sui – Generis’ means that each model can have its own specific features
depending on the circumstances and the requirement.
Granville Austin E.g. USA is an example of dual federalism CANADA, initiated the idea of cooperative
federalism
Difference between federation, confederation & unitary system.

A Confederation is a loose union over confederating independent states, whereas a Federation is a union deriving its
authority from the citizens of the union.

A Confederation is the outcome of an agreement or treaty made generally for a specific period, whereas a Federation is
the result of a true constitution supreme over all other instruments, from which both governments, national and states,
derive their respective powers, and no government is allowed encroachment on the powers of the others.

In a Confederation, the powers of the common body or authority are narrow and extremely limited, whereas in a
Federation, the powers of the general government are wider and capable of being exercised through its own agencies.

In a Confederation, the units retain their sovereignty, whereas in a Federation, the authority of government is shared by
them with the general government.

In a Confederation, the general government is subordinate to the regional governments whereas in a Federation, the
general government co-exists with the regional governments, and is independent of them.
A Confederation is a temporary union but a Federation is a permanent union.

A Confederation is not a new state; it is a loose association of states, and each state continues to
retain its separate identity and sovereignty. But a Federation is a new state and nation.

Example of Federation - and the U.S.A., Canada, Australia and the former USSR.

Example of Confederation- The American Confederation (1781-89), the German Confederation

(1815- 60), and the League of Nations (1920-39).
 Comparison between Indian & American model- K C Wheare

India to be quasi – federal

• According to him, India is federal in form, but unitary in spirit
• He calls the Indian constitution having subsidiary federal features, whereas Prominent unitary features
Limitation of approach of KC WHEARE
• KC WHEARE approach is a legal constitutional approach (static method – not understanding the actual
development regarding Political system, Hence his approach is Static.
According to professor MP Singh federalism is a dynamic concept
• It needs to be understood in the socio – cultural context
• Indian federalism as well as US federalism has been dynamic
“Indian constitution was written in an atmosphere of fear” – Paul Brass
• Indian Federalism emerged out of euphoria of independence, the trauma of partition, the problem of
integration of princely states and the need for planned economic development for removing
backwardness, poverty and food shortage prompted them to establish a strong centre in it.
 USA India

➢ Only one list (Federal List) ➢ Union List; State list and Concurrent List

➢ Residual powers with State ➢ Residual Powers with Union

➢ It is based on Coming together approach ➢ Administrative concern

➢ Dual citizenship ➢ Single citizenship

➢ No Finance Commission, no planning Devolution of fianancial power from centre

to states, National Economic planning at
commission centre level
 Federalism in India
Some scholars describe India as a quasi-federal state, and some even regard it as more unitary than
federal. It is really a debatable issue.
In view of the continental size of its population on one hand, and the diverse nature of its society on
the other, the constitution makers of India resolved to opt for a federal system instead of a unitary
one.

Views of Scholars
• K.C.Wheare says, “the Constitution is quasi-federal,” and classifies India as “a unitary state with
subsidiary federal principles rather than a federal state with subsidiary unitary principles.”
• Sir. Ivor. Jennings feels, that India is a federation, with a strong centralizing tendency.
• According to K. M. Munshi, the constitution made India “a quasi-federal union invested with
several important features of a unitary government.”
• Prof. P.K.Tripathi, formerly member of the Law Commission of India, finds “federalism in India a
myth and not reality.”
• Appleby, goes a step further to describe the Indian Constitution as “Extremely Federal.”
• D. D. Basu- The constitution of India is neither purely federal nor unitary, but a combination of
both. It is a union or a composite of a novel type.
 Federal Features of the Indian Constitution:
The Constitution is Federal in Form
01. Division of Powers
• The Seventh schedule contains three legislative lists which enumerate subjects of administration viz.,
Union, State and Concurrent lists.
• The union list consists of 97 subjects, the more important of which are defense, railway, posts and
telegraph, currency etc.
• The state list consists of 66 subjects, including public order, police, administration of justice, public
health, education, agriculture etc.
• The concurrent list embraced 47 subjects including criminal law, marriage, divorce, trade unions,
electricity etc.
• The residuary powers have been vested in the central government.
02. Supremacy of the Constitution
• As Prof. K. C. Wheare rightly says, “ these two institutions the supremacy of the constitution and the
written constitution are, then essential institutions to a federal government.
• The Supremacy of the Constitution is essential if the government is to be federal; the written constitution
is essential if the federal government is to work well.”
03. A Written Constitution
• All the modem federations like the U.S.A., Australia, Switzerland and Canada
have hammered their constitutions, and they are ‘written’ in nature.
• However, it should be noted that in the U.S.A., in addition to the federal
constitution, each state has its own constitution.
• The Indian constitution clearly demarcates the powers between the centre
and the state. Dual polity and a clear written constitution are absolutely
essential for the functioning of federalism.
• In a written constitution the central government will not encroach upon the
state powers, and both have to work within their jurisdiction.
• The United States of America, Australia, Switzerland, Canada and India are the
examples of federal constitution.
04. Rigid Constitution
• In a rigid constitution the procedure of amendment is complicated and difficult.
• The Indian constitution is largely a rigid constitution.
• All the provisions of the constitution concerning federal state relations can be amended only by the
joint actions of the state legislatures and the union parliament.
• Such provisions can be amended only if the amendment is passed by a two-third majority of the
members present and by voting in the parliament, and is ratified by at least one half of the states.

05. Independent Judiciary

• Federal court is indispensable to a federation. It acts as the guardian of the constitution.
• The judiciary has occupied a very important status in federal countries like the United States,
Switzerland, Australia, Canada and India.
• The Supreme Court of India can declare a law as unconstitutional if it contravenes any provisions of
the constitution. In order to ensure the impartiality of the judiciary, our judges are not removable by
the executive and their salaries cannot be curtailed by the Parliament.
• In India, the Supreme Court (which is the federal court) and the High Courts belong to the same
integrated judicial system.
06. Bicameral Legislature
• A bicameral system is considered essential in a federation because it is in the Upper House alone
that the units can be given equal representation.
• Constitution of India also provides for a bicameral legislature at the Centre consisting of the Lok
Sabha and the Rajya Sabha.
• While the Lok Sabha consists of the elected representatives of people, the Rajya Sabha mainly
consists of representatives elected by State Legislative Assemblies.
• In fact, most of the modem federations have adopted the principle of bicameralism. America,
Canada, Australia, Switzerland, and India have adopted the bicameral system.

Dr.Herman Finer observes, “Legislatures are bicameral for two broad and different reasons as a
part of federalism and as the result of a desire to check the popular principle in the Constitution.”
 Unitary Features of the Indian Constitution:
A Strong Central Government
01. The flexibility of the constitution
• the constitution is a blend of flexibility and rigidity. Certain provisions of the constitution
can be easily amended. In case the amendments seek to change aspects of federalism in
India, the provision to bring about such amendments is not easy.

02. More power vests with the Centre

• the constitution guarantees more powers with the Union List. On the Concurrent List, the
parliament can make laws that can override the laws made by a state legislature on some
matters. The parliament can also make laws regarding certain subjects in the State List.
(Read about the Union and Concurrent List mentioned in the 7th Schedule of the
Constitution; linked in the article.)

03. Unequal representation of states in the Rajya Sabha

• the representation of the states in the upper house is based on the states’ populations.
For example, Uttar Pradesh has 31 seats and Goa, 1 in the Rajya Sabha. In an ideal federal
system, all the states should have equal representation.
04. The executive is a part of the legislature

• In India, the executive in both the centre and the states is a part of the legislature.
This goes against the principle of division of powers between the different organs of
the government.

05. Lok Sabha is more powerful than the Rajya Sabha

• In our system, the Lok Sabha is more powerful than the upper house and unequal
powers to two houses is against the principle of federalism.

06. Emergency powers

• the centre is provided with emergency powers. When an emergency is imposed, the
centre has increased control over states. This undermines the autonomy of the states.
07. Integrated judiciary

• the judiciary in India is integrated. There is no separate judiciary at the centre and the state levels.

08. Single citizenship

• In India, only single citizenship is available to citizens. They cannot be citizens of the state as well.
This helps in increasing the feeling of nationality as it forges unity amidst regional and cultural
differences. It also augments fundamental rights such as the freedom of movement and residence in
any part of the nation.

09. Governor’s appointment

• the governor of a state acts as the centre’s representative in the state. The state government does
not appoint the governor, the centre does.

10. New states formation

• the parliament has the power to alter the territory of a state by increasing or reducing the area of
the state. It can also change the name of a state.
11. All India Services

• Through the All India Services such as the IAS, IPS, IRS, etc. the centre interferes in the
executive powers of the states. These services also offer uniformity in administration
throughout the nation.

12. Integrated election machinery

• The Election Commission of India is responsible for conducting free and fair elections at
both the centre and the state levels in India. The members of the EC is appointed by the
president.

13. Veto over states bills

• The governor of a state can reserve certain kinds of bills for the president’s
consideration. The president enjoys absolute veto. on these bills. He can even
reject the bill at the second instance that is when the bill is sent after
reconsideration by the state legislature. This provision is a departure from the
principles of federalism.
14. Integrated audit machinery
• the president of the country appoints the CAG who audits accounts of both the centre
and the states.
15. Power to remove key officials
• the state government or state legislature does not have the authority to remove certain
key government officials even at the state level like the election commissioner of a state,
judges of the high courts, or the chairman of the state public service commissions.
 Criticism of Indian Federal System
01. No Territorial sanctity
• The Territorial sanctity of the federating units which is a vital principle of a federal government is not allowed by
the Indian Constitution. The states can be re-organized and their territorial limits changed, cut short or enlarged
by the Parliament unilaterally without the consent of the concerned state or states.

02. The practice of appointment of the Governors by the President smacks of centralism
• The Governor enjoys their office during the pleasure of the President and they are expected to work as the
agents of the Union Government in the states. The action of some of the Governors in dissolving the state
government has been severely criticized.

03. Transform the federal constitution into a unitary

• The President is empowered to transform the federal constitution into a unitary one during the time of national
emergency. Under such circumstances, the Union Parliament shall have the power to make laws for the whole of
India.

04. Single Citizenship

• While in the U.S.A. an individual enjoys dual citizenship, that is the citizenship of his state and federal citizenship;
in India there is single citizenship throughout the country. Wherever in the country an individual might have been
from, he is regarded as an Indian citizen.
05. Power to make laws with respect to any matter included in the State List (Article 249)
• Parliament shall have the power to make laws with respect to any matter included in the State List, if the
Council of States declares by a resolution of 2/3 of its members present and voting that it is necessary in
national interest,”
• In case of inconsistency between the Union and the State laws, the Union Law shall prevail.

06. Weakness with respect to Fiscal federalism

• Fiscal federalism refers to the responsibilities betbeen centre and state related taxation and expenditure. Both
centre and state government can levy and collect taxes. But in our constitution more powers are vested with
the centre for imposing tax and centre has to determine the share of state in tax revenue.
• The states do not have much financial resources as centre have. In financial matters states always look for
assistance to the centre
 Theories of federalism
Four dominant theories of federalism Asymmetric federalism or asymmetrical
A. Executive, federalism federalism
B. Cooperative federalism, Is India has asymmetric federalism?
C. Competitive federalism
D. Collaborative federalism.
Four dominant theories of federalism

Executive, Cooperative
federalism federalism,

Competitive Collaborative
federalism federalism.
 A. Executive Federalism
The model of executive federalism combines parliamentary government with federalism (e.g., in Canada
and India).

The fusion of executive and legislative powers in the parliamentary system means that the
intergovernmental process occurs at the executive level.

It is based on the top- down, hierarchical power relationship between the national and sub-national
governments.

The term executive is used to highlight the lack of any meaningful role of legislatures or participation by
citizens or civic organisations.
In this system, government officials negotiate behind closed doors, thereby
strengthening secrecy at the cost of accountability.

Under the assumption of the pragmatic and flexible approach of government

actors, this type of federalism can deliver results by making it easy for the
national government to tackle interregional disparities, achieve a level of national
equality in basic public service delivery and social welfare, and facilitate the
movement of people in the country.
 B. Cooperative Federalism
Ever since the Modi government assumed office, the chant of ‘cooperative federalism’
has grown louder. Especially, after the creation of the National Institution for
Transforming India (NITI) Aayog
The cooperative federalism is characterized by an intricate framework of cooperative
arrangements among the levels of government.
Theoretically, the cooperative framework preserves the structural integrity of each
level of government while enabling them to exercise their autonomous powers “in a
cooperative manner.”
However, what remains behind the veil is the “assumption” that states are cooperative
servants and allies of the federal government.
This happens because under this model the national government places its superior
resources at the disposal of state and local governments for management of local
priorities.
In this situation, the hierarchical relation persists because the task of states is not
to assert autonomy but to carry out federal programmes and implement federal
mandates.

The central governments often invoke this concept to justify central government’s
high-handedness in the name of national interest or welfare of citizens.

W.H.Morris Jones, who coined the term ‘bargaining federalism’— held the view
that “Indian federalism was a kind of cooperative federalism where bargaining
took place between the centre and the states, but ultimately a solution came out
and both agreed to co-operate.”
Development of Cooperative Federalism
Post Independence in India
Cooperative in the 50s and 60s-
• First fifteen years after independence were marked by a democratically elected regime
with a comfortable majority coupled with idealism and freshness of hope having just
gained independence.

Confrontationist From 1960s To 1980s –

• The supremacy of the Centre broke the power of States and established a new balance
or rather, imbalance between the Centre and the States.
Cooperative in the 90s –
• The decade was marked by regime of coalition government of national and regional
parties at the centre which were cooperative in nature
Cooperative, Concomitant, Negotiatory and Opportunistic In the last decade –
• The current trends emphasize cooperation and coordination, rather than demarcation
of powers between different levels of government. The basic theme today is
interdependence.
Need for Cooperative Federalism in India
01. Multi Party System

• The states today have acquired sufficient political weight of their own through a pluralised
party system enabling individual states to embark onto bilateral negotiations with the
union bypassing the institutionalised bodies of collective policy framing that have proved
to be ineffective, thus lending a negotiator character to our federalism.

02. International Treaties

• India is making strides in the global sphere and the local governments that promote shared
partnership in development have come to be noticed today.
• Hence, whenever development programs or any other interests of states are touched by
international agreements, the well conceived demands of states should be met in order to
promote truly cooperative, coordinative and multi dimensional centre state relations.
03. Environmental factors

• Environmental Challenges of global nature like climate change do not

recognise state frontiers.
• Pollution and conservation issues reflect the uncomfortable tension between
decision making process of the governments at the centre-state –local levels.
• Disaster Management transcends inter-state boundaries too.

04. Terrorism

• Terrorism, militancy, organised crimes, problem of internally displaced

persons, refugees – all these require that the country as a whole comes
together and the institutional bodies under state governments help the
centre by collectively making available the necessary information and
resources.
05. Voice of Separatism
• The increasing voices of autonomy and separatism have vitiated the political and social fabric
of the federal structure.
• States are increasingly harbouring feelings of deprivation and alienation and have begun
viewing all problems from a narrow parochial outlook.
• This not only weakens the nation but also makes the land fertile for the growth of terrorism
and insurgency.
06. Globalisation
• Globalisation has reinforced the need for concurrence between the geographical, climatic,
environmental and technological diversities inter as well as intra states so that they may link
with global processes for viable and sustainable development and growth.
• The experiences felt at the global level are also being felt at the local level.
 C. Competitive Federalism

The competitive model is based on the public choice perspective, which presumes that
the government is a self-interested, Leviathan-like entity.

Thus, decentralisation must be designed to disarm the huge central government of its
monopolistic power to extract economic rent for itself; in its place, intergovernmental
competition and local governmental accountability to constituents should be promoted.

Generally, some forms of competition among units exist in all nations (e.g., to attract
labour and capital).
However, the competitive model of federalism (in a strict sense) will come to its
own only if the following principles are at work:

A. Subsidiarity

• Higher levels should undertake only those governance tasks that lower levels cannot
manage.

B. Fiscal equivalence

• Each government level must generate its own resources to finance its own tasks.

C. Exclusivity

• There should be an exclusive assignment of tasks to specific levels (no duplication).

D. Rule of origin

• There should be no impediments to free trade throughout the country.

 Steps toward Competitive Federalism
The acceptance of the 14th Finance Commission’s recommendations, apart from significantly
enhanced devolution ( devolution of 42% of the divisible pool to states during 20015-16 to
2019-20, against 32% suggested by the previous commission), enables states to design and
implement programmes better suited to their needs.

Competitive federalism is not yet embraced by all the states.

But a handful of states are clearly taking steps to strengthen their business environments,
including initiating difficult reforms on land acquisition and labour flexibility.

Federalism is no longer the fault line of Centre-State relations but the definition of a new
partnership of team India.
The Central government has promised decentralisation of power and
minimum interference in the State affairs.
• With the roll out of the GST, this federal structure is further cemented.
• Government has abolished Planning Commission and replaced it with NITI Aayog. One of
the mandates of the NITI Aayog is to develop competitive federalism. Under it;
• Share of states in central tax revenue has been increased from 32% to 42% after the
recommendation of the finance commission.
• States have freedom to plan their expenditure based on their own priorities.
• States would work with centre on a shared vision of national objectives.
• Restructuring of centrally sponsored schemes.
• Financial sector bailout programme under UDAY scheme.
• Swachh Bharat Ranking system.
• Most of the state now organizes investors meet to showcase facilities in their state to
attract business and investment. This has lead to improvement in business environment in
various states.
• State wise Ease of Doing Business ranking to build a huge sense of competition.
 Hindrances for Competitive federalism
01. Several issues such as trust deficit and shrinkage of divisible pools plague Centre-
State relations.
• On one hand the Centre has increased the States’ share of the divisible pool but in reality States are
getting a lesser share. The allocation towards various social welfare schemes has also come down,
affecting the States’ health in turn.

02. The socio-economic parameters and development of each State in India is

different
• While a few have made substantial progress in terms of employment, literacy and creating a conducive
environment for doing business and investments, there are a few which are lagging.

03. Varied economic patterns in different states.

• There are deficit states or the backward regions or the states under debt. Those states should not be
treated on par with the well-off states.
• The opposition of few well-off states with respect to revenue loss in implementation of GST
system points that there is a lack of will in participating in the process of competitive federalism.
04. Protested against the uniform approach in funding

• The states like West Bengal, Bihar, Orissa, and Assam have protested against the
uniform approach in funding because of their special situations in which the central
government has to provide special funds to these states. Without special funding
these states cannot imagine their participation in competitive federalism.

05. Wrong to assume that all the states would perform uniformly
in the process of development
• Though the states are provided with financial independence, it is a fallacy to assume
that all the states would perform uniformly in the process of development because
while some states have favourable factors like skilled labour, capital and
infrastructure, innovative service industries other states lagging behind.
 D. Collaborative Federalism

The collaborative model is based on four premises:

• A relationship based on partnership and relative parity exists between the
national and subnational governments rather than a hierarchical type.
• Responsibilities and interdependence among government levels significantly
overlap, which calls for joint decision making and collective action.
• Transparency and accountability towards people can be improved through
deeper engagement of civil society, non-governmental organisations (NGOs),
and other actors/stakeholders in intergovernmental policy deliberations.
• Solutions to intractable problems can be worked out through learning and
innovation in the complex and dynamic world of intergovernmental
interactions.
Comparing Collaborative and Cooperative Federalism
Collaborative and cooperative federalism both represent interdependent relations and are concerned with
the management of these interdependencies.

The difference is that cooperative federalism manages interdependencies within a framework of

hierarchical relations, whereas collaborative federalism entails joint management of interdependencies on
a non- hierarchical basis.

Collaborative model advances to a direct engagement with non- state stakeholders in a collective decision-
making process as equal partners.

The collaborative model combines the advantages of cooperative and competitive federalism while
keeping at bay their limitations stemming from venturing exclusively and excessively into either domain.

This model also steers clear of the difficulties caused by the presence of either a strong central government
or a suboptimally high level of local autonomy.

“Repeated interactions” are the key to the effectiveness of collaborative federalism.

 Asymmetric federalism or
Asymmetrical federalism
Asymmetric federalism or asymmetrical federalism is found in a federation or confederation in which
different constituent states possess different powers.

One or more of the sub states has considerably more autonomy than the other sub states, although they
have the same constitutional status.ie the division of powers between substates is not symmetric.

This is in contrast to symmetric federalism, where no distinction is made between constituent states.

Asymmetrical federalism can be divided into two types of agreements or arrangements.

• De jure asymmetry – resolves differences in legislative powers, representation in central institutions,
and rights and obligations that are set in the constitution.
• De facto asymmetry – reflects agreements which come out of national policy, opting out, and bilateral
and ad hoc deals with specific provinces, none of which are entrenched in the constitution.
Note on Bargaining federalism - W.H.Morris Jones

Morris Jones talks of federalism in India as an example of the concept of competitive

bargaining one illustration may be given from procedures on legislation.

The constitution prescribes that bills passed by state legislatures may on submission to the
Governor be refused assent or returned for reconsideration or reserved for the
consideration of the President and further that bills dealing with public acquisition of
property must be so reserved.

By convention, however, states send such hills to the center for examination and comment
in advance, so that the reservation procedure when reached is merely formal; some states
go further and submit in this way most bills which deal with subject on the concurrent list.
Bargaining federalism is also traceable in existence, formal as well as tacit, in
operation of various institutional agencies such as the Planning Commission
National Development Council, Finance Commission, Inter-State Council, Zonal
Councils and a host of statutory bodies for the adjudication of disputes with
respect to use, distribution and control of inter-state rivers etc.

