APPROACH TO INDIAN POLITY -

SYLLABUS, SCHEMES & SOURCES

Syllabus
The Highlighted parts of the given syllabus will be covered in the Lectures.
• Preliminary Examination 0 00:02:06
o Paper l
► Current events of national and international importance.
► History of India and Indian National Movement.
► Indian and World Geography-Physical, Social, Economic Geography of India and the World.
► Indian Polity and Governance-Constitution, Political System, Panchayati Raj, Public Policy,
Rights Issues, etc.
► Economic and Social Development - Sustainable Development, Poverty, Inclusion,
Demographics, Social Sector Initiatives, etc.
► General issues on Environmental ecology, Bio-diversity and Climate Change - that do not require
subject specialization.
► General Science.

• Mains Examination 0 00:04:53

o General Studies-I:
► Indian culture will cover the salient aspects of Art Forms, literature and Architecture from ancient
to modern times.
► Modern Indian history from about the middle of the eighteenth century until the present­
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w significant events, personalities, issues.
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► History of the world will include events from 18th century such as industrial revolution, world
:I: wars, redrawal of national boundaries, colonization, decolonization, political philosophies like
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vi communism, capitalism, socialism etc.-their forms and effect on the society.
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ID ► Salient features of Indian Society, Diversity of India.
► Role of women and women's organization, population and associated issues, poverty and
developmental issues, urbanization, their problems and their remedies.
► Effects of globalization on Indian society.
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0 ► Social empowerment, communalism, regionalism & secularism.
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z ► Salient features of world's physical geography.
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► Distribution of key natural resources across the world (including South Asia and the Indian
subcontinent); factors responsible for the location of primary, secondary, and tertiary sector
g industries in various parts of the world (including India).
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► Important Geophysical phenomena such as earthquakes, Tsunami, Volcanic activity, cyclone
0:: etc., geographical features and their location-changes in critical geographical features (including
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a.. water-bodies and ice-caps) and in flora and fauna and the effects of such changes.
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o General Studies- II:
► Indian Constitution-historical underpinnings, evolution, features, amendments, significant
provisions and basic structure.
► Functions and responsibilities of the Union and the States, issues and challenges pertaining to
the federal structure, devolution of powers and finances up to local levels and challenges therein.
► Separation of powers between various organs dispute redressal mechanisms and institutions.
► Comparison of the Indian constitutional scheme with that of other countries.
► Parliament and State legislatures-structure, functioning, conduct of business, powers &
privileges and issues arising out of these.
► Structure, organization and functioning of the Executive and the Judiciary-Ministries and
Departments of the Government; pressure groups and formal/informal associations and their
role in the Polity.
► Salient features of the Representation of People's Act.
► Appointment to various Constitutional posts, powers, functions and responsibilities of various
Constitutional Bodies.
► Statutory, regulatory and various quasi-judicial bodies.
► Government policies and interventions for development in various sectors and issues arising out
of their design and implementation.
► Development processes and the development industry -the role of NGOs, SHGs, various
groups and associations, donors, charities, institutional and other stakeholders.
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► Welfare schemes for vulnerable sections of the population by the Centre and States and the w
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performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the 0::
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protection and betterment of these vulnerable sections. l/)
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► Issues relating to development and management of Social Sector/Services relating to Health, l/)
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Education, Human Resources. w
► Issues relating to poverty and hunger. :::r:
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► Important aspects of governance, transparency and accountability, e-governance applications, ui'
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models, successes, limitations, and potential; citizens charters, transparency & accountability ID
and institutional and other measures.
► Role of civil services in a democracy. I
► India and its neighborhood- relations.
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► Bilateral, regional and global groupings and agreements involving India and/or affecting India's 0
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► Effect of policies and politics of developed and developing countries on India's interests, Indian 2S
diaspora. �
► Important International institutions, agencies and fora- their structure, mandate. �
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 o General Studies-Ill:
► Indian Economy and issues relating to planning, mobilization, of resources, growth,
development and employment.
► Inclusive growth and issues arising from it.
► Government Budgeting.
► Major crops-cropping patterns in various parts of the country, - different types of irrigation and
irrigation systems storage, transport and marketing of agricultural produce and issues and
related constraints; e-technology in the aid of farmers.
► Issues related to direct and indirect farm subsidies and minimum support prices; Public
Distribution System- objectives, functioning, limitations, revamping; issues of buffer stocks and
food security; Technology missions; economics of animal-rearing.
► Food processing and related industries in India- scope' and significance, location, upstream and
downstream requirements, supply chain management.
► Land reforms in India.
► Effects of liberalization on the economy, changes in industrial policy and their effects on
industrial growth.
► Infrastructure: Energy, Ports, Roads, Airports, Railways etc.
► Investment models.
► Science and Technology- developments and their applications and effects in everyday life.
► Achievements of Indians in science & technology; indigenization of technology and developing
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w new technology.
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(/) issues relating to intellectual property rights.
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(/) ► Conservation, environmental pollution and degradation, environmental impact assessment.
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► Disaster and disaster management.
:I: ► Linkages between development and spread of extremism.
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vi ► Role of external state and non-state actors in creating challenges to internal security.
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ID ► Challenges to internal security through communication networks, role of media and social
networking sites in internal security challenges, basics of cyber security; money-laundering and
its prevention.
► Security challenges and their management in border areas - linkages of organized crime with
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o General Studies- IV:

g ► Ethics and Human Interface: Essence, determinants and consequences of Ethics in human
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actions; dimensions of ethics; ethics - in private and public relationships. Human Values -lessons
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 ► Attitude: content, structure, function; its influence and relation with thought and behaviour;
moral and political attitudes; social influence and persuasion.
► Aptitude and foundational values for Civil Service, integrity, impartiality and non-partisanship,
objectivity, dedication to public service, empathy, tolerance and compassion towards the
weaker-sections.
► Emotional intelligence-concepts, and their utilities and application in administration and
governance.
► Contributions of moral thinkers and philosophers from India and world.
► Public/Civil service values and Ethics in Public administration: Status and problems; ethical
concerns and dilemmas in government and private institutions; laws, rules, regulations and
conscience as sources of ethical guidance; accountability and ethical governance; strengthening
of ethical and moral values in governance; ethical issues in international relations and funding;
corporate governance.
► Probity in Governance: Concept of public service; Philosophical basis of governance and
probity; Information sharing and transparency in government, Right to Information, Codes of
Ethics, Codes of Conduct, Citizen's Charters, Work culture, Quality of service delivery,
Utilization of public funds, challenges of corruption.
► Case Studies on above issues.

The GS - 2 Paper Syllabus can be divided into 3 parts

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• Governance and Polity w
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• International Relations 0::
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• Social Justice l/)
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Reason for scoring less mark by the students in GS- 2 Paper
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• The type of questions has changed from factual to analytical in the last 7-8 years, but still the students :::r:
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devote more energy in preparing the factual part. uf
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• Flawed reading of the syllabus: Along with general understanding of the whole constitution ID
specialized focus should be given to the topics explicitly mentioned in the Syllabus.
• Most students are not able to interpret the questions correctly. Understanding the demand of the I
question means half the battle has been won.
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• Lack of sufficient answer writing practice is another major issue. There is a need for writing practice to 0
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Reference Books and Newspapers 0 01:00:21 �
• NCERT Books of Political Science-Class XI and XII. �
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• The Constitution of India by P. M. Bakshi.
• One Newspaper-Indian Express/The Hindu. 0::
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• Debates on Youtube-The Wire, The Print, Sansad TV (Important for International Relations). <(
 • Yojana Magazine.
• For lR
o Pax lndica by Shashi Tharoor,
o Rajiv Sikri Book on India's Foreign Policy.

Coverage of Topics in Polity/Constitution � 01:10:39

• Basics of Constitution - Meaning, Significance, Framing of Constitution and Interpretation of the
Constitution.
• Constitutionalism- Includes Separation of Power, Rule of Law etc.
• Basic Features of the Constitution.
• Schedules of the Constitution- Important schedules are Schedule Ill, V, V I and V II.
• Territory of India (Article 1 to 4) - Part I of Constitution.
• Citizenship- Part II of Constitution and Citizenship Act, 1955.
• Fundamental Rights-Part Ill of the Constitution.
• Directive Principle of State Policy- Part IV of the Constitution.
• Union Executive:
o President
o Prime Minister
o Council of Ministers
o Cabinet Committees
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w o Cabinet Secretariat, PMO and Central Secretariat.
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o Governor
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vi o Council of Ministers
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ID • State Legislature.
• Local Self Government.
• Judiciary.
• Quasi-Judicial Bodies.
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0 • Election:
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z o RPA, 1950 and RPA, 1951.
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o Electoral Reforms.
• Civil Services:
g o UPSC
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o Citizens Charter
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o Challenge of Corruption
a.. o Civil Service reforms
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• Centre-State Relations.
• Inter-State Relations.
• Comparison of Indian Constitution with the Constitution of other Countries.
• Miscellaneous Topics:
o Jammu and Kashmir and Article 370
o Language Provisions
o Emergency Provisions
o Administration of Union Territories
o Cooperative Societies-Part IX B
o Rights and Liability of the State etc.