The Indian Constitution envisages the appointment of a number of high level

commissions both permanent and ad-hoc for the specific purpose of reconciling
diverse and conflicting interests with the cooperation of Union and State
Government.
 Why is it said that India has asymmetric
federalism?
The main forms of administrative units in India are the Centre and the States. But there
are other forms, too, all set up to address specific local, historical and geographical
contexts.

Besides the Centre and the States, the country has Union Territories with a legislature,
and Union Territories without a legislature.

Just as the Centre and the States do not have matching powers in all matters, there
are some differences in the way some States and other constituent units of the Indian
Union relate to the Centre.
Until 2019, Article 370 made special provisions for the state of Jammu and
Kashmir as per its Instrument of Accession.

Article 371 makes special provisions for the states of Assam, Arunachal
Pradesh, Goa, Mizoram, Manipur, Nagaland and Sikkim as per their accession
or statehood deals.

Linguistic – Political Features:

• Although the Constitution did not envisage it, India is now a multilingual federation.
• India has a multi-party system with political allegiances frequently based on linguistic, regional
and caste identities, necessitating coalition politics, especially at the Union level.
Evidence in support of asymmetric federalism in
India
01. Even equals are distinct

• Puducherry and Delhi have legislatures, while the other territories under the Centre do not
have legislatures or a ministerial council to advise the administrator.
• Puducherry has legislative powers on any matter mentioned in the State List or the
Concurrent List, insofar as it applies to the Union Territory.
• Delhi, which has the same field, has three further exceptions: police, land and public
order are outside its purview.
• However, Parliament has overriding powers over any law made by the Assembly in the
Union Territories.
• Puducherry has one more unique feature. Despite being a single administrative unit, the
Union Territory is ‘non-contiguous’. That is, its territory is not limited to one extent of land.
• Besides Puducherry and its adjoining areas, it has enclaves located within other States:
Karaikal (within Tamil Nadu) Yanam (within Andhra Pradesh) and Mahe (within Kerala).
The case study of Jammu and Kashmir

• The foremost example of asymmetry among Centre-State ties was in the

way J&K related to India until August 6, 2019, the day the President
declared that its special status ceased to be operative.
• Under Article 370, the State was allowed to have its own Constitution, its
own definition of ‘permanent residents’, the right to bar outsiders from
holding property, and the privilege of not having any Indian law
automatically applicable to its territory.
• Indian laws had to be specifically permitted by its Assembly before it could
operate there. It was allowed to have its own Penal and Criminal Procedure
Codes.
• The President was empowered to notify, from time to time, the provisions
of the Constitution that could be extended to the State, with or without
modifications.
 Directive Principles of State
Policy (DPSP)
1. History of DPSP 6. Positive and Negative rights
2. Reflection of Preamble 7. Classification of DPSP
3. Features of DPSP A. Socialistic Principles
B. Gandhian Principles
4. Significance and Criticism of DPSP C. Liberal-Intellectual Principles
5. Conflict between DPSP and
fundamental rights
DPSP acts as a guideline for the state and should be taken into
consideration while coming up with some new policy or any law.

According to Dr B R Ambedkar, these principles are ‘novel

features’ of the Constitution.

DPSP has been taken from the Irish constitution and

enumerated in Part IV of the Indian Constitution.

DPSP aims to create a ‘Welfare State’= Establishing social and

economic democracy in the state.

DPSPs are non-justiciable.

 History of DPSP
The makers of the Indian Constitution were very much influenced by the Irish nationalist
movement and borrowed this concept of DPSP from the Irish Constitution in 1937.

The Nehru Report of 1928

• DPSP and fundamental rights have a common origin.
• The Report contained the Swaraj Constitution of India which contained some of the fundamental rights and
some other rights such as the right to education which were not enforceable at that time.

Sapru Report of 1945

• Divided fundamental rights into justifiable and non-justifiable rights.

Both the Fundamental Rights and the DPSP were enlisted in all the drafts of the constitution
(I, II and III) prepared by the Drafting Committee whose chairman was Dr. B.R. Ambedkar.
Reflection of Preamble

DPSP is ‘the kernel of the Indian Constitution’.

The expression “Justice – Social, economic and political”

that is mentioned in the preamble is the ultimate aim that
has to be achieved through the formulation of the DPSP.
 Features of DPSP
DPSP are not enforceable in a court of law, but these are backed by vox populi (voice of
the people), which is the real sanction behind every law in reality.

They were made non-justifiable considering that the State may not have enough
resources to implement all of them or it may even come up with some better and
progressive laws.

Consists of all the ideals which the State should follow and keep in mind while
formulating policies and enacting laws for the country.

Comprehensive economic, social and political guidelines or principles and tips for a
modern democratic State that aimed towards inculcating the ideals of justice, liberty,
equality and fraternity as given in the preamble.
Significance of DPSP
01. Moral ideals

• They constitute a moral code for the State but this does not reduce their value as moral
principles are very important and the absence of it may hamper the growth of a society.

02. Source of continuity in the Governance

• In a democratic system, the Governments change after regular elections and every new
government makes different policies and laws for the country. The presence of such
guidelines is really important because it ensures that every Government will follow the
set of principles in the form of DPSP while formulating its laws.

03. Positive directions for the State

• Helps in securing social and economical dimensions of democracy. DPSP are

supplementary to Fundamental Rights which offers political rights and other freedoms.
They both are nothing without each other as one provides social and economic
democracy and the other, political rights.
04. Measure the worth of a government and its working

• A Government which doesn’t consider these principles can be rejected on this

ground by the people in favour of a government which gives due importance to the
task of securing these Directive Principles in the state.

05. Manifesto of a Nation

• The deas and views which were there in the mind of the drafters while drafting
the constitution. These reflected the philosophy behind the making of the
Constitution and hence provide useful information to the courts in interpreting the
existing provisions in the Constitution and in coming up with better laws and
policies.

06. Very rigid in their meanings

• This helps the State in interpreting and applying these principles in accordance with
the situation prevailing at a given time.
07. DPSP as Interpretive Guides (Gautam Bhatia)

• SC treats the Directive Principles as constitutive of legislative

meaning: the maximum degree to which it could infuse directive
principles into the law without directly enforcing them.
• In 2013, for example, the Court invoked the Directive Principles in
determining the meaning of the phrase “public purpose” under
Article 282 of the Constitution.
• It held that the Tamil Nadu state government’s distribution of free
televisions was a valid “public purpose” under Article 282 because it
was in pursuance of the Directive Principles.
 Criticism of Directive Principles of State Policy
These principles don’t carry any importance as their violation can’t be challenged in the courts.

The Directive Principles are a mere declaration of the instructions which are to be observed and secured
by the State at will. but the Constitution neither makes them justiciable nor it mentions any limit to what
extent it can be secured.

These are neither consistently explicit nor properly classified. These appear to be a collection of
instructions which are only based on morals and a State can’t rely merely on morals for its working.

Several Directives lack clarity and they have been repeated at different places.
The Directive to push international peace and friendly relations among all the nations is just a
declaration but the real issue is the securing part of it for which nothing has been given.

Part IV includes some directives which are not complete in actual observation. The ideal is to
introduce prohibition but this ideal cannot be really and effectively realised. The states which
introduced prohibition had to scrap it later on.

Most of the Directive Principles are based on old and foreign philosophy which have lost its relevance
now.

Many critics hold that the Preamble should also enlists all these goals which are given under DPSP
and their description in Part IV has made things more complicated and complex than it was before.

Directive principles just create an impression about the usage of the legitimate power by the State
and the motive is to gain support through promise-making and not through inaction .
 Conflict between DPSP and fundamental rights
The Fundamental Rights are the rights which are enforceable by the Courts and any law
that is in contravention to the provisions mentioned in Part III are ultra vires.

On the other hand, the DPSP are not enforceable in any Court of Law and nothing can be
declared as void merely because it is against the provisions given under the DPSP.

Kerala Education Bill

• The court said that if a conflict arises between Fundamental Right and DPSPs, the harmony between
the two should not be disturbed, but if, even after applying the doctrines of interpretation the conflict
doesn’t resolves then the former should be upheld and given more importance to FRs over the other
i.e. DPSP
State of Madras v. Srimathi Champakam Dorairajan, 1951
• The Supreme Court held the Fundamental rights are superior to the DPSP saying that the Fundamental
Rights under Part III prevails over DPSP in case of any conflict between them.
Golak Nath case, 1967
• SC held that the provisions mentioned under Part III as Fundamental Rights cannot be
undermined just to implement the provisions given under Part IV which enlists some
important guidelines for the State in the form of the DPSP.
• The Constitution was amended in the year 1971 and through this amendment, Article 31C
was incorporated in the Constitution. It confers wider importance on the DPSP.
Minerva Mills case, 1980
• SC restricted this wide scope which was conferred on the DPSP under Article 31C by making
the following changes:
• It restored Article 31C to its pre-1976 position. A law would be protected by Article 31C only
in the case if it has been made to implement the Article 39 (b) and Article39 (c) of the DPSP
and not any of the other directive included in Part IV.

There is a fine balance in the Constitution between the DPSP and the
Fundamental Rights, which should be adhered by the Courts without
placing any of them as superior.
Positive and Negative rights- Difference in conceptualisation
as per Gautam Bhatia
01. Negative rights involve freedom from governmental (or private) coercion that would prevent an
individual from doing what she is otherwise minded to do;

Positive rights requires the government to take action in order to provide an individual something
she cannot get for herself.

02. Relatedly – Negative rights do not require policy choices; positive rights, on the other hand,
directly implicate economic prioritisation and budgetary allocations – i.e. “a broad redistribution of
society’s resources”.

03.Directive Principles as reflecting important governmental “goals”

• Ronald Dworkin argues that goals are particular end-states in the distribution of
resources, while a right is something that the government is not permitted to
infringe in its pursuit of its chosen goals.
3 distinct roles of DPSP in judicial interpretation (Gautam Bhatia )

01. Legislation enacted in service of the Directive Principles meets the “public interest”
threshold in a fundamental rights challenge (importantly, its reasonableness must then be
examined, and not on the touchstone of the Directive Principles).

02. If legislation is intelligibly susceptible to more than one interpretation, then the meaning
that corresponds more closely to the DPSPs is to be preferred over others (although, as we
discussed, the Court is yet to clarify the standard applicable to this enquiry).

03. The DPSPs play a structuring role in selecting the specific conceptions that are the concrete
manifestations of the abstract concepts embodied in the fundamental rights chapter.

This is the best way to understand the Court’s dictum that fundamental rights “ought to be
interpreted in light of the DPSPs.” There is thus a clearly delineated role for the Directive
Principles in constitutional analysis.
What makes something a right or a goal?
• As Dworkin himself observes, it depends on the constitutional scheme and the legal
framework of the polity in question. Providing adequate nutrition to all its citizens can be
framed as a goal, but it can equally well be framed as an individual right to food or
health. The goals/rights, or ends/means distinction, therefore, needs something else to
motivate it.

Part III embodies civil/political (or “first generation” rights), whereas

Part IV enshrines socio-economic, second-generation guarantees.

• it may be argued that positive rights are inherently vague and open-ended, and therefore
only fit for resolution through the political process. This objection, however, fails for
reasons of under-inclusiveness and over-inclusiveness. Public interest limitations on
negative rights, found in Constitutions all over the world, including the Indian, are as
open-ended as positive rights.
 Classification of DPSP

Socialistic Gandhian
Principles Principles

Liberal-
Intellectual
Principles
01. Socialistic Principles

Article 38 Article 39 Article 39 A Article 41

Article 42 Article 43 Article 43 A Article 47

Article 38- Social, Political and Economic Justice
• It directs that the State should secure a social order which
provides social, political and economic justice to all its citizens.
• Article 38(2) says that state shall reduce the inequalities faced
by the people on the grounds like income, status, facilities,
opportunities, etc.
• The 44th Amendment Act of 1978 added Article 38(2) in the
DPSP.
Article 39- Principles of policy
•All the men, women and citizens should have the right to an adequate means of
livelihood
•The ownership and control of the people over any material resources under the
community should be distributed as it is for the common good of the public;
•The functioning of the economic system should be such that the concentration of
wealth and the means of production don’t result in a loss common to all or which
causes detriment to the citizens;
•There shall be no gender discrimination, both men and women should get equal
pay for equal work. Example- Equal Remuneration Act (1976).
•The health and strength possessed by any worker, men and women, and the
tender age of children should not be abused and the citizens should not be forced
to enter and indulge into any occupation or profession which is not suitable for
their age or strength, not even out of any financial necessity or economic
backwardness
•To secure opportunities for healthy development of children- Added though 42nd
Constitution Amendment Act, 1976
Article 39A - Free Legal aid.

• It says that the State shall promote justice with the

aim of administering Justice on the basis of equal
opportunity, and shall provide free legal aid
through any suitable legislation or schemes which
State may think fit ,or, in any other way, so that it
could ensure that the opportunities for securing
justice are not denied to any citizen because of
economic backwardness or any other kind of
disabilities.
• Added though 42nd Constitution Amendment Act,
1976.
Article 41-Welfare Government
• It says that state shall make some effective provisions for
securing the right to work, etc. and in cases of unemployment,
old age, disablement or any other cases acting in its economic
capacity & development it shall provide public assistance.
• This article is employed as a tenet for numerous social sector
schemes like social assistance program, right to food security,
old-age pension scheme, MGNREGA, etc.
Article 42- Securing just and humane work and maternity relief.
• It says that state shall create some provisions so that the citizens get easy, just and humane conditions
for working.
• It shall also provide maternity relief for the women.
• Example -Maternity Benefit Act, 1961 (Amended in 2017)

Article 43- Fair wages and a decent standard of life

• It says that the state can endeavor to secure by appropriate legislation or economic organization to all the workers
employed in agricultural, industrial or otherwise, work, a living wage, conditions of work, ensuring a decent
standard of life and enjoyment of leisure and social-cultural opportunities and promote cottage industries on an
individual or cooperative basis in rural and remote areas of the country.
• This DPSP is also reflection of Gandhian principle.
• Example- New Labour Code bills 2020; The Minimum Wages Act (1948)

Article 43A - Participation of workers in management of industries.

• The State shall take steps, by suitable legislation or in any other way, to secure the participation of
workers in the management of undertakings, establishments or other organisations engaged in any
industry.
• Added though 42nd Constitution Amendment Act, 1976.
• Example- Industrial Dispute Act, 1947
Article 47- Nutrition, Standard of living and public health.
• State shall look into the matter of raising the level of nutrition and the standard of living
of its people and it is the duty of the State to keep a check on the improvement of public
health.
• Endeavor to prohibit the consumption of intoxicating drinks and drugs which are
injurious for health, except for medicinal purposes.
• This DPSP is also reflection of Gandhian principle.
• Example- National Health Mission, Mid Day Meal Scheme, etc.
02. Gandhian Principles

Article 40 Article 43 Article 43 B

Article 46 Article 47 Article 48

02. Gandhian Principles

Article 40- Organization of Panchayats

• State shall organize Panchayat system and should grant
them such powers which would be necessary for the
functioning as units of the self-government system.
• The 73rd and 74th amendments of the constitution which
are related to Panchayati Raj and Municipal Corporations
respectively, later ended up as the constitutionally backed
framework for the principle mentioned in Part IV.
Article 43- Fair wages and a decent standard of life

• State can endeavor to secure, by appropriate legislation or

economic organization, to all the workers employed in
agricultural, industrial or otherwise, work, a living wage,
conditions of work, a decent standard of life and enjoyment
of leisure & social-cultural opportunities and promote
cottage industries on an individual or cooperative basis in
rural and remote areas of the country.
Article 43B - Promotion of cooperatives.

• It says that state shall endeavor to promote the management

of the co-operative societies to help the people who are
engaged in the same.
• Handloom Board, Handicrafts Board, Coir Board, Silk Board,
etc. have been set up for the development of cottage
industries in the country.
• It was inserted by the 97th amendment act in 2011.
Article 46- Protection of SCs, STs, weaker sections from exploitation
• The State shall promote with special care including the educational and economic
interests of the weaker sections of the society i.e. the SCs and the STs and shall
make provisions to protect them from all forms of exploitation which includes
social injustice.
Article 47- Nutrition, Standard of living and public health

Article 48-Scientific agriculture and animal husbandry.

• State shall endeavor to organize agriculture and animal husbandry using modern
methods and scientific techniques which make people more advanced and helps
in earning their livelihood easily and State shall take some progressive steps for
preserving and improving the existing breeds and prohibiting the slaughter of
cows and other cattle.
• This Article is also an Liberal-intellectual Principles
03. Liberal-intellectual Principles

Article 44 Article 45 Article 48 Article 48 A

Article 49 Article 50 Article 51

Article 44 -Uniform Civil Code
• There should be a provision for the
citizens to secure a Uniform Civil
Code throughout the territory of
India in order to simplify things and
reduce ambiguity in the laws which
makes it more complex than it
actually is.
 Debate on Uniform Civil Code (UCC)
The debate on uniform civil code (UCC) revolves around 3 issues
1.Secular nature of Indian State
• According to those favour UCC, India will become secular in the true sense, only when
there is a UCC. UCC is based on the idea of Universal citizenship and the understanding of
secularism as religious neutrality.
2.National Integration
• According to the supporters of UCC, as longas the different communities countries to
practice different personal laws. Special right give to then they will continue to remain
conscious of their separate identities and will never average as a strong Nation.
• Gender Justice
• According to Feminists UCC will result into gender Justice. It will help in realising the
constitutional ideals of
• Equality Before Law
• Human Dignity
The debate on UCC in the country dates back to the constituent
assembly, Leaders like Hansa Mehta ; Rajkumari Amrit Kaur K.M. Munshi
favoured the introduction of UCC

Members of the minority like Ismail Sahib Pocker Sahib, strongly opposed
UCC.

Pundit Nehru’s Ambedkar favoured UCC.

However, Ambedkar was realistic enough to understand that conditions
are not conducive, Hence, he wrote that “once conditions become
conducive, UCC can he introduced.
 UCC is a European Concept
In 17th century Europe, it is linked to the process of modernisation and secularisation in the west.

Basis of secular nationalism.

• The experience of the 30 years’ war forced these countries to roll back the religion and to establish Solidarity.

European nation status accepted the principle of sovereignty of the state rejecting the sword of the Hope Church.
• Hence, state became the supreme institution to determine law. There has been no limitation on the power of
law making by the state
HOBBES,- Liberty is where law is silent
• Freedom to conduct life according to its own way was dependent on the will of the sovereign. Hence, in these
countries, even the laws governing family, marriage, divorce, inheritance, so called personal laws came within
the scope of legal sovereignty of the state.
John Locke- In these countries, religious freedom means freedom of conscience
• It does not involve freedom to practice, profess & propagate religion.

Thus, the European Neutrality led to UCC. (in the public sphere) state – uniform laws irrespective of religion
Status of Codification of Muslim Personal laws

The 1937 Act prohibits the state from intervention. As per the religion,
Muslims are not supposed to live under man made laws.

However, in many Muslim countries, there is a codification of laws. But the

issue is that they are Islamic states.

Within Islam, there are different sects within each sects, there are different
schools, of interpretation. Hence, even when the community goes for
codification, they have to first arrive at the consensus among themselves.
 Judiciary over the debate on the Uniform Civil Code
Shah Bano Case (1985)
• Supreme court had declared that the Muslim women are eligible to get maintenance in case of divorce at par
with Hindu women, which means that they can get maintenance even after the Iddat period (after Iddat-
maintenance used to be by community blood relating of women see if legist overreach/exec. Overreach

The Parliament had passed Muslim Women Protection of Rights on Divorce Act 1985
• The act restored the earlier position where Muslim women would got maintenance only for the iddat period by
the husband.

Shayara Band v/s Union of India, 2017

• Supreme Court has declared that talaq –e- biddat is not the essential practice of Quran. Means that state in
India is changing).
• Doctrine of eclipse applies but law doesn’t end
• P.B. Mehta said Indian Judiciary is self-perpetuating institutions
• Opportunities otherwise unnecessarily, it won’t conflict with legislative
• SC gave the judgement just to build its image – not really because of concern for Muslim women.
• The GOI had passed a bill in Lok Sabha Muslim women (Protection of Rights on Marriage) Bill, 2017 and also
an ordinance has been promulgated for the same (to bypass his Rajya Sabha) ordinance – not an executive
order it is a legislative power of president.
 Will the Goa model work?
Goa is often heralded as a model state, the only one which has a Uniform Civil Code, so
it’s interesting to look at its experience.

Muslims, Hindus and Christians in the state are bound by the same family laws which
retained the 1867 Portuguese civil code even after its merger with India in 1961.

lawyer-activist Albertina Almeida says it doesn’t automatically ensure equality.

• “Uniformity in law does not necessarily mean there is no discrimination. We have
some provisions that are uniform in discrimination. The management of the property
is the privilege of the male spouse in Goa and it is uniformly applicable to all
communities,” says Almeida.
 UCC and Secularism
Uniform Code is presented to Indians is mostly within the frame of ‘Secularism’, in other words as if it is
only to do with ‘minority appeasement’.

the ‘Secularism’ frame, naturally, brings in politics.

• The one active voice standing for a Uniform Civil Code has been the Bhartiya Janta Party. It has been one of their
three key planks, besides Article 370 and Ram Mandir.
India’s constitutional ethos also protects plurality.
• Its objective is not to produce homogeneity. Uniformly distributed rights are desirable. But no one will say the
‘Hindu Undivided Family’, with the rather patriarchal notion of a ‘Karta’ (the oldest male as its head, as codified at
present), presents any equitable ideal.
Hindu Code Bills in 1955-56
• The showdown between Nehru and Rajendra Prasad made headlines.
• The first Lok Sabha passed the Hindu Code Bills in 1955-56, in the form of four separate acts, the Hindu Marriage
Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act.
• The resentment of the Hindu right-wing, for the ‘exception’ that was made for the Muslim community, goes back to
that even though the new Hindu laws too were rather modest when seen in a reformist, gender equity light.
Law commission on UCC, 2018

“UCC is neither desirable nor feasible at this stage.

Former law commission chief, Justice B.S. Chauhan is of the opinion that the
government should start working on reforms of family laws across
communities.

It is going to be a long process and the government should proceed carefully.

Bringing in a unified law for tribal will be legally difficult.
What is the status of Indian state modifying personal law?

Britishers codified personal laws related to the Christians and Parsis.

They tried to codify the Hindu personal laws (Hindus, Jains, Buddhists, and Sikhs). But there was a strong opposition by
Hindus. (Note: Either make Parties represented law to come from communities Hinduism

Upper caste Hindus even opposed Ambedkar’s attempt to modify the Hindu personal laws in the form of Hindu code Bill

Hindu personal laws have been gradually modified and codified. (Note: Hindus did not accept Britishers modify then
personal laws how can you expect Muslim except)

Recently, a separate law known as Anand Marriage Act has been codified for the Sikh community

So far, the codification of Muslim laws yet to the done remains. As per Muslims personal law Shariat application Act,
1957. State shall not intervene in Muslims personal laws.

A Special Marriage act also exists. Person following and religion can option for special marriage Article (marriage has
become on civil basis, rather than on religious grounds).
 Opinion of Scholars
Opinion of feminists scholars
• Flavia Agnes (Jurist)- UCC is not a Silver bullet that will bring Justice automatically.
• Codification of Hindu law is not a guarantee that women have achieved equality
• Constitution does not envisage uniformity in the Indian constitution, personal laws are in the concurrent list- This
itself means their Constitution permits diversity.
• Different ethnic communities (schedule – VI) are allowed to practice their customs & traditions.

Niveditha Menon – (political scientist)

• Any reform of Muslim personal laws should not be based on ‘Self-assured arrogance of Hindu customs &
traditions. In many ways, Muslim personal laws are more advanced that Hindu personal laws.
• Example: Among Muslims, all wives have equal status. Bigamy is more in practice among Hindus. Uptil recently
the second wife had no protection.

Prof. Faizan Mustafa

• He also feels existing gaps in the realm of personal laws must be addressed in a community-specific way first.
• “A committee of experts is needed to look at all these questions first. They should create a uniform law for one
community, and then try to create a code based on good provisions of different personal laws,” he says.
Article 45- Provision for free and compulsory education for the children

• The State shall make laws to provide free and compulsory education for the children until they are 14
years old within a period of 10 years from the date of commencement of this provision in the
Constitution.
• The 86th Amendment 2002, changed the subject of Article 45 in the DPSP and brought it within the
ambit of the fundamental rights mentioned in Part III as Article 21-A has been made for the children
between the age group of 6-14 years of age.
• The same article was previously a directive principle which says that the State should take care of the
children who are below 6 years of age.

Article 48- Organisation of agriculture and animal husbandry.

Article 48A- Environment and Wildlife
Protection
• State shall endeavour to protect and improve the
environment and surroundings.
• Safeguard the forests and wildlife of the country
to make the environment sustainable.
• Added though 42nd Constitution Amendment
Act, 1976.
• National Forest Policy 1988; Draft National
Forest Policy (NFP) 2018

Article 49-Protection of monuments and

places and objects of national importance
• It shall be the duty of the State to protect every
monument or place or any object of historic or
artistic interest which has some national
importance, from any form of disfigurement,
destruction, etc.
Article 50- Separation of Judiciary from the Executive
• There should be a line between the judiciary and the
executive body of the Government in the public services
of the State as it makes it easier if both do not interfere in
each other’s work and function independently.
Article 51- Promotion of international peace and security.
• The State shall endeavour to —
• Promote international peace and security;
• maintain friendly and honourable relations between nations;
• foster respect for international law and treaty obligations in the
dealings of one person with another for maintaining harmony
between the nations and
• encourage settlement of international disputes by the method of
arbitration.
 Perspective on Constituent
Assembly
• Evolution of Constituent Assembly;
• Salient Features of the Working Process of the Constituent
Assembly;
• Criticism of the Constituent Assembly

Aristotle : "To live by the rule of the Constitution ought to be considered not
slavery, but salvation".
 Evolution of the Constituent Assembly
The historical origin of the Constituent Assembly is linked with the growth of the
National Movement in India.
• The Constitution of India itself is the product of our freedom struggle whose goal was to attain
nation's independence.
• However, the dawn of the Twenty Century came with a new hope for India and this was the hope
for Swaraj. As the representative of Indian Public opinion, the Congress passed the Swaraj
Resolution in 1905.
• Government of India Act, 1919 was a great landmark in the Constitutional History of India. It
makes the beginning of a responsible government in the country. (Granville Austin)
• It was the question of Self Government which brought large number of delegates from all parts
of the country at the Congress session of 1916 at Lucknow when both the wings of the Congress
were present.
• The militant revolutionary activities and closeness of the liberal and radical Congress leaders
opened the eyes of the British Government to realize the fact that the people of India would not
be satisfied until Self Government is allowed to them.
 Government of India Act, 1919
The idea of a framing of Constituent Assembly whereby Indians themselves might frame a Constitution
for free and independent India was implicit in the opposition to 1919 Act.

• The first attempt at introducing a representative and popular element was made by the Montague
Chelmsford Report which led to the enactment of the Government of India Act-1919.
• The Morley Minto Reforms which came in India in 1909 failed to satisfy the aspirations of the
Indians as they did not establish Parliamentary system of government in the country.
• First definite reference to a Constituent Assembly for India though not in specific words or under
that particular name was made by Mahatma Gandhi in 1922 soon after the inauguration of the
Government of India Act.
• Government of India Act, 1919 makes the beginning of a responsible government in the country.
• By 1915, when the British Government was badly engaged in First World War, both the liberal and
Radical Congress leaders came near and joined their hands together with the efforts of Annie
Besant who favoured self Government in India.
• The Montague Chelmsford Reforms proposals declared in August 1917 that the 'gradual
development of self governing institutions with a view to progressive relations of responsible
government in India as an integral part of the British Empire.
 Nehru Report

The Report was based on the principle of Dominion status with full responsible
government on the Parliamentary pattern.
• It asserted the principle that sovereignty belongs to the Indian people
laid down a set of fundamental rights and
• Provided for the federal system with maximum autonomy granted to
the units but residuary power vested in the federal Lower House and
the provincial legislatures with reservations of seats for minorities in
certain cases for limited period.
• From the Report it appears that the Indian leaders were quite clear in
their mind even in 1928 as to what type of Constitution they wanted for
a free India.
 Government of India Act, 1935
Prior to this Act the Constitutional structure of the government was unitary. This Act
has
Themade the
Act has distribution
made of power
radical changes amongst
in the policy in twothree organs for first time.
respects:
(1) This Act has introduced a federal form of government in the place of the unitary form which
was the British policy since long.
(2) The provisions of the Act established a federation to which the native states of India were to
accede.
•The Act of 1935 comprised three organs namely Federal Executive Federal Legislature and the
Federal Judiciary, partial responsibility at the centre, established provincial autonomy and was aimed
at forming an All India Federation

It gave foundation of federal Parliamentary democracy.

There were several provisions in the Government of India Act 1935 which served as
the basis of the Indian Constitution after Independence.
Congress Faizpur Session and Demand for Constituent Assembly
The demand for a Constituent Assembly for framing a Constitution was repeated by Congress.

The Congress declared that it stood for a genuine democratic state in India where political power would be
transferred to the people as a whole and the government would be under their effective control.

Such a state could only come into existence through a Constituent Assembly elected by adult suffrage and
having the power to determine finally for the Constitution of the country.
• Faizpur session passed two forceful resolutions:
• 1. Elections and the Constituent Assembly- firmly repudiated the right of any external authority to dictate
the political and economic structure of India and retreated the demand for a Constituent Assembly.
• Constituent Assembly elected by adult suffrage and having the power to determine finally the
Constitution of country.
• 2. An All India Convention of Legislators. The first resolution firmly repudiated the right of any external
authority to dictate the political and economic structure of India and retreated the demand for a
Constituent Assembly.
• frame a Constitution in which the rights of accepted minorities would be protected to their satisfaction
and in the event of some matters relating to minority rights not being mutually agreed to, they can be
referred to arbitration.
Jawaharlai Nehru said that what was contemplated in Congress resolution was that government
should first declare India independent and then call a Constituent Assembly.
 August Offer, 1940 and Constituent Assembly
This offer was published by lord Linlitligt, the then Viceroy and (Governor General of India on behalf of the British
Government.
• Constitutional issue could not be decided at a moment when the national life is engaged in a struggle for
existence but after the war a representative Indian body should be set up to formulate a new Constitution and
in the meantime the British Government would welcome and assist any efforts to reach agreement as to the
form and operation of the Constitution making body and as to the principles of the Constitution.
• Again the Cripps Mission has repeated this offer along with other proposals but it was rejected as a post dated
cheque on failing bank.

British Government has rejected the Indian demand for Constituent Assembly and on basis of its self determination.

Main features of the August offer were:

• (1) Fully responsible Government with dominion status soon after the war.
• (2) Formation of a Constituent Assembly acknowledging the right of the Indians to frame their own
Constitution.
• (3) Appointment of some prominent Indians as members of the Executive Council of the Viceroy and
establishment of a war advisory committee and;
• (4) Assurance to minorities that the government would not agree to any system of government whose authority
in directly denied by large and powerful elements in India's national life.
 Cripps Mission Plan: 1942
Mr. Churchill the then Prime Minister of England announced to send Sir Strafford Cripps, a prominent
member of House of Commons to India. The purpose of the Cripps Mission was to negotiate with
Indian leaders on the Constitutional settlement.

The Cripps Mission Plan had two objectives-

• one was to give some more autonomy to the Indians and

• to create a new Union with full status of dominion with a right to secede from the commonwealth.
The plan also agreed to allow to set up a Constituent Assembly after cessation of hostility.
The most sinister design of the plan was to create ground for creation of Pakistan as an independent state and
include the Indian states either to merge with the independent dominions or to follow their own independence.
• The Plan carried with them the germs of partition of India and British designs to continue ruling
over this country by resorting to divide and rule policy.

Nehru said - "the whole conception on which those proposals are based would lead to the break up of India with
British armed forces guarding the princely states and British power interfering with freedom of new Indian Union
and encouraging disruptive tendencies.
 The Cabinet Mission Plan: 1946
After the end of Second World War that the British Government through the cabinet mission accepted the demand for
establishment of a Constituent Assembly for India.

• Having Failed to reach an agreed solution the Mission presented a scheme of its own, laying down the principles and
procedure for framing the future Constitution of India.
• The Mission realized that the most satisfactory method would have been by election based on adult franchise, but
that would have led to wholly unacceptable delay in the formulation of the new Constitution.
Regarding thepracticable
• The only organization and powers
course of the
according Constituent
to them Assembly,
was therefore the Cabinet
to utilize Mission
the recently plan laid
elected down the
provincial following
Legislative
principles:
Assemblies as elected bodies.
•There will be 389 members in the Constituent Assembly.
•There will be three categories of electorate.
•British Indian would be divided into three groups.
•The representatives from British India were to be indirectly elected by the provincial Legislatures by a system of proportional.
representation
Muslim League was single
nottransferable vote the
satisfied with system.
election and they want to demand a separate Constitution for Pakistan,
therefore, they have passed a resolution in which they have decided to withdraw its earlier acceptance of the Cabinet
Mission Plan and the boycotted the Constituent Assembly.

League reiterated that it would never participate in any single Constitution making body and their demand was two
separate Constitution making bodies for people of Pakistan and Hindustan.
 Lord Mountbatten and His Plan
The plan for partition of India was lastly prepared by Lord Mountbatten.
According to this plan, India was divided into two dominions India and Pakistan.
• The British Parliament passed the last Government of India Act, which did not prescribe any
Constitutional provision save the provisions how the powers were to be transferred and which
territories were to be possessed by each of the Dominion.
• It is also mentioned that there would be two Constitution Assemblies one for India and another
for Pakistan to frame the Constitution for their future rule.
• The Constituent Assembly which already been formed for undivided India was divided and the
Constituent Assembly meant for India assumed the responsibility to frame a separate
Constitution for divided India.
• The Constituent Assembly minus the Muslim League member restarted the work.

The Constituent Assembly of India then consisted of about three hundred

members including the representatives of the States acceding to India.
 Indian Independence Act, 1947
The life of the Act was till such time as Constituent Assembly for each of the Dominions did not supersede it by
its own legislation. Assembly for each of the Dominions did not supersede it by its own legislation.
• It gave unlimited powers to Constituent Assemblies to adopt any form of the Constitution.
The Governor-General of either Dominion was empowered to promulgate Ordinances to meet emergencies
as provided under the Government of India Act, 1935.
• Such ordinances were to remain in force only for six months until superseded by an Act of the Dominion Legislature.
• The Governor-General was, however, invested with plenary powers until March 1948, to issue orders for the effective
implementation of the Indian Independence Act, 1947 and the division of the assets between the two Dominions, to
adopt or modify the Government of India Act, 1935 and to remove any difficulties that might arise during the
transitional period.
• No Act of British Parliament passed on or after August 15, 1947 was to extend to either of the Dominions as part of
the law of that Dominion unless it was passed as a law of the Legislature of the Dominion.
• The most epoch-making effect of the Act was that India no longer remained a dependency of British Empire.
• It empowered the Governor-General of each of the two Dominions to make necessary omissions, additions or
modifications in the Government of India Act, 1935 and the Orders-in Council, Rules and other instruments made
there under till March, 31, 1948.
Constituent Assembly as established in 1946 according to the Cabinet Mission Plan was not a sovereign body.
• Its authority was limited both in respect of basic principles and procedure according to the Indian Independence Act
the Constituent Assembly become a sovereign body and all limitations imposed upon it under the cabinet mission
plan were lifted.
 Composition of the Constituent Assembly
There were two types of the members - elected and nominated. The provincial Legislative Assemblies were
empowered to elect members for the Constituent Assembly while the representatives from the Indian States
were nominated by their respective rulers.

• However, it was a Congress dominated body because it was Congress which had majority in the provincial
legislature.
Hence, the Assembly had no viable opposition. Though the Assembly had no directly elected
representatives because the existing situation did not permit to go for election, the members present in it
were the people of wisdom and Assembly represented almost all shades of public opinion, comprising over
thirty schedule members.
• The Constituent Assembly also included sections of Christians, Anglo Indians and Minority Community.
• Women also participated in Constituent Assembly and some of prominent female personalities of the
Constituent Assembly were Vijay Laxmi Pandit, Sarojini Naidu.
Committee was adopted in the form of a resolution which, inter alia outlined the functions of the Constituent
Assembly as
• continuance and completion of the work of Constitution-making; and
• legislation for the Dominion until a Legislature under the new Constitution came into being.
Salient Features of the Working Process of the Constituent
Assembly

They skilfully selected and modified the provisions that they borrowed,
helped by the 'experts' among their number and the advice given by
ministries of the Union and Provincial Governments.

The Assembly members also applied to their task with great effectiveness
two wholly Indian concepts, consensus and; accommodation.
• Accommodation was applied to the principles to be embodied in the
Constitution.
• Consensus was the aim of the decision-making process, the single most
important source of the Constituent Assembly's effectiveness.
 01. Decision-making by Consensus
According to Austin, "Consensus thus had a general appeal in the Assembly; to the leadership an
ethical and effective way of reaching lasting agreement and to the rank and file as an indigenous
institution that suited the framing of an Indian Constitution."

Consensus approach was adopted in a variety of ways.

• Most important; among them were the Congress Party meetings where each provision of the Constitution was
subjected to frank and searching debates and whose approval was in fact as important as that of the
Assembly itself.
• Everyone elected to the Assembly on the Congress ticket could attend meetings, from party stalwarts to non-
congressmen like Ayyar, Ambedkar and N.G. Ayyangar, who were brought into the Assembly because the
leadership believed that their talents should not be wasted.

The Primary, examples of decision-making by consensus was perhaps the federal and language
provisions

The language question strained the Assembly's decision-making machinery to the utmost.
02. The Principle of Accommodation

According to Austin, the second of India's original contribution to constitution-making was the
principle of Accommodation - the ability to reconcile apparently incompatible concepts.

• India's constitutional structure is a good example of the principle of accommodation on

matters of substance.
• It has reconciled the federal and unitary system, membership of commonwealth and
republican status of Government, Provisions for Panchayati Raj with the need for a strong
Central Government.
 03. The Art of Selection and Modification
According to Austin, the Constituent Assembly had discovered a new principle - the
art of selection and modification.

The Assembly was not merely imitative, the borrowing from different political
systems did not relieve the Assembly of choice and that the borrowed provisions had
to be adopted to suit Indian conditions.
• One example of selection and modification is the method of Constitutional amendment.
• The three mechanisms of the method devised by the Assembly have made the Constitution
flexible while at the same time protecting the rights of the States.
• They have worked better than has the amending process any other country where federalism and
the British Parliamentary System jointly form the bases of the Constitution.

In brief, the Assembly selected and modified the provisions from other Constitutions
with a great deal of professional help.
Criticism of the Constituent Assembly

Shri Jaya Prakash Narain referred to it as "a restricted and curbed Constituent
Assembly" a creation of the British imperialism and so unable to bring freedom
to the Country.

Churchill said that the Assembly represented "only one major community in
India". It was "a body of Hindus".

One of the most important drawbacks of Constituent Assembly was that no

part of the Constitution represents the ancient polity of India, it's genius and
spirit of it's hallowed and glorious tradition
01. Congress Domination

The Assembly was the Congress and the Congress was India. The Congress had a, built-in-majority of 69
percent in the Assembly and after partition, the Congress majority jumped to 82 percent.

Prof. Shibban Lai Saxena - "The Congress party meetings became meetings of the real Constituent
Assembly, and this real Assembly became the mock Assembly where discussions arrived at by the
Congress Party meetings were registered."

As Dr. Ambedkar said, "It is because of the discipline of the Congress Party that the Drafting Committee
was able to pilot the Constitution in the Assembly with the sure knowledge as to the fate of each article
and each amendment. The Congress party is, therefore, entitled to all the credit for the smooth sailing
of the Draft Constitution in the Assembly."'
 02. Was it a Sovereign Assembly?
The Constituent Assembly was meeting with the permission of the British Government and a fourth of
the nation was represented at the Assembly's deliberations. Had such a body any power or authority of
its own? Could it speak and act for India? Was it sovereign?

Maulana Azad, Nehru and Prasad believed that it was sovereign because the Assembly's authority came
from the people of India although they recognized that the Cabinet Mission Plan placed certain
limitations on its activities.
The Assembly gave its own answer to these questions in its Rule when it arrogated to itself the authority
to control its own being:
• "The Assembly shall not be dissolved except by a resolution assented to by at least two-thirds of the
whole number of members of the Assembly.”
• "The Indian Independence Act passed by the British Parliament came into effect on 15 August, 1947,
giving legally to the Constituent Assembly the status it had assumed since its inception.
The
• Indian Independence
The Cabinet Act of
Mission Plan 1947 made
became it "the and
outmoded, Sovereign Constituent
the Constituent Assembly
Assembly for India".
settled downPt.
to Nehru
draft
described it, on Constitution.
free India's the midnight of August 14, 1947, as "a sovereign body representing the sovereign people
of India.”
03. A Hindu Dominate Body

British leaders like Churchill and Lord Simon named it as a Hindu Body representing the interests of
the Hindus alone.

Dr. Rajendra Prasad condemned this charge as baseless and irrational. He pointed out the except
the representatives of the Muslim League, the Constituent Assembly of India represented all the
communities and interest.

The minority communities were fully represented in the Assembly, usually by members of their
own choosing. The Indian Christians had seven representatives in the Assembly, the Anglo-Indians
Three and the Parsis Three and so on.

After partition, when the composition of the Assembly had become settled, the minorities had 88
of the 235 seats allotted to the Provinces, or 37 percent of the Provincial membership.
 04. An Unrepresentative Body
Constituent Assembly was that it had not been directly elected by the people on the basis of universal
adult franchise.

Socialist and Communist leaders of India attacked the unrepresentative character of the Constituent
Assembly.
Even if there had been direct elections, the result would have been the same. The same persons who
happened to be members of the Constituent Assembly would have been elected by an overwhelming
majority.
The representative character of the Assembly is further proved the fact that it Included all the prominent
leaders of major political parties of India.
• Dr. Ambedkar represented the depressed classes,
• Hansa Mehta represented the All India Women Conference, the landlords of India were represented
by Maharaja Darbhanga, and
• the Hindu Mahasabha was represented by Dr. Shyama Prasad Mukerji.
• Frank Anthony represented the Anglo-Indians and Indian Christians were represented by H.C.
Mukerji. So was the case with Sikhs andthe Muslims.
 05. Dominated by the Legal Luminaries
Then another criticism which is made against the Constituent Assembly is
that it was an Assembly which was "dominated only by the politicians and
lawyers.
• It did not give much representation to other sections of Indian Society. The net result was that
this domination gave the country a very bulky document.
• According to some critics the Constitution of India is a lawyer's paradise.