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 El NTRODUCTION TO CONSTITUTION
ITS MEANING AND SIGNIFICANCE
What is a Constitution: 0 00:00:21
• A simplistic answer would seem like that it is a body of laws. But not all laws are found in the
constitution. Right to Information Act, Consumer Disputes Act, National Human Rights Act, etc. are
laws that are found outside the constitution.
• So how is the law that is framed by the State Legislature and the Parliament different from the laws found
in the Constitution, if the constitution is a body of laws? Such laws outside the constitution are termed as
Statutory Laws, while the ones contained in the constitution are termed as Constitutional Laws.
• The constitutional laws while being part of the constitution are a part of the fundamental laws and
hence it is more difficult to change/amend/remove them as compared to Statutory Laws.
• The Union Parliament is a creation of the constitution and hence cannot legislate laws that violate the
principal laws of the constitution itself. Hence we can deduce that the law mentioned in the
constitution is something like a Supreme Law.
• Thus the legislative powers of the Parliament to make laws cannot violate the Supreme Law that deals with
the fundamentals of the existence of the society and this Supreme Law is termed as the Constitution.
• So constitution can be termed as a fundamental law or a fundamental set of principles according to
which a politically organized society (usually a nation-state) is to be governed.
w • Hence the constitution can also be succinctly described as 'The Law of the Laws'.
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first task that they got involved in was to frame a constitution according to which the nation will be run.
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Constitutional Law vs. Statutory Law:
C • The constitution is a set of fundamental laws. Due to its fundamental character/nature, it enjoys a
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z • This can be seen in the procedure required to change the provisions of these laws. The more the
z importance of the law or provision, the more it is difficult to amend it.
• The constitutional law while being part of the constitution is a part of the fundamental laws and hence
it is more difficult to change/amend/remove them as compared to Statutory Laws.
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Constitutional Law:
• It is usually termed as the entire body of laws.
• Although there is nothing wrong with the definition, it is slightly a wider term because Constitutional
Law goes beyond what is mentioned in the constitution.
• It includes whatever is there in the constitution, the subsequent amendments, the interpretations
of the SC in the various cases before the court, and the conventions that have evolved over time,
even though convention hasn't been codified, it still has the force of law.
• For e.g. The fact that a leader of a majority party is invited for the formation of the government is not
codified in the constitution but it is still followed due to it being a convention. In case of the Governor,
The Sarkaria Commission suggested appointing a person from another state than the state he is being
appointed to. This is a convention that is usually followed now.