All said and done, the fact remains that the Constituent Assembly was
guided and directed by the top leaders of the Congress. Like Nehru, Patel,
Prasad, Azad and Munshi dominated the scene. Although indirectly elected
and therefore not responsible to the mass of Indians, the Constituent
Assembly was a highly representative body.
 Parliament System of
Government
• Basic concepts of Democracy • Parliamentary System in
• Different models of India
Democracy • Comparison with the British
• What is Parliament? System
• Chief Characteristics of • Outstanding features of our
Parliamentary System Parliament
• Advantages of Parliamentary
System
 Introduction
Many types of democracies e.g. liberal democracy, popular democracy, guided democracy, proletarian
democracy and so on.

The word Democracy (Greek: demos=people) means a state wherein the supreme power belongs to the
people or to their representatives.

Abraham Lincoln described democracy as the “government of the people, by the people and for the
people“

Parliament is the chief instrument through which that power is exercised.

Austin Ranney says the working definition of democracy may be regarded as “a form of government
organized in accordance with the principles of popular sovereignty, political equality, popular consultation
and majority rule"
 Popular

Self- Basic concepts of Sovereignty

government. Democracy

Equality
 DIFFERENT MODELS OF DEMOCRACY
01. Communist Model
• The followers of Marx and Lenin regard the Communist model as only legitimate democracy.
• The core of this conception is a regime in which an action of Government always advances the real
interests and welfare of the masses. Here democracy is essentially a matter; of what Government
does; not of how Government decides what to do
• The Chinese Communist model of the democracy is very similar to that of former Soviet Union
version
02. Participatory or Direct Model
• 'Demos' means the people, and 'Kratos' means power. In Athens at the time of Pericles, all important
decisions were made directly by the ekklesia, the general face to face assembly of all the citizens.
• Athenian democracy had two prime qualities:
• (i) popular control of public decisions and
• (ii) maximum popular participation in making the decisions and in holding public office.
• Switzerland represents direct democracy in the present century. The same may not be feasible in a
country covering wide geographical area with a large population.
03. Indirect Model
• In a country like U.S.A., U.K. or India, it is not possible to adopt direct model of democracy, as it is
impossible to ascertain the will of the people on every issues through referenda.
• In such countries 'indirect' model of democracy operates i.e. the people choose the representatives who
rule the country on their behalf.
• The idea of election and choice of representatives give birth to party-system and a majority party is
allowed to administer the country and therefore it may also be termed as majority government.
• Indirect democracy may function either through the parliamentary executive (like United Kingdom) or
non-parliamentary or fixed executive (like United States of America).

Difference between Parliamentary system and Non- Parliamentary system

• Parliamentary system is more responsible than the non- parliamentary system but they also differ as to
the time and agency for assessment of their responsibility.
• Under the non-Parliamentary system, such as the one that exists in the United States of America, the
assessment of the responsibility of the executive is periodic. It takes place once in two years. It is done by
the electorate.
• In England, where the Parliamentary system prevails, the assessment of responsibility of the executive is
both daily and periodic.
What is Parliament?

Parliamentary Government has been defined as “Government by talk” or more

precisely, “control of Government by talk”.

The word “Parle” is a French word and it means “Talk”. Parliament is often
described as a mere “Talking shop”.

In India, the Parliament consists of the President, Lok Sabha and the Rajya
Sabha.

All three functionaries join together to complete the actions of Parliament.

 Chief Characteristics of Parliamentary System
01. Powers are centered in the Parliament
• The Legislature takes the responsibility of government.
• The executive is divided in two parts- Head of the state i.e. Monarch or the President, and the head of the
Government i.e. Prime Minister.
• The former, is the titular head and the latter is the real executive head. Relationship between the two has been
regulated in India by the law of Constitution while in England it is left to the operation of flexible conventions.

02. The head of the State appoints the head of the Government.
• In case of Majority Parliamentarianism, the President or the crown has no option but in minority Parliamentarianism
the President or the crown may enjoy prerogative in this matter.

03. The head of the Government has full say in appointment of his Ministry.
• Ministers are formally appointed by the crown but Prime Minister alone is responsible for the composition of the
Ministry.

04. The Ministerial responsibility is collective.

• It indicates both the cause and the effect of the cabinet solidarity. The Government can remain in office as long as it
enjoys the confidence of popular house. (Article 75 of Indian Constitution)
• Collegiate Nature of the executive indicates that a decision making process has been shifted to a collective body.
06. Ministers are usually members of the Parliament. Indirect Relationship
between the government
and the Electorate
07. The head of the Government may advice the head of the State to dissolve
the Parliament.
Government
08. There is a mutual dependence between the government and the
parliament.

09. The government as a whole is only indirectly responsible to the electorate. Assembly

10. Though the ultimate power to control and supervise the executive rests with
the Parliament, in practice, it is the Prime Minister who has become all
powerful.
Electorate
This system does not represent truly the principle of separation of powers.
There is no separation of personnel between the executive and the legislature
 Parliamentary System in India
Democracy in Ancient India
• The terms Sabha and Samiti which were first invented in the Rig Veda, indicated the House of the Elders—the
Upper House—and the general Assembly of the people respectively.
• The Atharva Veda described these two institutions as the twin daughters of Prajapati (the Lord of Creation)
who sends them down as his Agents to complete his work of creation, as mere material cosmos, by building up
its moral aspects or human factors

Mahatma Gandhi, Ambedkar and Patel were in favour of a strictly parliamentary system.

“…The voice of the people must be carried by the Government and the parliamentary democracy is the best
instrument for the ascertainment and the expression of the public mind. Parliament acts as liaison between the
people and the State…..”- Dr. S. Radhakrishnan
The Constitutional Assembly believed that India already had the tradition of British system, which is better suited to
our country’s conditions, and adopted the parliamentary form of democracy based on the Westminster Model for
ensuring the political justice for the citizens.

Pursuant to the Indian Constitution, the very basis of the parliamentary democracy is the exercise of the power,
which is based on the popular will and the popular control.
 COMPARISON WITH THE BRITISH SYSTEM
01. India has an elected President while British Monarch is hereditary
• The Procedure of election of the President itself indicates sufficient departure from the
British parliamentary system.
• In France, before the fifth Republic, and in Italy even at present, the President is
chosen by both the Houses of the Parliament.
• Indian President, like that of German Republic is elected by an electoral college, all the
decisions are just taken in the name of President and countersigned by the minister
who actually made the decision.
• Therefore, as said regarding the England’ monarch ‘king can’t commit any wrong’
applies to Indian President also.
• The Indian constitution provides for impeachment of the President for violation of the
Constitution
02. The Constitution provides for certain machineries to advise the President, in
addition to the Union Ministry.

Like:
• (i) institution of Attorney General
• (ii) advisory opinion of the Supreme Court on certain question of fact or law,
• (iii) determination of the disqualification of a member of Parliament in consultation with the
Election Commission,
• (iv) consultation of justices of the Supreme Court and High Courts and Chief Justice of India in
appointments to the Supreme Court bench

03. In England, the allegiance owed to the monarch is derived from tradition,
sentiment and history while the position of the President of India depends upon
the power exercised by him within the express provisions of the constitution
04. The British system has unitary set up with parliamentary
supremacy;
• The Indian Constitution brings the idea of limited government with federal set up
and written constitution.
• Indian Parliament can not claim omnipotence of the British Parliament to make
or unmake any law.
• This reveals that the Indian system of Government is predominantly based on
parliamentary system, but it is not replica of that
 Outstanding features of our Parliament
Our system of Government is the “Parliamentary system” on the British pattern also called the Westminster model.

01. In a Parliamentary system there is no strict separation of powers between the Legislature and the Executive.

• It involves a fusion of legislative and executive powers than a strict separation of those powers.
02. Executive is divided into two parts-President is the Head of the State who reigns the country and the Prime -Minister is
the head of the Government, who governs the country.
• All the actions are taken in the name of the Head or the President, but responsibility is that of the Councils of
Ministers, headed by the Prime Minster.

03. The executive is drawn from the legislative-majority and can count on automatic endorsement of its programmes.

04. The Ministers are to be members of Parliament.

• The cabinet enjoying the majority in the Parliament concentrates in itself the virtual control of both the legislative
and executive functions.
• The executive has the primary responsibility for the formulation of governmental policy and its transmission in to
the Law.
• The responsibility for success or failure of policies is clear and identifiable
 Advantages of Parliamentary System
The parliamentary system has the following advantages over the presidential system:

1. Represents Diverse Group

• The parliamentary form of government provides opportunity to various ethnically, racially, linguistically and ideologically
diverse groups to share their views in framing of laws and policymaking.
• Countries, such as India, which have high level of diversity enables accommodation by providing political space to
various diverse sections of the society.
2. Better Co-Ordination Between Legislature and Executive

• The executive is a part of the legislature. As the government enjoys the support of majority of members in the lower
house, the tendency of disputes and conflicts decreases.
• It makes easy for the government to pass the legislation in the parliament and implement them.

3. Prevents Authoritarianism

• In a parliamentary system, the tendency of authoritarianism decreases as the power is vested in the council of minister
rather than a single individual.
• The parliament can remove the government through no-confidence motion.
4. Responsible Government
• The parliament can check the activities of the executive as the latter is responsible to the former. In
a presidential system, the president is not responsible to the legislature.
• The members of the parliament can ask question, move resolutions, and discuss matters of public
importance to pressurize the government.
• Such provisions are not available in Presidential system.
5. Availability of Alternate Government
• The lower house of the parliament can introduce and pass a no-confidence motion.
• In such a situation, the head of the state invites the leader of the opposition party to form the
government.
• In the United Kingdom, the opposition forms a shadow cabinet for the cabinet of the government,
so that they can become ready for the role.
Do we need a presidential system?

Presidential System of Government

• There is only one executive.
• In this system, the President is both head of state and
government, e.g. USA, South Korea etc.
• The executive is not responsible to the legislature for
its policies and acts, and is constitutionally independent
of the legislature in respect of its term of office.
Shashi Tharoor on Indian parliamentary
system
Our parliamentary system is a perversity only the British could have
devised: to vote for a legislature in order to form the executive.

It has created a unique breed of legislator, largely unqualified to

legislate, who has sought election only in order to wield executive
power.
There is no genuine separation of powers: the legislature cannot
truly hold the executive accountable since the government wields
the majority in the House.
The parliamentary system does not permit the existence of a
legislature distinct from the executive, applying its collective mind
freely to the nation’s laws.
 Arguments Against the Parliamentary System
01. Unqualified Legislators
• The parliamentary system has created unqualified legislators, who have sought election only
in order to wield executive power.
• It limits executive posts to those who are electable rather than to those who are able, e.g.
the prime minister cannot appoint a cabinet of his choice; he has to cater to the wishes of
the political leaders of several parties.

02. Powerful Executive

• Most of the laws are drafted by the executive and parliamentary input into their formulation
and passage is minimal. It has been seen that the ruling party issues a whip to its members in
order to ensure unimpeded passage of a bill.
• Since defiance of a whip itself attracts disqualification, MPs blindly vote as their party directs.
• Hence, the parliamentary system does not permit the existence of a legislature distinct from
the executive.
03. Fickle Legislative Majority

• It has forced governments to concentrate less on governing than on staying in office, and obliged
them to cater their coalitions.

• It puts insurance on defections and horse-trading.

• The anti-defection Act of 1985 has failed to cure the problem, since the bargaining has shifted
to getting enough MLAs to resign to topple a government, while promising them offices when
they win the subsequent by-elections.

04. Distorted Voting Preference:

• It has distorted the voting preferences of an electorate that knows which individual it wants to
vote for but not necessarily which party.
 Arguments in Favour of Presidential System
01. Stable Executive
• It establishes a stable executive which does not depend upon the fluctuating will of the
legislature especially in case of coalition governments.
• A system of directly elected chief executives at all levels – panchayat chiefs, town mayors,
Chief Ministers (or Governors) and a national President – elected for a fixed term of office,
invulnerable to the whims of the legislature, and with clearly defined authority in their
respective domains – would permit India to deal more efficiently with its critical economic and
social challenges.

02. Ability Over Electability

• Cabinet posts would not be limited to those who are electable rather than those who are able.
• The President can appoint anyone as secretaries (equivalent to minister).
03. Effective Check and Balance
• It establishes the presidency and the legislature as two parallel structures.
• This allows each structure to monitor and check the other, hence preventing the
abuse of power.

04. Role of Citizens

• At the end of a fixed period of time, the public would be able to judge the individual’s
performance, rather than on political skill at keeping a government in office.
• Further, the Indian voter will be able to vote directly for the individual he or she wants
to be chosen as a head rather than a majority of Members of Parliament and
Legislative assembly.
 Argument Against the Presidential Form
01. Lack of Cooperation
• A weakness of the system is its failure to ensure the co-operation between law-makers and
administrators.
• Frequent conflicts between the legislature and the executive may lead to deadlocks.

02. Autocratic
• A presidential system centralises power in one individual unlike the parliamentary system,
where the Prime Minister is the first among equals.
• He surrender to the authority of one individual, as in the presidential system, is dangerous
for democracy.

03. Concerns over Separation of Powers

• If the legislature is dominated by the same party to which the President belongs, he may
prevent any move from the legislature.
 Judiciary
Envisaged Role and Actual Working of Supreme
Court
 Importance of Supreme Court
In the Constitution of India, part 5, chapter 6 deals with the power, function, appointment, retirement,
jurisdiction, etc. from Article 124 to Article 147 of the Supreme Court.

The followings are the importance of the establishment of the

Supreme Court:
• Highest appeal court that is also known as the apex court of India and even the last
resort, where the citizens of India can seek justice if they are not satisfied with the
judgment of the High court.
• The citizens of India, as per Article 32 of the Constitution, can even directly sort for
remedy through writs if their fundamental rights are violated.
• The Supreme Court has Judicial Review power that is being vested through Article 13
of the Constitution, which means the Supreme Court has the power to strike down
any legislation and executive action if such acts are found to be inconsistent with the
Constitution of India.
 Powers of Supreme Court
Original Jurisdiction:
• As per article 131 of the Constitution, the SC functions as original jurisdiction over matters where the
disputes are either between the Central government and the state government or between two or more state
governments.
• As per article 139 of the Constitution, the SC have the power to issue writs, order, or direction.
• As per section 32 of the Constitution, the SC also has the authority to enforce Fundamental Rights.
• As per Article 139A of the Constitution, the SC on its discretion or at the advice of the Attorney General of
India can take up the cases during the pendency of the matter from the high courts if the same issue is to be
disposed of by the SC that is related to the question of law. And it can also transfer the pending cases, appeal
or other proceedings to give justice from one HC to another HC.

Appellate Jurisdiction:
• As per article 132, 133, 134 of the Constitution, the SC has appellate jurisdiction in matters that are related to
civil, criminal, or Constitution.
• Also, as per article 136, the SC has the power to issue special leave that is being by any tribunal courts in India
but this does not apply to Army courts.
Advisory Jurisdiction
• As per article 143 of the Constitution, the SC can advise the President of
India that is related to the question of law, and the nature of the matter
is associated with the public importance. And the President can also
seek opinion in the matters that are related to Article 131 of the
Constitution.
Review Jurisdiction
• As per article 137 of the Constitution, the SC has the power to review
any laws that are being passed by the legislature.
 Appointment of Judges
Appointment of Chief Justice From 1950 to 1973: The practice has been to appoint the senior
most judge of the Supreme Court as the chief justice of India. This established convention was
violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three
senior judges.

Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then senior-
most judge.

This discretion of the government was curtailed by the Supreme Court in the Second Judges Case
(1993), in which the Supreme Court ruled that the senior most judge of the Supreme
Court should alone be appointed to the office of the Chief Justice of India.
Controversy over Consultation and Evolution
of Collegium system

The Supreme Court has given different interpretations of the word ‘consultation’ in the above
mentioned provisions.

• In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies
exchange of views.
• In the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word
consultation to concurrence.

In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief
Justice of India requires ‘consultation of plurality judges’.

• The sole opinion of the CJI does not constitute the consultation process. He should consult
a collegium of four senior most judges of the Supreme Court and even if two judges give an
adverse opinion, he should not send the recommendation to the government.
• The court held that the recommendation made by the chief justice of India without complying
with the norms and requirements of the consultation process are not binding on the government.
 Working of Collegium System and NJAC
Collegium System
• The collegium recommends of the names of lawyers or judges to the Central Government.
Similarly, the Central Government also sends some of its proposed names to the Collegium.
• Collegium considers the names or suggestions made by the Central Government and resends
the file to the government for final approval.
• If the Collegium resends the same name again then the government has to give its assent to the
names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a
long time.

National Judicial Commission Act (NJAC) 2014

• Through the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act
(NJAC) was established to replace the collegium system for the appointment of judges.
• However, the Supreme Court upheld the collegium system and struck down the NJAC as
unconstitutional on the grounds that the involvement of Political Executive in judicial
appointment was against the “Principles of Basic Structure”. I.e. the “Independence of
Judiciary”.
 Evolution of Indian Judiciary
Phase One: Textualist Approach
• In its early years, the Supreme Court adopted a textualist approach. It focused on the literal meaning of
the words as mentioned in the Constitution.
• For example, in A.K. Gopalan v. State of Madras (1950) case, the Supreme Court interpreted the
Fundamental Rights under Part III.
• In this case, the leaders of the Communist Party of India claimed that preventive detention legislation
was inconsistent with Articles 19 (the right to freedom), 21 (the right to life) and 22 (the protection
against arbitrary arrest and detention).
• The Supreme Court upheld the validity of preventive detention and decided that each of those articles
covered entirely different subject matter, and were to be read as separate codes rather than being read
together.

Limitations on Parliament’s power to amend the Constitution

• At that time, the most controversial questions pertaining to Indian Constitution had been whether
there are any limitations on Parliament’s power to amend the Constitution, especially Fundamental
Rights.
However, the Court in its early years read the Constitution literally, concluding that there were no such
limitations.
 Phase Two: The Structuralist Approach
• The Supreme Court began exploring other methods of interpretation. Appeals to the text of the
Constitution were gradually overtaken by appeals to the Constitution’s overall structure and
coherence.
• In the leading case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court concluded
that Parliament’s power to amend the Constitution did not extend to altering its Basic Structure.
• The Supreme Court in Maneka Gandhi v. Union of India (1978) case reversed its earlier stand that it
took in A K Gopalan case.
In this case, the Court conceived of the Fundamental Rights as a cohesive bill of rights rather than a
miscellaneous grouping of constitutional guarantees.

The Right to Life was incrementally interpreted to include a wide range of rights
such as clean air, speedy trial, and free legal aid. This paved the way for the
Supreme Court to play an unprecedented role in the governance of the nation.
• In order to implement this, the Supreme Court of India, pioneered the Public Interest Litigation
(PIL) thereby throwing upon the portals of Courts to the common man.
PIL has today acquired unprecedented legitimacy and binding power and is acknowledged as a
powerful weapon to combat governmental lawlessness and social oppression.
 Phase Three: Challenge of Heterogeneity
• The Supreme Court’s interpretive philosophy turned far more result-oriented but it lacked thorough
reasoning of the issues. Reasons for this:
• The Supreme Court which at its inception began with eight judges grew to a sanctioned strength
of 34 judges.
• However, with the increasing burden of cases, it began to sit in panels of two or three judges,
effectively transforming it into a “polyvocal” group.

Further, Judicial Activism helped Indian Judiciary to become one of the most powerful judiciaries in the
world. However, the Indian Judiciary has been alleged of Judicial Overreach (interfering in the domain of
executive and legislature), nepotism and protecting itself of any reform under the guise of independence
of the Judiciary.
• This can be reflected in cases like rendering the National Judicial Appointment
Commission (99th Constitutional Amendment) as ultra vires or Master of the Roster controversy.
 Phase Four: Social Revolution and Transformation
• Recently, the Supreme Court has passed many judgments recognising the individual's rights and
thereby ushering an era of social transformation. For example:
• Lifting the ban on entry of women (aged 10-50) inside Sabarimala Temple: The Supreme Court held
that "Devotion cannot be subjected to gender discrimination" and removed a ban that prevented
women between 10 and 50 years of age from entering Kerala's Sabarimala temple.
• Decriminalisation of Homosexuality: Supreme Court in 2018 decriminalized homosexuality stated
under Section 377 of the Indian Penal Code.
• Adultery Not A Crime. The Supreme Court unanimously struck down a 150-year-old law that
considered adultery to be an offence committed against a married woman by another man. Defined
under Section 497 of the IPC, adultery law came under sharp criticism for treating women as
possessions rather than human beings.
• The Supreme Court declared Section 497 as unconstitutional. Adultery is no longer a crime but if it
leads to someone committing suicide, the act will be treated as a crime - abetment to suicide.
Apart from these, Indian Judiciary has also taken reforms that sought to instil transparency in Indian
judicial system like live streaming of Supreme Court and bringing of CJI under RTI. However, Indian
Judiciary should strive to strike a balance between transparency & accountability and maintaining the
independence of the Judiciary.
 Judicial Review in India
Concept of Judicial Review
• The power of Judiciary to review and determine validity of a law or an order may be described as
the power of "Judicial Review." It means that the constitution is the Supreme law of the land and
any law inconsistent here with is void.
• The term refers to "the power of a court to inquire whether a law executive order or other official
action conflicts with the written constitution and if the court concludes that it does, to declare it
unconstitutional and void.“
• It is the power of the Court to examine the constitutional validity of the laws made by the
legislature and the orders issued by the executive, after which if it finds them contrary to the
provisions of the Constitution, may declare them as null and void. Thus, designed in the frame of
facilitating the Court to act as the guardian and protector of the Constitution.
Hallmark of the federal political systems
• The written constitution lays in black and white the powers of the different departments of
government so that neither any organ of government usurps the powers of others nor the spirit
of the political philosophy underpinning the polity gets violated.
 Doctrine of Judicial Review’s
The doctrine of Judicial Review was adapted by Indian from USA.
• In USA, initially there was no specific provision regarding the doctrine but in the historic case
of Marbury vs. Madison in U.S. [1803].
• It was stated that, “Certainly all those who framed written constitutions contemplated them as
forming the fundamental law of the nation and consequently the theory of every such government
must be that an act of the legislature repugnant to the constitution is void… It is emphatically the
province and duty of the judicial department to say what the law is”.

Following are the key purposes of Judicial Review-

• to determine the unconstitutionality of Legislative Acts
• to maintain supremacy of the Constitutional Law
• to protect the Fundamental Rights
• to maintain federal equilibrium between Centre and the States
• to check arbitrariness, unjust harassing and unconstitutional laws
 Judicial Review in India
In the Article 13 of the Indian constitution, the law explicitly mentioned about the
power of Judicial Review to be endowed to the high court and Supreme Court.

Chief Justice Kania in the landmark case of A.K.Gopalan vs. State of Madras,1950
SC, stated that-
• “it was only through caution and care that the framers of our
constitution added the specific provisions mentioned in Art 13. In a
country like India, it is the constitution which is the most supreme
and hence all statute laws should be in conformity with it and it
should be for the interpreters to decide whether any law is
constitutional or not”.
 Landmark judgements:
After the A.K Gopalan case, in another case of L. Chandra vs. Union of India AIR 1997 SC 1125, the court
gave certain facets to the Judicial Review and also claimed that while interpreting the legislation, it must
be made sure that the law is in coherence with the constitution. This case emphasizing on the need of
coherence.

In the case of Shankari Prasad vs. Union of India AIR 1951, SC 455, the amendment was challenged on
the reason that it is violating the Part-III of the Indian constitution and hence, the amendment should be
considered not valid. The Supreme Court claimed that the legislative organ, under Article 368, has the
power to change any part of the constitution including the fundamental rights. Here the court used its
power of Judicial Review.

Similarly in the case of Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845 where the validity of the 17th
Amendment Act of 1964 was in question, the court followed the provision laid in the Shankari Prasad vs.
Union of India AIR 1951, SC 455, under article 368, the parliament has the power to amend the
constitution.
But in case of Golakhnaath Vs. state of Punjab 1967, the courts changed its decision
when, amendment in question in the case of Sajjan Singh vs. State of Rajasthan AIR
1965 SC 845 was again challenged. The court this time stated that under article 368
there is only the procedure to amend laid down but not the power for the parliament.
Few points laid down were:
• 1. The power of parliament to amend the constitution is derived from Article 245 read with entry 97
of list 1st of the constitution and not from Article 368.
• 2. An Amendment is a law within the meaning of art 13 (3), including every kind of law, statutory as
well as constitution law and hence a constitutional amendment which contravened Art 13 (3) will be
declared void.
• 3. Fundamental rights were given a transcendental position under our constitution and are kept
beyond the reach of parliament.
• After the judgement of Golakhnath case, the parliament brought certain changes in the law. Which
were:
• 4. Art 13 (4). “Nothing in this article shall apply to any amendment of this constitution made under
article 368.”
• 5. Article 368. Procedure for amendment of the constitution was replaced by Power of parliament to
amend the constitution and the procedure thereof.
 Critical analysis of power of Judicial review
01. Against these basic values of Democracy.
• Unlike politicians, a judge is unaware of people’s concrete facts and needs. He
approaches issues politically, to a greater extent, different from reality. Unlike
representatives, a judge is not elected by people who diminish the sense of
accountability in him.

02. Constitutional Limits of Judicial Review

• In Tata Cellular v. Union of India, the Supreme Court held that the Court would
practice the self-restraint and confine itself to the issue of lawfulness in exercising the
power of judicial review. Its concern should be if a decision-making body exceeded its
jurisdiction, committed an error of law, committed a violation of the laws of natural
justice, and made a decision which no fair tribunal should have made or abused its
power.
03. Judicial Review and Separation of Power
• Article 141 of the Indian Constitution provides enforceability to supreme-
court judgments and thus requires the judgment to be law. As the basic
principle of the constitution is the division of power, here the question arises
whether such a decision will be subject to constitutional scrutiny and may be
considered to have been struck if it is found to be incompatible with the
constitution.
 Judicial Activism

The judiciary plays an important role in upholding and promoting the rights of citizens
in a country.

The active role of the judiciary in upholding the rights of citizens and preserving the
constitutional and legal system of the country is known as judicial activism.

This entails, sometimes overstepping into the territories of the executive. Candidates
should know the judicial overreach is an aggravated version of judicial activism.

Judicial activism is seen as a success in liberalizing access to justice and giving relief to
disadvantaged groups, because of the efforts of justices V R Krishna Ayer and P N
Bhagwati.
 Judicial Activism Methods
There are various methods of judicial activism which are
followed in India. They are:
• Judicial review (power of the judiciary to interpret the constitution and to
declare any such law or order of the legislature and executive void, if it finds
them in conflict with the Constitution)
• PIL (The person filing the petition must not have any personal interest in the
litigation, this petition is accepted by the court only if there is an interest of
large public involved; the aggrieved party does not file the petition).
• Constitutional interpretation
• Access of international statute for ensuring constitutional rights
• Supervisory power of the higher courts on the lower courts
 Judicial Activism Examples
Golaknath case
• SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in
Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required.
Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on
Parliament the power to amend the Constitution.

Kesavananda Bharati case

• The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the
Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even
by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down
any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies on
the grounds that the process of allocation was flawed.

The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain exceptions
in 2018.
 The PIL Regime
Proponents of judicial activism were judges like V R Krishna lyer, P N Bhagwati, Chinnappa Reddy and D
A Desai, who have rendered many judgments touching upon basic rights of the people.

PIL was originally conceived with the noble objective of empowering the downtrodden, the poor and
the needy by ensuring justice to them by relaxing the rigour of locus standi.

In 1979 in Hussainara Khatoon v State of Bihar , the Supreme Court first took up a PIL action on behalf
of prisoners awaiting trial who had been languishing in jails for periods longer than the maximum
punishment prescribed for the offences concerned. The court in this case issued directions ensuring
appropriate relief to the prisoners.

In 1988 the Supreme Court was forced to provide certain guidelines for entertaining public interest
litigation. Accordingly, no petition involving individual/ personal matter shall be entertained as a PIL
matter.
 Argument in favour of Judicial Activism
Judicial Activism sets out a system of balances and controls to the other branches of the
government. It accentuates required innovation by way of a solution.

In cases where the law fails to establish a balance, Judicial Activism allows judges to use
their personal judgment.

It places trust in judges and provides insights into the issues. The oath of bringing justice
to the country by the Judges does not change with judicial activism. It only allows judges
to do what they see fit within rationalised limits.

Judicial Activism helps the judiciary to keep a check on the misuse of power by the state
government when it interferes and harms the residents.

In the issue of majority, It helps address problems hastily where the legislature gets stuck
in taking decisions.
 Argument against judicial review
When it surpasses its power to stop and misuse or abuse of power by the
government. In a way, it limits the functioning of the government.

It clearly violates the limit of power set to be exercised by the constitution when it
overrides any existing law.

The judicial opinions of the judges once taken for any case becomes the standard for
ruling other cases.

Judicial activism can harm the public at large as the judgment may be influenced by
personal or selfish motives.

Repeated interventions of courts can diminish the faith of the people in the integrity,
quality, and efficiency of the government.
 Judicial Activism VS Judicial Restraint
Through, Judicial Activism Judiciary exercises its own power to implement or strike down
the laws and rules that infringes the right of the citizens or is for the good of the society at
large, whatever the case may be.

On the other hand, Judicial Restraint puts obligations on SC to follow constitutional laws
while implementing its duties. It encourages the judiciary to respect the laws or rules set
out in the constitution.

Judiciary has gained power with judicial activism as the judges can take up issue suo-motu
wherever they think that constitutional laws are being violated, however, with judicial
restraint, the same judiciary has to abide by the executive who is given the sole power to
legislate for the public.
Electoral Politics in India
 Introduction

Election is a device through which a modern state creates among its citizens a
sense of involvement and participation in public affairs.

The absence of general confidence in the verdict of the ballot may destroy the
faith of public in the democratic process.

Stressing the importance of electoral process, Pollock observed, “Unless public

elections are conducted with accuracy and efficiency, not only the public services
are discredited but the whole democratic system is endangered.”
 Importance of elections in India
Choice of leadership
• Elections provide a way for the citizens of India to choose their leaders. They do so by casting their
vote in favour of the candidate or party whose views appeal to them. This ensures that the will of the
people is reflected in the elected candidates.
Change of leadership
• Elections in India are also a platform for the public to voice their resentment against a ruling party. By
voting for other parties and helping elect a different government, citizens demonstrate that they
possess ultimate authority.
Political participation
• Elections open the door for new issues to be raised in public. If a citizen of India wishes to introduce
reforms that are not the agenda of any of the parties, he or she is free to contest the elections either
independently or by forming a new political party.
Self-corrective system
• Because elections are a regular exercise, occurring every five years in India, the ruling parties are kept
in check and made to consider the demands of the public. This works as a self-corrective system
whereby political parties review their performance and try to appease the voters.
 Working of Election Machinery in India
Election Commission of India(ECI), is an unified authority, independent of the central and
state governments, for organising elections to the Union and state legislatures.
• The powers of the EC are essentially administrative and marginally adjudicative and legislative.
• Its triple powers have so far been exercised without ever being objected to by the judiciary.

It was initially envisaged to be a single member Commission.

The EC was enlarged in October 1993 with the appointment of two ECs (Election
Commissioners).

The President appoints the CEC (Chief Election Commissioner) and ECs.
• The Tarkunde Committee in 1975 and the Goswami Committee in 1991 suggested that the President
should make appointment to the EC on the advice of a Committee comprising the leader of the
opposition in the Lok Sabha, the Prime Minister, and the Chief Justice of India.
In the first three decades after independence, EC’s role was peripheral because there was little
malpractice and violence.

Towards the end of 1980s, Mandal and Mandir issues emerged on the political scene and the politics of
consensus collapsed.

• Politicisation on caste and communal lines took the centre-stage.

• Electoral process was vitiated and the violence, rigging, intimidation of voters and misuse of
governmental machinery became common.

The situation called for prompt reforms in the electoral process. However, despite expression of serious
concern by politicians of all hues, no substantial reform was effected. The EC had no option but to resort
to the use of its constitutional and legal powers in the interest of free, fair and peaceful election.

It has fought many battles in the apex courts of the country against forces inimical to the healthy
democratic development. The EC unhesitatingly ordered repolls at polling stations and whole of
constituencies if the original poll was vitiated.
The effective enforcement of election law and model code of conduct by the EC had salutary effects
in the conduct of elections since 1990s.

The credit for improving the functioning of election machinery in the country is mainly attributed to
T.N. Seshan, former CEC.
 Electoral Behaviour in India
In the words of Plano and Riggs, “Voting Behaviours is a field of study concerned with
the ways in which people tend to vote in public election and the reasons why they
vote as they do.”

It involves a study of human political behaviour in the context of voting in elections.

An important area of political science in which theory can be systematically and

qualitatively measured and tested.

Man is a rational creature in the philosophical sense of term; he is not so rational in

the realms of his economic and political behaviour.
• An empirical study of the electoral behavior displays the astounding fact that the
behavior of man is influenced by several irrational forces.
• Indian voting behavior in view, Prof. V.M. Sirsikar:
• “The study of the election process points to other factors besides rationality.
It can be said that India has achieved a stable government, but massive
manipulations, caste influences, fears of minorities and the prime minister’s
charismatic dominance did not play a significant role in this process."
 Main political and socio-economic factors which
act as determinates of voting behaviours in India
01. Charisma
• It means exceptional quality of a factor and override group elements leader that becomes a source
of attraction and reverence for the people in large numbers.
• In India, constructive aspect of charisma has had its role at the time of election
• The slogan of “Garibi Hatao” worked miracles in the election of 1971; the personality of Mrs.
Gandhi after India’s miraculous victory in the Bangladesh War had the same marvelous impact on
the mind of the electorate in the State Assembly elections of 1972.
• The image of Jayaprakash Narayan had the same effect in the elections of 1977. So was the effect of
the personality of Rajiv Gandhi in the elections of 1984 and of V.P. Singh in the elections of 1989.
• Personality of Modi, BJP won election of 2014 and 2019.
It is said: “Where the groups factors are weak or cancel out, this charisma may be the major.” Huge
attendance at the meetings addressed by towering personalities like Nehru, Indira, Vajpayee, Modi and a
sudden change in the mind of the voters in response to the appeals issued by such great figures may be
counted as the concrete evidences of the role of charisma in the electoral behaviour of our people.
02. Religion
• The establishment of a secular state in India – by guaranteeing right to freedom of religion to
every one, treating every religion equal and non – recognition of any religion as a state religion –
has not been successful in preventing the role of religion as determinant of political behaviour in
general and voting behaviour in particular.
• The existence of such political parties and neo-political groups as stand linked with a particular
religion, for example, Muslim League, Akali Dal, Hindu Maha Sabha, Shiv sena etc., have been
one of the reasons behind the continued role of religion as a determinant of voting behaviour.
• Religious pluralism of the Indian society is a major feature of the environment of Indian political
system and it greatly influences the struggle for power among political parties.
• The selection of candidates is done with an eye upon the presence of a religious majority in a
particular constituency. The candidates do not hesitate to seek votes by playing the religious card
with co-religious voters and the secular card with members of others religious communities.
• The religionisation of social-political issues is again resorted to by political parties and other
groups. The voters very often vote on religious considerations.
 Evolution of communal politics (violence) in
India
The role of religion in politics is called Communalism. Communalism denotes the political
ideology where religion is seen as a means for political mobilisation of the people.

Role of religion in politics is neither new nor unique to India. It is present since the ancient times.
Since, the end of cold war, there has been the decline of secular ideologies and there has been
the rise of Religious.

According to the British scholars, Indian have always been communal they project the fight
between Shivaji and Aurangazeb as a religious fight, rather than political.

However, According to Indian scholars like Romilla Thapar, the Marxist historian, there were no
communal riots in the subcontinent before the advent of the British – However, there were some
example of local sectarian conflicts.
Evolution of communal politics since 1857 revolt
• British believed that Muslims were responsible for the Revolt of 1857 and hence
started the appeasement of Hindus.
• Sir Sayyad Ahmed Khan promised the loyalty of the Muslims towards the British
to Prevent the Marginalisation of Muslims. British left Hindus for the support of
Muslims. Minorities are always better partners for imperialists because they are
more insecure.
• To weaken nationalism, they announced the partitions of Bengal in 1905
supported the formation of Muslims league 1906 introduced separate
electorates in 1909.
• In 1915 Savarkar formed the Hindu Mahashabha against Muslim League.
• In 1919 separate electorate was extended to all other minorities like Sikhs, Parsis,
Anglo Indian thus challenging the Idea of Indians belonging to one nation.
• In 1923, Savarkar gave the idea of Hindutva, According to which nationalism
demands on person’s fatherland and spiritual land has to the one.
In response, Muhammad Iqbal gave the concepts of Muslim Ummah.

• Which means Muslim brotherhood. He held that its un-islamic for Muslims to live under man –
made laws.
• He clarified that Islam doesn’t support the idea of Territorial nation. Muslims are one community
(Indian Muslim = fake Muslim) can’t be divided on the basis of territoriality.
In 1925 Rashtriya Swayamsevak Sangh (RSS) was formed by K.B. Hedgewar in reaction to aggressive
Pan –Islamism and to counter the Hindu sense of vulnerability thus propagating a militant form of
Hinduism

In 1932, British announced the Ramsay MacDonald Award. They had already divided Indian. Now,
the plan was to divide Hindus and to reduce congress as a party of upper caster minorities

This politics had ultimately resulted into partition of 1947 and one of the worst forms of communal
violence.
 Evolution of communalism after independence
UPTIL 1960s
• Up till 1960s there was no communal violence in the country, but the bitterness of the
partition was continuing.
• No major communal violence as the government had banned communal organisations;
Pundit Nehru emphasised on the secularist agenda;

1960s
• Selig Harrison calls 1960s as ‘Dangerous Decade’; Beginning of communal violence:-
communal riots started in industrial towns like Jabalpur, Ranchi, Aligarh, Nagpur Ahmedabad.
• Reasons for communal violance
• Linguistic reorganisation of States; Oppositions to declare ‘Hindi’ as the only official language;
The beginning of the breakdown of the Congress system (until when Congress had no need of
communalism).
• Western scholars predicted that, by the end of 1960s the experiment of India will be over.
(There will be no India) Dangerous decade.
1970s – 1980s
• 4th general elections led to the breakdown of the congress system,
formation of non – Congress governments in 8 states and Congress in
Coalition in 9 states.
• Political competition became tough, the beginning of the criminalisation
of politics the greater use the caste and Religion started.
• ‘ Operation Blue Star’
• One of the worst example of communal politics was uncivil wars in
Punjab. Communal violence in Punjab, ultimately culminated into the
tragedy of ‘ Operation Blue Star’ which further led to the
assassination of Indira Gandhi followed by Anti–Sikh riots in Delhi and
other parts of the country.
1990s
• Since 1990s there has been a greater influence of identity politics
around the world; Clash of ideologies converted to clash of civilizations.
; Since 1990s Mandal and Kamandal religion have become the idioms of
Indian politics.
• 1990s was a time when the age of coalition politics at the Union level
started; Making political competition more cut throat
• Thomas Blom Hansen in his book “The saffron wave” has projected the
communalisation of Indian politics and the phenomenal rise of BJP. The
party with 2 seats only in 1984, could reach to a level where it could
form a government in coalition with other partners by 1999.
• BJP also gets the credit of running the first successful coalition
government completing the full 5 year term under the leadership of A.B.
Vajpayee.
The evolution of communalism in 1990s can be enumerated as
following:
• Role of VP Singh : VP Singh was unable manage Coalition; Terrorism in Kashmir & Punjab ,
Deterioration economic condition;
• He thought of playing the Mandal card to consolidate his position, Mandal card was seen as an
attempt to divide Hindus – a new version of communal award of Ramsay MacDonald Award, The use
of Mandal made BJP insecure. Hence, BJP started the Mandir issue in a big way.
• Role of Rajiv Gandhi
• Double Appeasement: In order to consolidate the position of Congress, Rajiv Gandhi followed the
policy of Double Appeasement on the one hand to appease Hindu, the government of Congress
allowed the opening of Ram Janam bhoomi and Shilanyas puja. And on the other hand to appease
Muslims, Government had diluted revolutionary verdict of the Supreme Court in Shah Bano Case.
• Role of BJP and Advani: BJP became insecure that the Congress has hijacked the Mandir Agenda
because of Ram Janam Bhoomi. BJP was now left with no other option, but to start Rath Yatra. The
Yatra ultimately culminated into demolition of Babri masjid, followers by the Mumbai riots; Godra
riots, Gujarat, following by Muzaffar Nagar riots.
 Analysis of communal riots in India
Contribution of Paul Brass

• Communal riots in India are not spontaneous events. It is wrong to call them riots. They are
Pogroms (a violent riot aimed at the massacre or expulsion of an ethnic or religious group,
particularly one aimed at Jews in 19th and 20th century in the Russian Empire).
• According to him, there is a well-developed riot machinery existing in the country. Communal
riots are implemented in one of the most professional manner. Professionally managed exercise.
• He has suggested that communal riots benefits political parties as the voters of each party get
consolidated and polarise. This is the reason, why no political party will try to stop communal
riots.
• If administration in India wants, communal riots in India can’t continue beyond 2-3 days; When
elections are around, it is the most vulnerable time as for roits.
• Fight for powers and money stakes are so high that this become the only option. Religion is just
used as a tool to mobilise People.
 Evolution of Riots- 3 stages
Preparatory State:
• In this stage, there is a role
of fire tenders (who ensure
that this atmosphere is
lefted with their speeches).
Precipitation Stages:
• Where communal violence
actually start, there role of
conversion Specialists
Explanatory stages:
• This is the stage where
actual games starts.
• Finally, when the show is
over and the preparation
for new starts.
According to Professor Dipankar Gupta- Picnic riots take place

Picnic riots - After the riots are over, there is celebration. Activists are awarded parties
take place. Explanation of communalism in India.

There are 4 schools of thoughts

• 01. Essentialists – According to this school, Hindus & Muslims are two antagonistic
communities. It has been propounded by the western scholars like Louis Dumont.
Jinnah’s two Nation theory is also based on the above approach. Jinnah, Sayed
Ahmed Khan, Savarkar etc.
• 02. Instrumentalists- Bipan Chandra According to this school. Communal violenc
whether pre-independence or post – independence is because of the elites. Elite
prefer mobilisation on the lines of caste and religion. According to this theory,
politicians use communal politics but people are not communal. Hence, after some
time, normalcy comes back.
• 03. Institutionalist : Asghar Ali Engineer- According to him, state politics promote communalism.
State actions and public policy makes one community insecure and nurtures the feeling that the
other are appeased and they are being discriminated.

• 04. Social Constructivists – According to them, different communities continue to nurture some
stereotypes against each other. They develop mental maps and live with that map.

• According to Social constructivists, the lack of communications between the communities force
them to live with such stereotypes. The trust deficit between the communities and lack of
communication is a major problems. Solution lies in communications & dialogue example.
03. Caste :
• Despite the adoption of several provisions which prohibit action and discrimination
on its basis, caste continues to be a determinant of political behaviour.
• The political parties in India, without any exception, while formulating their policies,
programmes and election strategies always keep in mind the caste factor . Caste is a
factor in the selection of candidates for contesting an election from a constituency
especially rural India. Votes are demanded in the name of caste .
• Jat Ki Vot Jat Ko, Brahmin votes vs. Jat votes or Jat votes vs Ahir votes etc., are
commonly used “principles”for planning an election strategy.
• Morris Jones writes, “Politics is more important to caste and caste is more important
to politics than before.”
• Despite the adoption of democratic values which conceive of a society free from
casteism, caste continues to characterise politics in India.
The decision to implement Mandal Commission recommendation for reservation
of jobs for other Backward Classes (castes) and the reaction it generated in
politics testifies to the continued presence of caste as a determinant of politics in
India.