Significance of the Constitution: 0 00:22:05

• The first act after the birth of a nation is framing a constitution as it sets up a common set of norms or a
common normative home through which diverse elements of society interact harmoniously with each other.
• What a birth certificate is to a child, the constitution is to the nation.
• It gives a basic structure of our polity or system of governance. w
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• It also details the patterns of relationship between legislature, executive, and judiciary. z
• The constitution also details the relationship between the State (Legislature, Executive, and
Judiciary) and its constituent citizens. E.g. State cannot deny a citizen certain fundamental rights z
• It also details the ideals and aspirations of the people as visible throughout the constitution, C,
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• The Constitution also acts as a mirror to the society and it highlights the faults within our society <(
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and tries to address them, for if these faults were not addressed, they would be tantamount to the z
perpetuation of injustice. For e.g. language, caste discrimination, injustice against women and z
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• The Constitution gives legitimacy to the State and its actions, for e.g. taxation.
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• In a democratic nation, the government cannot be absolutist and hence there are legally enforceable
limitations on the government to prevent absolutism. Hence constitution is the only place where
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Constitutionalism: 0 01:01:40 z
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• It is a complex set of ideas that is based on the principle that the powers of the government are not u
absolute and are limited by a body of laws or a supreme law called the constitution. Thus, the �
government has to subscribe to the body of laws for its legitimacy depends on it.
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• Components: i=
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o Rule of Law: Although many people have contributed to the principle of Rule of Law, principally 0
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Dicey's contribution has been more seminal. Rule of Law has many components, but basically, it a::
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 ► Supremacy of law: The country will be ruled not according to the whims and fancies of the ruler
but in terms of the principles of law and the ruler is also subjected to the law. The Supreme
Court has also said 'You may ever be so high, but the law is above you, the law is the king of
kings'. Even the Upanishads express similar sentiments namely mentioning the Dharma of the
king. (Lex is Rex). The natural corollary of this postulate will be that the rule of the country has to
be in accordance with law and hence cannot be arbitrary. Thus the arbitrary exercise of power is
prohibited too.
► Equality before Law: Dicey said that all sections of society are equally subject to law of the land
as administered through ordinary courts. Though in modern practice, steps related to affirmative
action or positive discrimination violate the strict application of this principle but are in tune with
modern times. (substantive equality vs procedural equality).
o Equality of Law administered through ordinary courts: But today we have many forums that have
adjudicatory functions other than the ordinary courts as said by Dicey. An example is quasi-judicial
forums like CAT, ITAT, tribunals, etc.
► There are certain exceptions to legal equality in the Indian Constitution-while president and
governor are in office, no criminal proceedings can be started against them as per Article 361
w and no civil dispute can be undertaken unless two months' notice. (Violation of formal equality).
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z ► A.G Noorani termed this criminal exemption to be a mindless borrowing from the West based
on the British practice, where the courts cannot prosecute the ruler.
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both the president and the courts are the creation of the constitution, and hence similar
C provisions are vague.
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z prosecution can be appointed as governors. Noorani also says that hypothetically if the
z provision is not there, and no consequent criminal immunity was present and such a provision
was enabled through a constitutional amendment, such a move would not get the approval of
the public or the courts today.
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z0 ► A similar exception is the concept of diplomatic immunity, which violates formal equality. In the
provision of Section 499 of IPC, contempt of courts is present, but any legislator while
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 II SEPARATION OF POWERS

• Constitutionalism stands for a complex of ideas that is based on the principle that the power of the
government should be limited and there should not be any absolutist government. Hence
constitutionalism abhors absolutism.
• To make the government limited in its powers, various tools can be used, one of the tools being Dicey's
concept of Rule of Law, and one being the separation of powers. It refers that whatever institutions
constitute the state; the power of the government shouldn't be concentrated in one institution but
should be divided between them. These powers of the government have been traditionally classified
as legislative, executive, and judicial/adjudicatory powers.
• In medieval times, kings and rulers used to have these powers vested in them which led to absolutism.
While many have been associated with postulating this concept, Montesquieu's name has been
indelibly associated with the concept.

Functions of State or Functional Separation:

• LawMaking
• Law Execution
• Law Adjudication
Governance of the country will be carried out through consensus between the three and hence a natural
corollary from this functional separation, arises the concept of checks and balances.

Benefits of Separation of Powers: 0 00:09:45

• It preserves democracy and the rights of the people.
• It promotes healthy division of labor, specialization, and the efficiency of functions.
• It facilitates healthy debate and constructive friction between the three organs which leads to better
decisions, and hence the result of deliberation leads to better outcomes.

Exceptions to Separation of Powers: 0 00:15:20

Even in the US, which is considered the traditional home of the rigid separation of powers, there is dilution. It
is now known that perfect separation of powers is not possible in a modern state and is not followed
anywhere in the world.