However , it must be stated that the role of caste as determinant of the voting
behaviour has been undergoing a change, at least in the urban areas. Issue based
political struggle is gradually taking its shape in the Indian polity. But the situation
continues to be paradoxical.
Sociological explanation of Caste
Louis Dumont
• He conclude that homo hierarchicus is the central and substantive element of the
caste system.
• The phrase is used by a French sociologist Louis Dumont differentiate Hindu social
system from other social systems - particularly that of the western society.
• It analyses the caste hierarchy and the ascendancy tendency of the lower castes
to follow the habits of the higher castes. This concept was termed as
Sanskritisation by MN Srinivas
• Hierarchy is the central core of the caste social order.
• It includes hierarchy of status, values, customs and behaviour on the basis of
purity and impurity, interpersonal relationship among individuals in terms of
blood, food and occupation; and rituals divided into two orders: pure and impure.
Contribution of M. N. Srinivas
• He Challenges Lauis Dumont’s perspective and calls Dumont’s perspective as too textual and bookish.
• In Practice, there is not much difference in Western and Indian tradition; Class is as static as caste.
• As in case of Caste, Class is also based on based on birth; M.N. Srinivas held that the caste system was not entirely
rigid, mobility was permitted. He coined the term ‘Sanskritisation of Caste’

Sanskritisation of Caste:
• Persons of lower caste adopted the practices of Brahmins. Example stop eating non-veg food
• Thus, reducing the pollution and have been elevated to the higher status.
• There are many example among shudras who have been elevated to the status of & Kshatriyas- there are also
examples where untouchables (example. Jatavas of Agra have been sankritised. However, once reservations have
been introduces, they have desankritised.
Dominant caste in India
• M.N. Srinivas has given the concept of dominant caste. The term ‘upper caste’ is misleading. We have to
understand the role of dominant caste in India.
• Who are dominant caste? Dominant caste denote the caste holding economic power, ‘Social power & political
power. In most of the situations, upper castes like the Brahmins & Jashatriyas are not the dominant caste.
• Example- Yadavas are the dominant castes in UP & Bihar; Jats are the dominant castes in Haryana & Western UP;
Maratas – In Maharastra; Reddys, Kammas, Kapus in A.P; Lingayats, Vokkaligas in Karnataka.
Contribution of Rajin Kothari
• He gives the credit of secure of Indian democracy to caste ; Caste provided the basis
for mobilisation & Integration of the people with democracy. However, Caste in other
countries of the third world is actually responsivity for the failure of democracy in
these countries.
• According to him, not only caste has impacted Politics, but politics has also impacted
caste- a phenomenon called as Politicisation of Caste.

Politicisation of Caste
• 01. Secularisation - It shows how politics has changed the nature of caste. Earlier,
caste was important for ritual purposes. Now caste is important for secular Benefits
like employment education etc.
• 02. Integration – Normally, caste is understood as a disintegrative force, but
democracy has compelled different castes to integrate form alliances, formation of
coalition – in Social engineering we see both Fusion and Fission coalition forming and
breaking.
• Some of the important caste coalitions of Indian politics
• Ajgar – Majgar (Adhere Jats, Gujjar, Muslims, Rajputs). This coalition was
proposed by Sir Chottu Ram and later on by Chaudhary Charan Singh in the
context of western UP and Haryana.
• Another famous coalition is KHAM (Kshatriya, Harijan, Adivashi, Muslim) formed
by Congress in Gujarat.
• Muslim – Yadav coalition formed by SP & RJD UP and Bihar.
• Above examples shows that what Gandhi, and other nationalist leaders couldn’t
achieve (bringing together Dalits & Brahmins) has been achieved by democracy.
• 03. Consciousness- When caste enters into politics, it develops into a new
consciousness. The consciousness get politicised. It results in lower – castes becoming
aware of their importance. Hence, they themselves go for autonomy.
• Mobilisation in politics e.g. Initially Dalits were led by Congress but gradually they
realise their importance and formed their own party – BSP.
• The Phenomenon of politics of caste has been described by Rodolph & Rudolph as
Modernisation of the Tradition- Secularisation of caste
 Secularisation of caste
It has detached caste from the ritual status hierarchy on the one hand, and has imparted it a
character of the power-group functioning in the competitive democratic politics on the other.

Changes in caste politics could be observed along two dimensions of secularisation:

De-ritualisation and Politicisation. These changes have-
• (a) pushed caste out of the traditional stratificatory system,
• (b) linked it to the new structure of representational power, and
• (c) in their cumulative impact they have made it possible for individual members of different castes to
acquire new economic interest and social-political identification and own class-like as well as ethnic-type
identities.

Thus secularisation of caste, brought about through its de-ritualisation and politicisation, has
opened up a third course of change.
Prof yogendra Yadav suggest that the interaction between caste &
Politics has led to democratic upsurge
• First democratic upsurge -1960s which symbolised OBC’s coming out of congress
• Second democratic upsurge – 1990s when Dalits left congress and formed their
non-party
This shows that caste based mobilization may ensure that the democracy in India
does not remain just a TOP SOIL. It has started percolating consciousness and has
started emerging in lower caste their importance.
04. Language
• The organization of states on linguistic basis fully reflects the importance of
language as a factor of politics in India.
• There have been problems in states like that of status of one particular language in
that state, or relating to the quality of the status of a language of a state. Since
people have emotional attachment with their languages, they easily get influenced
whenever there comes up any issue relating to language. Linguistic interests
always influence voting behaviour.
05. Money Factor
• A rich candidate or party has always better chances of winning the elections.
• But it is to be pointed out here that it happens only in normal circumstances and
not during a wave –election or when other key issues are involved. Despite
organizing a very expensive election campaign, the Congress(I) lost power in 1989
06. Sub-Nationalism
• Ethnic pluralism, communalism, regionalism and sub-nationalism are the hard realities of Indian
society. Of late sub-nationalism has become a crucial factor in influencing the voting behaviour of
the people.
• At times a secessionist group gives a call for the boycott of elections and uses pressure tactics to
forces the voters either not to vote in favour of a particular party.
• Some regional political parties like some fractions of the Alkali Dal, Naga Nationalist Organization,
Gorkha League, Jharkha party, AASU and AAGSP in Assam have raised parochial slogans from time
to time and have disturbed the emotional stability of the people of their states.
• Such actions of some political parties have at times influenced some people to organize themselves
on narrow and parochial lines.

07. Performance of the Party in Power

• Each Political party contests elections on the basis of an election manifesto, and after coming into
power, it is expected to fulfit the promises made there in.
• Good or bad performance of the ruling party, just on the basis of the election promises made and
promises actually fulfilled influence the basis behavior of the people in a big way.
08. Public Esteem of the Candidate
• A candidate repute with the people of his constituency or his known qualities or
contribution always acts as a factor of voting behavior.
• Apart from his party loyalty or opinion on various issue and problem, a voter
while making his choice always takes into account the nature and level of his
association with the candidate.
• A positive image of a party’s candidate is a source of popular support for the
party. A voter prefers to vote for a candidate who is approachable and who can
help him anyway.
 Issues in electoral process in India
01. Money Power & Freebies
• Expenditure: There are three drivers of expenditure in elections viz.
legitimate electioneering cost, party running cost, and Media cost.
• However, the accounted legitimate expenditure is a mere percentage of
actual spending by the candidate and their corresponding political
parties. According to the report of the National Commission to Review
the Working of the Constitution (NCRWC), high cost of elections creates
a high degree of compulsion for corruption in the public arena.
• Vote-buying: The rise of illegitimate expenditure on vote-buying has
become a matter of great concern as it is making only the rich to be more
qualified to become an MP or MLA over a well-qualified public-spirited
person.
• Out of 533 candidates elected to the 17th Lok Sabha (2019-present),
475 Parliamentarians (accounting for 88%) are ‘crorepatis’. This
reflects the paradoxical situation of poor India with rich
Parliamentarians raising concerns about the growing role of money
power in politics.
• Freebies: Freebie is something provided or given free of charge,
ranging from rice at cheapest rates to laptops & bicycles.
• These promises may be targeted at particular groups of electorate like BPL
families, weaker sections of the society, women, handicapped etc
• Although, people have many-a-times rejected it, but still, political parties
continue to compete with each other by offering such entitlements.
Paid News
• Paid news is any news or analysis appearing in any media (Print and Electronic) for a price in
cash or kind. An issue like Paid News disrupts the level playing field and circumvents the
election expenditure limits.
• This creates a hurdle for the Election Commission of India (ECI) to conduct the smooth run-
off elections in a free, fair and transparent manner.
Issuance of Secret Bonds
• Electoral bonds are the bearer bonds that were launched in 2017 in order to cleanse the
system of political funding in the country.
• However, its anonymous feature in which neither the donor nor the political party is
obligated to reveal whom the donation comes from defeats the fundamental principle of
transparency in political finance (as the voters are unaware of the source of funds that are
spent by the political parties in the election process).
• Also, as the issuing entity is the State Bank of India, i.e. a State-run entity, there is a fear of
retribution amongst the donors as the government at any point of time can look for the
names of the anonymous donors.
 Electoral Reforms
Legislative Measures
• Limit on spending of candidate: At present, under Rule 90 of the Conduct of Election Rules,
1961, a candidate contesting Lok Sabha polls can spend up to ₹70 lakh and in an assembly
election up to ₹28 lakh, depending on the state in which s/he is contesting polls.
• Recently, a Private Member’s bill was introduced in the Parliament which intended to do
away with the cap on election spending by candidates. The move was taken on the ground
that the ceiling on election expenses ends up being counterproductive by
encouraging candidates to under-report their expenditure.
• In 2003, a law was passed by the Parliament after the Tehelka scam. According to it, donations
to political parties will receive 100% income tax exemptions for donors.

Measures by ECI
• Political Parties Registration Tracking Management System (PPRTMS): To allow an applicant to
track the progress of his/her application.
• Systematic Voters' Education and Electoral Participation Programme (SVEEP): ECI
organizes voter awareness campaigns in order to educate the voters.
Criminalisation of Politics
• It refers to a situation in which the anti-social elements enter the electoral
process by contesting elections, getting elected to the legislature, and
consequently occupying public offices.
• This happens due to existing strong nexus between the criminals and some
politicians abusing the loopholes in the present system.

Flaws in the Criminal Justice System

• In India, an accused is presumed to be innocent unless pronounced guilty by the
Courts.
• The rate of conviction for politicians is abysmally low, with just 6% in criminal
cases.
• This implies that a large number of accused politicians with criminal background
actually go unpunished from a Court of law, and are not disqualified from
contesting elections further.
Measures by Judiciary- Supreme Court in following cases
recommended various reforms:
In Union of India versus Association of Democratic Reforms 2002 case: Contesting candidates
need to disclose all their assets and liabilities, criminal convictions, etc. at the time of filing
their nomination paper.

In Ramesh Dalal versus Union of India 2005 case: A legislator is disqualified from contesting
elections if, on the day of filing the nomination papers, he/she stands convicted in a Court of
law.

In Lily Thomas versus Union of India 2013 case: The nature of disqualification for being a
member of the House as provided under Article 101(3) & 190(3) is automatic and takes place
with immediate effect.

In People’s Union of Civil Liberties versus Union of India 2013 case: Voters enjoy “Right to
Negative Vote” in the election process and directed the ECI to include the choice of “NOTA” in
the ballot paper.
 Electoral reforms suggested- Legislative
01. State Funding of Elections

• System in which the State bears the election expenditure of political parties that are contesting
elections. This can bring transparency in the funding process as public finance can limit the influence
of interested donors’ money and thereby help curb corruption.

02. Central Legislation

• In the Public Interest Foundation & Ors. vs. Union of India 2018 case, SC put the onus on the
Parliament to frame a law to prevent criminalization of politics and take concerted efforts to cleanse
the political system of the country.
• The time has come to frame suitable legislation on the lines of FRBMA, 2003 (Fiscal Responsibility
and Budget Management Act- that puts a cap on fiscal deficit).
• If a cap is introduced on populist announcements (based on the proportion of budgetary
resources they have) by the parties within the ambit of law, then perhaps all political parties will
have a level playing field and the unsustainable populist measures could be kept under check.
03. Simultaneous Polls
• The time has come to implement simultaneous polls because of its underlying advantages
including reducing the costs of holding elections by the ECI and spending by political
parties.

04. Law Commission in its 255th Report on Electoral Reforms inter-alia

recommended strengthening of the office of the ECI in order to provide
more independence and tooth to the institution.

05. 'First Past the Post System'

• The 'First Past the Post System', in which a person with the highest votes (even with one
extra vote) is declared winner, needs to be changed. Rather, a minimum percentage of total
votes polled can be fixed for declaring a candidate as the winner. This could restrict the
criminals from getting elected as not everybody in a constituency votes on party lines.
 Electoral reforms suggested- At Party Level

01. Limit on Party Expenditure

• There must be a limit on the expenditure of the party. A time frame must be set for
accounting the expenditure of parties and must be made public before the actual date
of elections so that the voters and the concerned authorities could be informed.
• Consequently, audit of political parties accounts must be conducted in order to
make them accountable.

02. Political parties need to rise morally and self-discipline

themselves restricting their use of money power. Also, the flow of
black money into the election process needs to be taken care off.
03. Political parties need to be brought under the ambit of Right to
Information Act (RTI) Act, 2005.

04. All parties should be given equal media space or air time so as to
provide a level playing field.

05. At Voter’s Level

• Voters need to be educated regarding the significance of their vote. They
should be made aware & well-informed about the candidate they seek to
vote, thereby rejecting those who try to entice them with freebies.
Party System in India
Introduction

The Indian Constitution has established a parliamentary form of government

both at the Centre and at the State.

The members of the Lok Sabha and Vidhan Sabha are elected through elections by
citizens of the country. Therefore, the political parties which contest the elections
become part and parcel of the political system (party system) of the country.

The party system is a link between people and the government.

Mainly, 3 categories of Party system

One-Party Two-Party
System System

Multi-Party
System
 01. One-Party System
The one-party system or single party system is ruled by only one party; there is no opposition.

This authoritarian principle was first found in monarchies and later in a dictatorship, and now this system
exists in a few democratic countries.

However, elections are conducted even in such regimes only to show the façade of popular support, the
voter’s choice is limited to only one candidate.

The essential function of the one-party system is not to elicit decisions from the mass electorate on the
issues concerning people, but to ensure discipline and obedience among them.
In a system ruled by single party, the governance is marked the system
totalitarian and that curtails democratic rights in the hand of the ruling party
or king.

In many cases, this system involves the abolition of the freedom of speech
and expression, press and associations.

China has a One-party System.

 02. Two-Party System
A two-party system is one where only two parties, despite the presence of
other parties, have substantial support of the electorate.

One of them is ruling party, another opposition. It depends on which party gets
majority in elections.

The United States and the United Kingdom are examples of the two-party
system.

In the US, the Democratic and Republican parties are main parties, and in the
UK, are the Labour Party and the Conservative Party are two main parties.
 03. Multi-Party System
Multi-party system indicates existence of several parties in a political system.

In a multi-party system, several parties come together to form a coalition government and adopt a common
minimum programme for governance.
India and many European countries have a multi-party system.

The multi-party system is of two types: unstable and working.

• The unstable party system does not provide stability, and the best example of this system can be seen
in India during 1996- 98.
• The working multi-party system behaves like a two-party system and thereby tends to provide stability
to the government, even though they have more than two major political parties.
The multiparty system promotes the coalition government, and since the 1990s
India has been governed by the coalition governments.

The drawback of this system is that the members of the Council of Ministers
instead of working under the leadership of the Prime Minister seek guidance from
their party heads, and even a single Member of Parliament tries to blackmail or
manipulate government by threatening to withdraw its support.

Government instability is a major problem in this kind of party system.

Different phased of Party system in India

01. Congress Dominance Era (One-party Dominance vs.

Multiple Parties)

02. Breakdown of Congress System and Emergence of

the Non- Congress Parties (1967-1989)

03. Rise of Coalition Politics

 Phase 1- One-party dominance/ ‘Congress
System’
According to Rajni Kothari the concept of One-party dominance explained India’s party system during
the 1950s and1960s Indeed, he described the Congress party as ‘Congress System’.

As the leading party, the Congress had obtained an absolute majority of seats in parliament in the
first four general elections. Congress party enjoyed this position till 1967.

The Congress was such a dominant force that it secured comfortable majorities in the almost all the
elections to the Lok Sabha and the State Assemblies in 1952, 1957 and 1962.

Though it never secured more than 48 per cent of the votes in the Lok Sabha elections (the highest
being 47.78 in 1957), it always secured comfortable majorities in terms of seats (364 seats in 1952,
371 seats in 1957 and 361 in 1962).
In the state assemblies, except for a few, it secured comfortable majorities almost in all the assembly
elections.

First three general elections saw Congress domination in the system that was marked by multiparty
system vs one dominant party in the country.

This trend had changed after the fourth General election, Nehru’s demise and split in the party had
affected the Congress dominance in party system.

Even though the Congress was the single dominant party at the centre and in most states, it faced
competition from the non-Congress parties in several states. There are several instances of it-
• The strongest opposition it came from the CPI in Kerala in the second general election held in 1957.
• During the 1960s, the socialist parties, BKD/BLD/LD, left parties, the Jana Sangha, Republican Party
of India, DK, and several other parties in different states.
• They mobilized people on social, economic and political issues.
• This resulted in the defeat of the Congress in eight states and formation of the non-Congress
government.
With this, ended the dominance of the Congress which it had enjoyed at the same time both at the
centre and in most states. However, it did not result in complete erosion in the support base of the party.
• The Congress continued to enjoy support in several states and at the centre on several occasions.
But it ceased to be a single dominant party after the 1960s.
 Phase 2- Breakdown of Congress System and
Emergence of the Non- Congress Parties (1967-1989)
This change was indicated in the decline of Congress party dominance in Lok
Sabha elections and assembly elections, emergence of regional parties and
leaders in several states.

The regional parties and leaders not only challenged the dominance of the
Congress, they also represented aspirations and interests of different regions
and groups.
• The strongest challenge came from the leaders and parties that represented farming
communities and backward classes.
• In north India, Bihar and UP, Charan Singh-led parties bearing different names such as BKD, BLD,
or LD and socialists emerged as alternative to Congress.
• They gave priority to the issues of farming communities and backward classes.
• The introduction of reservation for backward classes in Bihar and UP in the 1970s, and setting up
of Mandal Commission to introduce reservation for backward classes in the central government
institution were the example of agenda which was different from that of the Congress.
During 1967- 1989, bipolarisation of political parties in the states formed a significant feature of
political system.

In Madhya Pradesh, Rajasthan, Himachal Pradesh and Delhi, the competition was
between the Congress and the BJS/BJP. In Kerala, Tripura and West Bengal it had been
the Congress and the left the principal competitors.

In Punjab, Jammu and Kashmir, Andhra Pradesh, Assam and Goa, Congress or a
regional party- led alliance emerged, though the BJP also gained substantially.

In the North-Eastern states, the contest was mainly between the Congress and a variety
of regional parties or their alliances. In Tamil Nadu, competition has been mainly
between the DMK and the AIADMK.
 Student’s movement led by Jayaprakash Narayan,1974
and imposition of emergency
Erosion of the credibility of public institutions during Indira Gandhi’s regimes, student’s movement led by
Jayaprakash Narayan in the 1974 and imposition of emergency in 1975-1977 added to the decline of the
Congress.

For the first time, the challenge to the Congress at the centre level was posed by the Janata Party. It
defeated the Congress.

Since the late 1980s after the period of Rajiv Gandhi, The Congress party has failed to generate a popular
leadership capable of accommodating varied interests and blunting the counterattack of its rivals.

In the following decades while the BJP emerged as the most dominant political party in India, unlike in
the preceding decades the Congress needed allies to retain its influence.

This set a long process of formation of coalition governments in India.

 Phase 3- Rise of Coalition Politics
Intensification of competitive politics has changed the party system.
• The competition shifted from rivalry between national parties into rivalry between
alliances and coalitions of national and state parties.
• Although coalition governments in the states and at the centre were formed in 1969
and 1977 led by
• The SVD alliances and the Janata Party respectively, it was since 1989 that coalition
politic became a pattern in Indian politics.
• Political parties made pre- and post-election alliances.
• In 1996, 13 non-BJP parties formed an alliance known as the United Front. Some of
the parties which formed this alliance included Janata Dal, Samajwadi Party, Dravida
Munnetra Kazhagam, Telugu Desam Party, Asom Gana Parishad, and Left Front.
• The United Front ran two governments at the centre with H.D Devegowda and I.K.
Gujaral as the Prime Ministers in 1996 and 1997-98 respectively.
Similarly, in 1999 coalition government of National Democratic Alliance (NDA) was formed with BJP as the
largest member of the coalition.

The Governments formed in 1989, 1990, 1991, 1996, 1998, 1999, 2004, 2009 and 2014 consisted of several
parties.

However, from 2004 there emerged predominantly two poled-alliance of political parties which formed
governments at the centre and in states.

• United Front Alliance (UPA) led by the Congress known as the - formed two central
governments with Manmohan Singh as Prime Minister from 2004-2009
• National Democratic Alliance (NDA) led by the BJP known as and from 2009-2014-
Formed two governments with Narendra Modi as the Prime Minister, from 2014-2019,
and in 2019.
Third Front - There also emerged the alliance of parties excluding the members of
the UPA and NDA, especially the Congress and the BJP. This came to be known as
the Third Front. But the Third Front has not been a stable alliance unlike the UPA
and the NDA.

There also emerged alliances in the states such as Assam, Bihar, MP, Nagaland and
Sikkim.
Limitation of Party system in India
01. Lack of well-knit organisation, ideology, internal democracy,
democratic leadership and policies and programmes.

02. Domination of personalities-

• Even though some parties have organisations, all kinds of parties – national, state or
unregistered parties have rallied behind a personality.
• Most parties in the states are known by their leaders, not by their policies or the parties
as such.

03. Lack internal democracy

• Political parties largely lack internal democracy in which decisions are not taken in
democratic way or an individual or group of individuals within the parties take major
decisions.
04. Articulate interests of specific sections

• Some parties articulate interests of specific sections of the society, rather than those of the all. In India,
weakening of party structure started in the post-Nehru era.

05. Factionalism and internal rivalries within the parties

• It have resulted in split and multiplication of parties in India.

06. Nexus between political parties, criminals, corporate sector and the corrupt
also constitute a limitation of party system in India
Democratic Decenralisation
 'Decentralization may take any of the four forms
(Meenakshi Sundaram)
(i) Deconcentration Handing over some amount of administrative authority to
lower levels.
Transferring responsibility for specifically. defined functions to
(ii) Delegation organizations that are out side the regular bureaucratic
structure and indirectly controlled by the central government.
Creation and strengthening of sub-national unit of the
(iii) Devolution government activities of which are substantially outside the
direct control of the central government.

(iv) Privatization Passing all responsibility for functions to nongovernmental

organizations independent of the government.
Democratic decentralization Vs. delegation

Delegation means the grant of authority from a superior to a

subordinate, to be enjoyed not as a right but as a derived
concession and that also to be exercised at the pleasure of the
superior.

The term ‘democratic decentralization’ on the other hand means

grant of authority by a superior to a subordinate as a right to be
enjoyed by the subordinate and not as a concession
 ‘ Democratic decentralization’ Vs. ‘Administrative
decentralization’
Democratic decentralization envisages association of more and more people with
government at all levels, national, regional and local.

• Whereas, Democratic decentralization stands for people’s right to initiate their

own projects for local well-being and the power to execute and operate them in
an autonomous manner.
Administrative decentralization originated in the need for efficiency in terms of
initiative, performance and speed of administrative personnel, particularly at the
lower levels.
• Whereas, Administrative decentralization means the right to freedom of
implementing projects. It involves the right of the administrative personnel to do
associated planning.
 Democratic decentralization’ Vs. ‘democratic
centralism’
Democratic centralism seeks to combine democracy with centralism.

• It is centripetal- There is transfer of authority to the extent of complete surrender

and concentration to the top levels from the popular levels which form the base of
the pyramidal structure.
• Democratic decentralization is centrifugal, which implies there is transfer of power
from top to lower levels. The democratic principle finds a wider application in the
concept of democratic decentralization than in the idea of democratic centralism.
The underlying idea of democratic centralism is to widen the area of democracy,
which may exist at the top by granting both authority and autonomy to lower level
representative bodies of the people.
Further, democratic decentralization and local self-
government are not one and the same. Though both aim at
greater participation by the people and more autonomy to
them in the management of their affairs.
• It can be said that democratic decentralization is a political ideal and local
self government is its institutionalized form.
• Democratic decentralization is a plea to further democratize local self
government to enable it to enjoy more authority, shoulder greater
responsibility, take more initiative and experience greater autonomy in the
management of the affairs of the local area.
Democratic Decentralisation and Panchayati Raj
Institution

Direct local democracy has been mandated constitutionally through the 73rd and
74th Amendments.

The principle of ‘Cooperative Federalism’ (decentralised implementation based

upon harmonious understanding between the three tiers of governance – Centre,
State and local.

Article 243A which provides for Gram Sabha in PRIs, has become the face of direct
democracy in India. It aims towards decentralization and participatory democracy.
There are now approximately 250,000 Gram Panchayats, 6500 Panchayat
Samitis and 500 Zila Parishads duly elected and governed by State
legislation.

To function effectively, these require rationalisation of the district and sub-

district administrative apparatus consistent with the State level Conformity
Acts
 The Constitution (73rd Amendment) Act, 1992
To implement Panchayati Raj in India in 1993 the Constitution (73rd
Amendment) Act, 1992 came into force to provide constitutional status to the
Panchayati Raj Institutions.

Salient features of the Act are:

• i) to provide three-tier system of Panchayati Raj for all States having population of over 20 lakh;
• ii) to hold Panchayat elections regularly every five years;
• iii) to provide reservation of seats for scheduled castes, scheduled tribes and women (not less
than one-third of total seats);
• iv) to appoint State Finance Commissions to make recommendations regarding financial powers
of the Panchayats; and
• v) to constitute District Planning Committee to prepare draft development plan for the district
as a whole.
 Provisions of 73rd Amendment
Mandatory Optional
• 2-3 tier Structure • Direct Election of Gram Panchayat’s
Chairperson
• Direct Elections • Role and Scope of Gram Sabha
• Reservation for Weaker Section • Powers and Function of the Each Tier
• Fixed Tenure • Financial Devolution
• State Finance Commission • Maintenance and Audit of Accounts
• State Election Commission • Composition and Functions of DPC
• District Planning Committees • Reservation to Adhyakshas’ Posts at
• (DPCs) • Gram Panchayat, Panchayat Samiti and Zila
Panchayat Level by Rotation.
The 30 subjects to be assigned to the PRIs under the Eleventh schedule of the Indian Constituion.
3 Tiers of Panchayati Raj Institutions (PRI)
1. Gram Sabha
• Every habitation community to have a Gram Sabha which will exercise command over
natural regions, resolve disputes and manage institutions under it, like schools and
cooperatives.

2. Gram Panchayat
• Elected body of representatives of each Gram Saha, also to function as an appellate
authority for unresolved disputes at lower level.
3. Block / Taluk Level Body
• This is the next higher-level body suggested by the committee. In addition to this the
committee has suggested an elected body of autonomous district council at the district
level with legislative, executive and judicial powers for tribal areas covered under the Sixth
Schedule.
 Evolution of Panchayati Raj Institution in India
There is a mention of village panchayats in Kautilya’s Arthashastra. The institution of
Panchayats existed in India since ancient times.

After the Constitution came into force, Article 40 of the Directive Principles of State
Policy made a mention of panchayats and Article 246 empowers the state legislature
to legislate with respect to any subject relating to local self-government.
• However, this inclusion of panchayats into the Constitution was not unanimously
agreed upon by the then decision-makers, with the major opposition having come
from the framer of the Constitution himself i.e. B.R. Ambedkar.

Since the Directive Principles are not binding principles, the result was the absence of a
uniform structure of these bodies throughout the country.
 Perspective on Panchayat
Members of the Constituent Assembly averred that the panchayat was an ancient
Indian institution and in our blood.

Pandit Jawaharlal Nehru stressed, the power and authority must be transferred to
elected panchayat so that the fear that the villages would make a mistake must not be
allowed to come in the way.

Gandhiji observed: grama panchayat shall be entrusted with the dispensing of justice.
The poor farmers need not go out of their village, need not spend hard-earned money
and also need not waste their valuable time to meet the litigations in towns where
they may be exploited by the lawyers.
He said “The greater the power of the people, the better for the people”.
Dr. B.R. Ambedkar’s critical view on Panchayati Raj was formed by the Indian reality
of village life in his period. It was substantiated by his own personal experiences also.

• So Ambedkar considered Gandhian ideas of Panchayati Raj as romantic.

• For Ambedkar those villages were nothing “but a sink of localism, a den of
ignorance and communalism”.
• The result was that the Constitution that was drafted under his Chairmanship did
not mention a word about Panchayati Raj.
Jawahar Lal Nehru took a middle path as both these perspectives carried weight in
its own right. Nehru did not take any action to implement Panchayati Raj in the first
10 years of his regime.
After 1957 with the recommendations of Balwantrai Mehta Committee Panchayati
Raj again became a focal point of action.
Community Development Programmes (CDP)
• India had implemented the Community Development Programmes (CDP) on the eve of Gandhi
Jayanti, the 2nd October, 1952 under the major influence of the Etawah Project undertaken by the
American expert, Albert Mayer.
• It encompassed almost all activities of rural development which were to be implemented with the
help of village panchayats along with the participation of people.
• In 1953, the National Extension Service was also introduced as a prologue to CDP. But the
programme did not yield much result.

Balwant Rai Mehta Committee

• In 1957, the National Development Council constituted a committee headed by Balwant Rai
Mehta to look into the working of community development programme.
• The team observed that the major reason for the failure of the CDP was the lack of people’s
participation.
• The committee suggested a three-tier PRIs, namely, Grama Panchayats (GPs) at the village level,
Panchayat Samiti (PSs) at the block level, and Zilla Parishad (ZPs) at the district level.
• this scheme of democratic decentralization was launched in Rajasthan on October 2, 1959.
Ashok Mehta Committee in 1977 did bring new thinking in the concepts and practice
of the Panchayat Raj.

• The committee recommended a two-tier Panchayat Raj institutional structure

consisting of Zilla Parishad and Mandal Panchayat.
• In order to use planning expertise and to secure administrative support, the
district was suggested as the first point of decentralization below the state level.
• Based on its recommendation, some of the states like Karnataka incorporated
them effectively.
• In subsequent years in order to revive and give a new lease of life to the
panchayats, the Government of India had appointed various committees.
The G.V.K. Rao Committee (1985) recommended making the “district” as the basic
unit of planning and also holding regular elections while the L.M.Singhvi
committee recommended providing more financial resources and constitutional
status to the panchayats to strengthen them.
 Issues with Local Governments in India
Insufficient Funding
• The money given to the local governments is inadequate to meet their basic requirements.

Inflexibility in spending the allocated budget

• The use of money is constrained through the imposition of several conditions.
• There is little investment in enabling and strengthening local governments to raise their own taxes and user
charges.

Lack of staff
• Local governments do not have the staff to perform even basic tasks. Furthermore, as most staff are hired by
higher level departments and placed with local governments on deputation, they do not feel responsible to
the latter; they function as part of a vertically integrated departmental system.

Untimely and delayed elections

• States often postpone the elections and violate the constitutional mandate of five yearly elections to local
governments.
• In Tamil Nadu, panchayat elections have not been held for over two years now, resulting in the State losing
finance commission grants from the Union government.
 Women Participation in PRIs
The Ashok Mehta Committee of 1978, after taking stock of the functioning of the PR
institutions and the state of rural development, emphasized upon the need to recognize
the role of women in the decision-making process and strengthening them further.

The 73rd and the 74th Amendments to the Constitution provides for the reservation of not
less than one-third of the total number of seats for women (including the number of seats
reserved for the SCs and STs).

Further not less than one-third of the total number of offices of chairpersons in the
Panchayats at each level shall be reserved for women. This would be rotated among
different Panchayats at each level.

The women's representation has been very encouraging in states like West Bengal,
Haryana, Maharastra and Rajasthan. In fact, in Kerala and Karnataka Gram Panchayat
elections, not only 33 percent seats but over 43 percent have been captured by women.
 Role of Women in Panchayats
Participation in election
• The Act provides for the reservation of not less than one-third of the total number of seats for
women. It is an attempt to ensure greater participation of women in election process directly
and indirectly.
• It would be the nursery of creating women politicians for national politics. Even the
participation of common women citizens in various activities such as attending Gram Sabha
meeting, etc. has reportedly increased (68-78 percent).

Participation in rural development

• Women are actively participating in rural development as per their capacity right from labourers
to policy- makers.
Participation in decision-making
• The participation of women as elected as well as non-elected members are rising due to
reservation for women. It acts as pull factor for women to participate in meeting. They give their
suggestions for various works and problems faced by them.
Women Concentrate More on Relevant Issues
• Some of the ways in which women are changing the governance are evident from the issues they
choose to tackle, like water, alcohol abuse, education, health, domestic violence etc.
• The women in power highlighted and promoted the advantages of proximity, whether it is a
drinking water source, a fuel source, a crèche, a health centre, a court of justice or an office of
administration.

Reducing corruption and violence

• Due to women representatives nexus of officers and male elected representatives are breaking,
which has a direct impact on reducing corruption.
• The role of local muscle power has substantially reduced due to active participation and
awareness of women about their rights and power.

Reduction in violence against women

• Domestic violence has substantially declined due to women pradhan or surpanch. These women
representatives take pro-actively take up such violence. The victims also feel free to share their
grievances to women representatives.
Reduction in violence against Dalits
• The dominance of upper caste patriarchs are substantially declined, hence the shackles of
caste is subsiding.
Practicing participatory democracy
• Growing participation of marginalised section in general and women in particular, is
transforming our democratic setup from representative democracy to participatory
democracy.

Economic Empowerment through Political Empowerment

• The entry of women into decision-making positions may lead to institutional reforms for
poverty reduction and economic empowerment of all specifically women and other
marginalized groups.
• The economic empowerment will further enhance the political empowerment of women.
 'The institution of "Sarpanch-Pati" or "Adhyaksha-Pati"
Limitations on women participation in PRIs intensified by illiteracy, gender
discrimination, and related restrictions on mobility that lead to proxy representation
by their male relatives in matters of planning, decision-making and implementation,
and non-conducive work environments.

Majority of women panchas are housewives and were either illiterate or educated up
to the primary level.

In large number of cases the decision to participate in the election was not their own.

If a seat was reserved for a woman, the men who were politically active convinced
their wife, mother, sister-in law to contest the election, in order to keep the family's
presence alive in local politics.
The phenomenon of "Sarpanch-Pati" suffer from
certain characteristics
(i)They display a lower level of political awareness.

(ii)They owe their primary loyalty to their family.

(iii)Their role of an elected representative is merely an extension of their role as a

housewife.

(iv)They serve the patriarchal interests of the family.

(v)They enter the political arena for protecting the constituency of their male
relatives and are prepared to vacate the same, once de-reserved. Illiteracy is
considered as the major cause for women to be used as sheer proxies.
 Major hindrances in women’s participation

Dual responsibility
• Women traditionally burdened with domestic workers face difficulties in balancing
the official work with their home.
Lack of security
• Well, sometimes due to lack of security women members fail to visit remote areas in
odd hours or attend meetings in faraway places. The gradual criminalization of
politics also is arresting their participation.
Lack of information and knowledge
• The limited exposure to formal education breeds information gap and dependency
on second-hand knowledge. In fact, consequently, political lineage determines the
distribution of benefits of the different schemes.
Due to the lack of exposure and experience
• Women members face difficulty in asserting themselves. And the fact
that the majority of women enter politics through reservation and
kinship arrangement only accentuates this problem.
 Pressure Groups in India
• Different types of pressure groups in India
• Functions, Role & Importance of Pressure Groups
• Negative Role of Pressure Groups
• Comparison between pressure groups and political parties
• Comparing Pressure groups in India with Western countries
• Political Parties and Pressure group
Introduction
• Pressure groups are organised associations, unions or organisation of
people having common interest.
• Their aim is to seek better conditions for their members through organised
efforts.
• They try to influence the legislature, executive and other decision makers
to have decisions made in their favour.
• Indian political parties are weak in principles and organisation. Therefore,
pressure groups are supposed to be very significant in the functioning of
the Indian Political System.
• In parliamentary system of government, pressure groups exert pressure
mainly on the executive with the assumption that legislature is under the
control of executive. Here executive includes both the political and
permanent executive.
Different types of pressure groups in India
01. The Business Groups
• The Business group is the most important and organised pressure
group in India. They are also most effective.
• They are independent of the political parties that exist and they have
enough resources with which they can safeguard their interests.
Business associations have existed in India even before Independence.
• They exert varied kinds of pressures, they try to influence planning,
licensing bodies and economic ministries
• Example: Confederation of Indian Industry (CII), Federation of Indian
Chambers of Commerce and lndustry (FICCI) and Associated Chamber
of Commerce.
02. Trade Unions
• The Indian Trade union movement has rapidly developed.
• Under communist influence, the All India Trade Union Congress (AITUC) was
established in 1920s.
• The emergence of the communist movement also played an important role in
the growth of trade unions in India.
• In 1948, the Indian National Trade Union Congress (INTUC) was established.
• Trade Unions in India are closely affiliated with the political parties; many
national political parties have got their own federations of trade unions.
• They seem to have been able to exert significant pressure at the policy
formulation level and their strength is well recognised by political parties and
government.
03. Peasants Organisations
• The rise of peasants groups in India has been mainly due to abolition of
Zamindari System, implementation of Panchayati Raj, land reform measures,
Green Revolution Movement.
• They gained power since 1960s. In 1936, the All India Kisan Sabha was
established and after 1942 the Communist Party of India acquired control over
it.
• Even though there are some important All India Kisan Associations like All India
Kisan Congress, All India Kisan Kamgar Sammelan, Akhil Bharatiya Kisan Sangh,
peasant groups have been mainly organised on territorial basis.
• Their demands relate to procurement prices of agricultural products, fertiliser
subsidy, tenancy rights, electricity charges, etc.
• The Bharatiya Kisan Party (BKP) in Western U.P. is considered the most
significant pressure group.
03. Students Organisations
• The student organisations in India have also acted as pressure groups both prior to
Independence and after Independence.
• The All Bengal Students Association was formed in 1928.
• The All India Students Federation (AISF) was established in 1936.
• After Independence the political parties continue to be affiliated with student
organisations.
• The All India Students Congress and later on the National Students Union of India
(NSUI) are affiliated to the Congress Party.
• The All India Students Federation and Students Federation of India (SFI), are controlled
by Communist Party of India.
• Akhil Bharatiya Vidyarthi Parishad (ABVP) is affiliated to BJP.
• They try to pressurise governmental policy on various crucial issues, their activities are
not just confined to educational issues. Like the students organisations we also have
teachers' associations.
04. Community Associations
• These community groups are organised on the basis of caste, class and
religion.
• Some examples of caste organisations are Scheduled Caste Federation,
Backward Caste Federation, etc.
• Amongst other organisations there ire some like Vishwa Hindu Parishad,
Northern and Southern India Christian Conference, etc. which represent
interests that are supposed to safeguard their respective religions.
Functions, Role & Importance of Pressure
Groups
01.Interest Articulation
• Pressure Groups bring the demands and needs of the people to the notice of the decision-makers.
• The process by which the claims of the people get crystallized and articulated is called interest
articulation.
02. Agents of Political Socialisation
• Pressure groups are agents of political socialisation in so far as they influence the orientations of the
people towards the political process.
• These groups play a vital role as two-way communication links between the people and the
government
• Pressure groups play a vital role in the legislative process, not only as important structures of
interest articulation, but also as active agencies engaged in lobbying with the legislators for securing
desired laws or amendments in laws and policies of the government.
03. Role in Judicial Administration
• Pressure Groups try to use the judicial system for securing and safeguarding their interests.
• Interest groups often seek access to the court for redressal of their grievances against the
government as well as for getting declared a particular decision or policy as unconstitutional.

04. Formulation of public opinion

• Each pressure group is continuously engaged in evaluating all such laws, rules, decisions and
policies which have a direct or indirect bearing on the interests it represents.
• It always places the pros and cons not only before its members but also before the general public
for eliciting popular support as well as for catching the attention of the government.

05. Improving the quality of government

• Consultation with affected groups is the rational way to make decisions in a free society.
• It makes government more efficient by enhancing the quality of the decision making process – the
information and advice provided by these groups helps to improve the quality of government
policy and legislation.
• Freely operating pressure groups are essential to the effective functioning of liberal democracy.
 Negative Role of Pressure Groups
01. Promotion of Sectional interest
• The influence exerted by pressure groups is reflective of sectional interest rather than in
consonance with the larger public interest.
• Example: SNDP is an organization that works for the betterment of the Ezhava
community in Kerala alone

02. Divisive tendencies

• Pressure groups promote interests of multiple sections which may be conflicting in
nature. This has a tendency to lead to polarisation which affects the unity of our country
• Example: Ghar wapsi movement of Vishwa Hindu Parishad to facilitate re-conversion of
non-hindus to hindus has soured relations between Hindu and Muslim communities
03. Anti-Development
• Pressure groups may exert unwanted and ill-conceived pressure to scuttle
developmental projects of government. They may mobilize public opposition to
achieve the same.
• Example: Recent protest in Kudankulam nuclear power plant

04. Asymmetrical Benefit

• Greater possession of economic and political resources with small number of
pressure groups help them to corner benefits accorded by government policies
and decisions.
• Example: Large scale businesses and entrepreneurs are likely to benefit better
from the newly implemented goods and services tax system as compared to
MSMEs. The greater influence of pressure groups such as FICCI and CII may have
played a part in the same.
 Difference between pressure groups and political
parties
01.Outside and inside concept-
• Pressure groups are the public bodies acting behind the political parties. Whereas, political parties constitute the
government.
• Pressure groups work as an influencing force behind the formulation of policies. So, pressure groups are
indirectly involved in governing whereas political parties are directly involved.
02. In terms of pressure-
• Pressure groups pressurize the executive and legislature departments to achieve its aims whereas political
parties have to coordinate in the working of executive and legislature.
03. Methods used (Conventional and non-conventional) -
• Conventional methods include lobbying, letter writing, marches, petitioning, collecting information for
parliamentarians, consultation and giving evidence.
• Non-conventional methods may be used by groups who are antagonistic in their attitudes towards the state.
• Direct action can include a number of strategies such as blockading or occupying an area, holding illegal
marches, holding talks to raise public awareness and staging theatrical events.
• Whereas, political parties use only conventional and constitutional methods to execute their duties and
functions.
03. Interest-
• Pressure groups operate for the interest of their own members. They emerge
and dissolve as per the need of certain groups.
• Whereas, political parties work for party and national interest and not just for
any particular objective. They are held accountable for the welfare of people.
04. Political ideology-
• Pressure groups do not necessarily have any particular political ideology. They
may be just interested in meeting their demands.
• However, political parties are always wedded to their ideologies.
• For example, the Congress party follows the ideology of secularism, socialism
and democracy. BJP stands against ‘Pseudo secularism’ has consolidated Hindu
vote bank.
 Comparison of Indian and Western Pressure groups
The American pressure groups are regarded as the fourth organ of the government but the Indian
pressure groups are not yet able to play such significant role in politics.

In India and Great Britain the cabinet and civil service are the main targets of pressure groups for
lobbying purposes rather than the parliament.

However, the targets of American pressure groups are the Congress and its committees rather than the
President for lobbying purposes.

Indian pressure groups based on caste, religion, region, etc. are more powerfull than the modern groups
like business organisations.

The USA pressure groups take interest in foreign policy issues which in India pressure groups do not
seem to have interest in foreign policy matters. Comparatively, the Indian pressure groups are concerned
more with domestic policy issues and problems, and less with foreign policy matters.
 Political Parties and Pressure group
Both pressure groups and political parties are extra-constitutional agencies and
play a crucial role in the political process.

Sometimes, pressure groups become political parties. In Maharashtra, The Shiva

Sena was a pressure group and it has now become a political party.

Similarly, The Karnataka Rajya Sangh (KRRS) in Karnataka, was initially a

pressure group. After sometime, the KRRS became a political party in Karnataka.

In recent time origin of Aam Adami Party in Delhi can also be traced from
pressure group and a movement against corruption.
4 types of pressure groups as per
Gabriel Almond and Powell

Institutional Associational
pressure groups Pressure Groups

Non
Anomic
Associational
Pressure groups
Pressure Groups
 Institutional Pressure groups
It is found within Political Parties, legislatures, Bureaucracies and Armies.

These are formal organizations with designated political and social functions other
than interest articulation.

These groups articulate their own interests and also represent the interests of other
groups in the society.

Examples: The Congress Working Committee, The Congress Parliamentary Board, The
Central Election Committee, The Bureaucracy ,The Army
 Associational pressure groups
These groups are specialized structures for interest articulation.

In India there are two types of associational pressure Group

• 1.Occupational
• 2. Community
Trade union is a classical example of occupational groups and students’
organization groups as community groups.
Religious denominations, Civilian groups also plays a vital role in the
Indian politics
Non associational pressure groups
• These groups function in a latent manner and informal way.
• They are also called traditional groups.
• Caste groups can also be included in it.
• Language groups, syndicate, the ideological left and the young turks
are some of its examples.
• It is based on ethnic and kinship bond.
• The examples can be communal and religious groups.
Anomic pressure groups

It is usually found in developing countries.

It is a spontaneous breakthrough into the political system in forms of riots,

insurgencies, assassinations, terrorism and is devoid of human values.

The immediate Sikh riots of 1984 after the assassination of Mrs. Indira Gandhi
by Sikh body guards can be cited as an example of anomic action and the body
involved in it is regarded as anomic group.
 Jean Blondel’s Classification

Community interest
groups Associational groups

Customary Institutional Protective Promotional

Groups Groups groups groups
 A. Community interest groups
The community interest groups are formed to promote community interests.

The social relations are in the back of their formation. Community life brings people
together.

Most of the community groups are informal; only some are formally organised.

They put pressure on the government to seek state protection and assistance.

The community groups are divided between- Customary and Institutional groups

The groups that essentially follow the customs and traditions of the community fall in
the category of customary groups.
The groups of castes and sub-castes in India are of this type.

Blondel has described those community groups as institutional who

are formed by people living together for a long time, and who
develop common social relationship.

Examples: welfare associations of serving or retired soldiers like the

veterans unions, the civil servants welfare associations, or the senior
citizens’ welfare bodies.
 B. Associational groups
The associational groups identified by Blondel generally follow the pattern of Almond and
Hitchner & Levine. They, thus, have more or less homogeneous clientele.

These groups have two sub-categories:

• (a) Protective groups: The protective groups try to protect the interests of their
members like those of trade unions and associations of traders or professionals.
• (b) Promotional groups: The promotional groups, on the other hand, have
membership or large cross-sections of community.
The promotional groups may include group for disarmament, or the Greens seeking
promotion of environmental security.
• Besides, the protective groups generally manage to have greater influence over
policymaking process than the promotional groups.
As Robert Salisbury wrote, in the context of British groups, the protective groups
have “substantial influence over policy”, whereas “promotional pressure, even when
they mobilise a large following, tend to be regarded as having only a minor impact on
public decisions.”

Finally, the protective groups generally have more flexible strategies, while the
promotional groups face the problem of goal adaptation following the change in
political situation.

The protective groups never run out of the agenda, while the promotional groups
are terminal in nature, at least in conception.
 Maurice Duverger’s Classification
Maurice Duverger talks of two main problems:
• First, whether those groups should be called pressure groups whose only function is to exert political
pressure, or even those can be called pressure groups which have multi-dimensional activities.
• Second, whether the term pressure groups should be used only for non-official groups or even official
groups can be brought in this category.
Based on above problems Duverger offered the following classification:
• Exclusive Groups
• Those groups whose only function is to put pressure on the political system.
• Example: Centre for Public Interest Litigation (CPIL)
• Partial Groups
• They are essentially set up to be the promoters of interests of their members, but in that process do
occasionally use pressure tactics.
• Several associations of professionals (doctors, lawyers, chartered accountants, and architects), of
university or school teachers, or women activists, or those concerned with cultural activities also, if
needed, try to put pressure on civil servants, legislators and others.
But, there can be no rigidity in this classification. Any partial group may take to whole time pressure politics.
Duverger makes a distinction between
• (i) Private Groups and
• (ii) Public Groups.

The first country to have experienced the pressure groups was the United States, where
private institution groups had begun to use pressure on the state apparatus.

Gradually, even official or public groups also joined in the process of pressure politics.

The official groups may even include those officials who secretly align themselves with
one or more pressure groups to serve certain interests.
Duverger also refers to, what he calls pseudo-pressure groups

• These groups include specialists who use pressure politics not for
themselves, but for others.
• This is often done for monetary consideration.
• Duverger includes in this category, the technical experts as well as
information (mass) media.
Pressure groups and Civil Society
Civil society organizations are organizations and associations set up by the citizens
of a country to pursue certain interests.

While some of the civil society organizations act as interest groups to promote
their respective interests, others pressurise the government to bring about certain
public policies in their group’s interests.

In India, civil society groups like Mazdoor Kisan Shakti Sangathan (MKSS,
Rajasthan)and Association for Democratic Reforms (ADR) are persuading political
parties to create avenues for legitimate funding to political parties with
transparency and disclosure.
However, what differentiates pressure groups from CSOs is that pressure groups
are more power-centric than CSOs which are interest oriented.

Moreover, the domains of pressure groups are relatively restricted compared to

CSOs whose arenas of functioning are usually vast and diverse.

Some important leaders of Civil Society Organizations:

• Aruna Roy (Mazdoor Kisan Shakti Sangathan), Ela Bhatt (SelfEmployed

Women’s Association), Medha Patkar (Narmada Bachao Andolan) and Anna
Hazare (India Against Corruption).
Comparing Pressure group and Civil Society
Parameter of Pressure Group Civil Society
Comparison
Structure Membership organization Mostly non-membership organization
Procedure Conflict oriented and Mutual Consent Oriented
instrumental reasoning and Constitutive
Reasoning
Substantiation Shares common interest Ideational, Public Claims

Objective To influence people who To fight for the

have the power to make a betterment of society
decision
Function To make government or To work for Protection,
decision-maker more Social cause, Advocation
attentive to needs of the on the favor of Public
people
 Envisaged role and Actual
working of Executive in India
• Union Executive in India • Prime Minister in relation to Parliament
• Principle of Collective Responsibility • The Indian President
• Cabinet system • President is a Titular Head
• Ministry Making in India compared to Britain • The Doctrine of ‘Aid’ and ‘Advise’
• Position of Prime Minister • Safeguards against dictatorship of Cabinet
• Ascendancy of Prime-Minister in the Cabinet
Source-
NCERT
 Union Executive in India
The Union Executive consists of the President, the Vice-President, the Council of Ministers and the Attorney
General

Art. 52 provide that there shall be a President of India. The executive power of the Union shall be vested in
the President (Head of the State) (Art. 53).

All executive functions are executed in the name of President; authenticated in such manner as may be
prescribed by rules to be made by President (Art. 77).

The President has wide administrative powers (to appoint and dismiss officers, ministers, etc.), military
powers, and diplomatic and legislative powers.

Article 73 provides that executive power of Union shall extend to the matters with respect to which
Parliament has power to make laws and includes the exercise of such rights, authority and jurisdiction as
are exercisable by the Government of India by virtue of any treaty or agreement. Thus, executive power is
co-extensive with legislative powers of Union.
 Principle of Collective Responsibility

Collective Ministerial Responsibility in the sole crux of Parliamentary

democracy. The principle of collective responsibility represents
ministerial accountability to the legislature.

In India, the doctrine of collective responsibility of the Union Executive

to the House of the People and of the State Executive to the Legislative
Assembly is specifically enshrined in the Constitution [Article 75 (3)].
According to Dr. B. R. Ambedkar, Collective Responsibility is
enforced by the enforcement of two principles-

01. No person shall be nominated to the cabinet except on the advice of the
Prime Minister.

02. No person shall be retained as a Member of the Cabinet if the Prime

Minister says that he should be dismissed.

It is only when the Members of the Cabinet, both in the matter of their
dismissal are placed under the Prime Minister, that it would be possible to
realize our ideal of collective responsibility.
 Actual working of Executive in India
If a particular decision is taken by the Prime Minister without consulting his
colleagues, they can oppose it when it is placed before the Cabinet.

Sometimes the Prime Minister did not take any of his Cabinet Ministers into
confidence even while taking some of the most important decisions.

For example, this happened when internal emergency was declared on June 25,
1975. The Prime Minister did not consult any one of her colleagues.
One of the expectations on which the makers of our Constitution had depended
largely is that the Parliament would be able to control the executive through its
instrument of collective responsibility.
V.K.Krishna Menon and Guljari Lai Nanda had opined that collective responsibility is
largely a myth in the Indian Cabinet.
 Cabinet system
Cabinet is a small body of persons drawn from the majority party (or the
majority coalition) in the legislature. The members of Cabinet are selected by
the Prime Minster and it is a body of people sharing the same principles and
outlook as those of the Prime Minster.

Walter Bagehot said that the “The Cabinet is the hyphen which joins, a buckle
which fastens, the legislative part of the State.”

In a parliamentary democracy, unlike in the presidential system, there is a

degree of fusion of the two organs of the State, the Political Executive and the
Legislature.
 Conventions of the cabinet system are:
Members of the cabinet are, as a rule, members of parliament;

They are necessarily members of the majority, whether of one Party or of a coalition;

They hold office only while parliament and the country do not obviously withdraw their
confidence from a minister or the entire cabinet;

The cabinet acts as unit in face of other governmental bodies and this implies a certain
predominance of the Prime minister over his colleagues. The principal collegiate nature
of the executive is assured by the prominent position of the Prime Minister who is
responsible
Actual working of the Cabinet system
D.D. Basu has listed three reasons for our Cabinet system
of government having not worked as successfully, as in
England. These reasons are:
• we have got a system of multiple parties, some of which are of
mushroom growth and have very small following,
• very few of these parties have any Firm or defined policy or ideology
which can be presented as an alternative to the that advocated by the
ruling party and
• the tradition of the party system has been destructive because of its
origin in the upsurge against the imperial rule.
Role of Cabinet
Final determination of the policy
• The Cabinet’s main role or function is to submit the final determination of
the policy to the Parliament but detailed work on policy matters is done
outside Cabinet meetings; the Cabinet will consider decisions referred to it
by extra-Cabinet decision- makers;
Kitchen Cabinet
• there is nothing new in Prime Ministers using a few senior Ministers, rather
than the whole Cabinet, to keep a general oversight of the government’s
progress and to deal with particular questions.
Cabinet committee
• A committee of Ministers established by the Prime Minster, with formal
procedures and servicing by the Cabinet Secretariat; there must be prime
ministerial authority for a committee’s existence.
 Ministry Making in India compared to Britain
01. Institution of the shadow cabinet
• It makes makes the selection of ministers smooth in UK. The party in opposition always has the
nucleus of a cabinet in the shadow cabinet which itself is formed after taking in to account all the
important considerations.
• A shadow cabinet is a cabinet-in-waiting and represents the best of talents and experience
within the party. It also ensures that there is not much of a breaking in period for the new
ministers as they would have acquired adequate knowledge of their subjects well before
assuming ministerial responsibilities.

02. Pressures and influences

• The Prime Minister is not subjected to the type of pressures and influences that we find in India
from a large number of competing aspirants for berths in the cabinet.
• The claims of individual aspirants are often backed by factions and lobbies within the party which
have to be taken into account: In the UK the Prime Minister may some times have to face
pressures on behalf of particular aspirants to ministerial positions, but such instances are not
very common.
03. Problem of suitable candidates
• British counterpart does not have is to find suitable candidates from within his own
party to man all the positions in the cabinet. Jawaharlal Nehru's first cabinet consisted of
fourteen members including the Prime Minister, but six of them were from outside the
Congress party.
04. Jumbo cabinets
• Though, this is no longer a problem for central govt. but in the states this practice of
having too many ministers with- too little work is not merely a waste of public money
but highly detrimental to the efficient conduct of public business.
• Article 72 of the Constitution prescribes that the total number of Ministers, including the
Prime Minister, in the Council of Ministers shall not exceed 15 per cent of the number of
members of the House of the People. This limit on the size of council of minister was
added thought Ninety-first Amendment Act in 2003.
• Therefore, Unlike every single government since 1989, Mr. Modi does not have any
‘coalition compulsions’ like his predecessors for accommodating many ministers.
 Position of Prime Minister
In the entire Constitution the words 'Prime Minister’ occur only in Articles
74, 75 and 78 of our Constitution. They merely provide-

• (i) for his appointment by the President,

• (ii) for the appointment of other Ministers by the president on his ‘advice’,
• (iii) that “the Council of Ministers shall be collectively responsible to the House of the
People”,
• (iv) that the Prime Minister shall communicate to the President all decisions of the
Council of Minister s relating to the administration of the affairs of the Union and
proposals for Legislation as the President may call for;
• (v) and that 'if the President so requires’, he shall 'submit for the consideration of the
Council of Ministers any matter on which a decision has been taken by a Minister but
which has not been considered by the Council.”
But, in practice, with the exception of the above immaterial provisions, in
all other articles of the Constitution, the word ‘President’ is conceived as
actually referring to the ‘Prime Minster’. In most of the Constitutions the
powers of the President or Prime Minister are defined and limited by
constitutional provisions. What is invisible is supposed to be real, and what
is visible is dismissed as a mere formality.

Active involvement of the Prime Minister in the conduct of foreign affairs

and international relations and the growing importance of ‘summit’
meetings have served to further enhance the power and influence of the
Prime Minister.
A Prime Minister wields an authority by solid party
backing and confidence among party leaders that a
Roman Emperor might envy or a modem dictator
strives in vain to emulate.

This may sound to be exaggerative, but it shows how

much importance the institution of Prime
Ministership had acquired in the Parliamentary
system over the years.
Ascendancy of Prime-Minister in the Cabinet
In Britain, the Prime Minister’s position and authority, rests mainly on convention.
In India, Prime Minister is the creation of the Constitution, which gives formal
recognition to his pre-eminent position by laying down that “there shall be a Council
of Minister at the head...”.

He is not only the head of the Council of Ministers but also the President’s Principle
adviser. The high position invests him with the special responsibility to see that the
institution functions as a team.

Jawaharlal Nehru “he is a lynch-pin of the Government.” He is the manager -in -

chief of the Government’s business and in a real sense, he carries on his shoulders
the responsibility for the formulation and execution of Government policy.
The powers and the, position of the Prime Minister vis-a vis the Council of Ministers, the President and
Parliament depends upon situations and political circumstances, prevailing at a particular time.

So far as the Prime Minister’s position in the Council of Ministers is concerned, it depends upon several
factors, such as-

• Party Position in the Lok Sabha;

• Position and hold of the Prime Minister in her/his own party.

These factors are mainly the reason behind the strength of PM Modi instead of any charisma.
If there is someone in the party to challenge his/her leadership, this may to that
extent, affect his/her position.

Such a situation existed between 1947-52 when Nehru was the Prime Minister, and
Patel was in the position to challenge his leadership. Situation was more or less such
between 1964-67, as a result Morarji Desai has to be appointed as the Deputy Prime
Minister.

It is worthwhile to recall Ramsay Macdonald that “it is easier to create a revolution

than to make a cabinet.”
 Prime Minister in relation to Parliament
The position of the Prime Minister in relation to Parliament is largely determined by the party-
position in the Lok Sabha. Whether his party has an absolute majority in the Lok Sabha or not, will
make a qualitative difference.

Dissolving Lok Sabha : In India, also, the British convention of dissolving Lok Sabha, on the
recommendation of the Prime Minster has been largely followed.

Thus, in 1977, Sixthth Lok Sabha was dissolved on the recommendation of then Prime Minster
Choudhary Charan Singh, even though he had never proved his majority in the Lok Sabha. Chandra
Sekhar’s recommendation to dissolve that Lok Sabha was also accepted by the President.

Walter Bagehot pointed out- the Cabinet is a creature, but, unlike all other creatures, it has the
power of destroying its creator, i.e. the House of Commons.
 The Indian President
The President of India is the executive Head of State and Supreme Commander of Armed Forces. The
election of the President is done by an Electoral College as per the provisions laid down in the
Constitution.

These powers have been classified by political scientists under the following head:

• (a) Administrative power; i.e. Execution of the laws and administration of the
department of government. Article 112,113,117and 274.
• (b) Military power: i.e., the command of the armed forces and the conduct of war.
Article 352, 356, 359, and 360.
• (c) Legislative power: i.e., the summoning and prorogation of the Legislature,
initials of the assent to legislation etc. Article 85, 86, 87, 80,87and 11 land 123.
• (d) Judicial power: i.e., power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted
of any offence, including sentence of death (Article72) President is conferred
absolute immunity from judicial process, both civil and criminal (Article 361).
Some constitutional limitations on power of president

Firstly, he must exercise these powers according to the

Constitution (Article 53 (1))

Secondly, the executive powers shall be exercise by the president

of India in accordance with the advice of council of ministers.
Article 74(1), 75, 77(3), 78 and 352(3) of Indian Constitution.
President is a Titular Head
The President of India, like the British Monarch is merely a nominal or titular head. The real
power is vested in the Council of Ministers.

Ram Jawaya V. Punjab case

• The Supreme Court had held that our constitution had adopted the English system of
a Parliamentary executive and the President was a constitutional head of the
executive and the real power lay in the Cabinet.

U.N.R. Rao V. Indira Gandhi,

• the Supreme Court had stated that the formal provisions of the Indian Constitution
should be read in the light of conventions operating in England governing the
relationship between the Crown and the Ministers.
R.C. Cooper V. India,
• the Supreme Court said that the President being the constitutional head, normally acts in all
matters including the promulgation of an Ordinance on the advice of his Council of Ministers.

Shamsher Singh Vs State of Punjab

• The Supreme Court states that it is mandatory for the President to act on the advice of the
Council of Ministers.
 The ‘Aid’ and ‘Advice’ Doctrine

The phrase “aid and advice” should be literally construed. It is nowhere said that the
President must accept that advice.

Where the President has to accept the advice it is specifically stated so e.g. Article
75(1) where the President has to appoint other ministers on the advice of Prime
Minister.

The aid and advice, is in respect of the exercise of the President’s executive functions.
It does not mean rights and powers. There is distinction between executive powers
and executive functions.
V.G. Ramachandran gives salient factors against this theoiy of the Cabinet’s
advice being binding on the President:

The proposal to incorporate Instrument of instructions that the President will be

bound by the advice of the Ministers was deleted by the Constituent assembly.
So was omitted the proposal to follow the Irish Constitution and provide specific
Article to the effect that the President should accept the advice of the Ministers.

Article 78 giving specific powers to the President for eliciting information and to
refer the matter to the Cabinet shows that he has specific duties cast upon him.
Certain spheres where the cabinet cannot
advice President
• Dismissal of a Prime Minister who does not command the confidence of his
party.
• Dismissal of a Ministry in which Parliament has no confidence.

• Dissolution of the House itself, if it has lost, according to the President, the
confidence of the people.
• The exercise of his powers as supreme commander in National emergency,
particularly when Ministry of Defense has failed to defend the country.
• The power to issue ordinances when Parliament is not in session or during
emergency. (This is Legislative power).
 Safeguards against dictatorship of Cabinet
Once Dr. K.M. Munshi observed that “the threat of Cabinet dictatorship may endanger the quasi-federal
structure of the Union, as well as the democratic processes and freedoms guaranteed by the
Constitution.

This would arise in every case when the cabinet forces the President to accept the
Ministerial advice, regardless of his point of view.

This can be avoided by: -

• 1. The President’s scrupulous exercise of his powers and functions vested in him
by the Constitution.
• 2. By his readiness whenever necessary to fulfill the responsibility vested in him by
his oath for the well being of the people of India and for the defence of the
country;