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• Westminster System:
0:: o In a parliamentary system of government the separation between the legislature and executive is
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never complete. In the executive, there is a large body of civil servants termed as permanent
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c.. bureaucracy. Above this bureaucracy at the apex in the executive is the Council of Ministers
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o Thus as aMember of Parliament, he is part of both the legislature and executive as a minister in the
Council ofMinisters.
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 o This arrangement is derived from the British Westminster form of government. While in the US, a
person can either be part of the presidential cabinet or be a member of Congress. The biggest
qualification to become a minister in India is a disqualification in the US. Thus there is more rigid
separation in the USA compared to India.
• Delegated Legislation:
o In most parts of the world, the law is passed in a broad skeletal form and the detailed law is framed
by the bureaucracy that belongs to the executive.
o The responsibility to frame the rules, regulations, and bye-laws which become part of the detailed
law are delegated to the executive, and thus such legislation is termed delegated legislation.
o This is a violation of the separation of powers wherein the task of law-making is delegated to the
executive which acts as a subordinate legislature.
• Administrative Adjudication:
o The responsibility of adjudication in a government is traditionally a function of the judiciary.
o Administrative adjudication refers to when the executive carries out such functions.
o An example is an adjudication being carried out by the district administration belonging to the
executive-revenue courts, other being the tribunals like CAT, ITAT who also undertake adjudication.
The technical matters related to adjudication are better handled this way.
• Judge made Laws:
o On occasions where the law is silent or ambiguous, the court clarifies it and it serves the
interpretation. This is the judge performing his law-making function.
o Similarly, when laws are absent or there is a legal vacuum pertaining to issues, the court gives
guidelines that function as laws, for e.g. Vishakha guidelines.
• Ordinance:
o When there is an emergency in making a law, and if the parliament is not in session, the executive
passes laws termed as ordinances, which function as regular laws passed by the parliament.
• Regulatory Bodies:
o The emergence of regulatory bodies around the world has happened due to the complex nature of
the economy today. These bodies have all three functions namely law making, law implementation,
and adjudication vested in them.
o They make rules, regulate the sector, and penalize players who do not follow regulations. Examples
of Regulatory Bodies are SEBI, IRDAI, etc. (/)
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identify local needs of the community, decide the money where to be spent and implement ll..
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thus a legislator is exercising the functions of the executive while administering MP LAD.
• Article 372:
o Under Article 372, the laws that were present before the enactment of the constitution can be w
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 aligned with the present constitution and such power was vested in the President for the first three
years.
o The President being part of the executive performed legislative functions while exercising such
powers.
• Vacancy in Office:
o The Chief Justice of India becomes acting president if there is a vacancy in the office of President
and Vice President, but no such scope in the US, even in the UK till recently, the judiciary was part of
the House of Lords.

Rigidity of Separation of Powers: 0 01:04:53

Following strict separation of powers is not maintainable because:
• Specialization in Administration:
o Due to specialization in governance, the traditional organs of government to deal with governance
are not capable enough of handling these functions.
• Speed and Efficiency:
o Lack of strict separation of powers brings speed and efficiency to the government.
o For example, if all the cases pending before the tribunals are handled by the judiciary, the judiciary
will be overwhelmed and cannot perform its primary functions.
• Public Interest:
o Power is not a property and is a means to end. The legislative, executive, and adjudicatory powers
are not the property of the institutions that principally exercise them.
o Power is a means to an end to performing public interest, and if on occasion, if that end can be
better served by vesting power in an institution that is not supposed to principally exercise it, so
be it. The ultimate aim is to serve the people and carry out their welfare.
o Hence such a departure is required and rigid separation of powers is not maintainable.

Checks and Balances: 0 01:07:36

• The system of separation of power's natural corollary is the system of checks and balances. Indian
system does not follow the strict and rigid separation of powers as in the USA, but a system of
checks and balances, even though the term is borrowed from the USA itself.
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• In the system of checks and balances, the functions of the government are divided between the
0:: branches of the government and each acts as a check on the other from abusing the powers.
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• Check on Judiciary:
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0 keep a check on the judiciary, because while on paper the executive needs to appoint the judges to
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0 keep a check on the judiciary but the appointment in the Indian context has been completely
monopolized by the judiciary through its system of the collegium, even though the constitution
mentions that it is the duty of the executive in the appointment of the members of the judiciary.
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 o Whereas in the USA the executive appoints the Judges of the Supreme Court. Thus one way to
ensure that men of integrity and competent judges are appointed is the executive makes the
appointments.
o In India, in order to protect the tenure of the judges, the power to remove the judges is with the
Parliament, with a special majority needed to remove them.
o The process is so difficult that till date, not a single judge of both the high court and the Supreme
Court has been removed through the impeachment process.
o Thus the check on Judiciary by the executive is through the appointment and by the legislature is
through the impeachment process.
• Check on executive and legislature by judiciary:
o If the legislature makes a law, which is unconstitutional, the judiciary can strike it down. If the
executive takes an action that is illegal and unconstitutional, the judiciary can take it down, thus the
judiciary serves as a check on both.
o Hence, the power of the judiciary to determine the legality, constitutionality, etc. is termed Judicial
Review.
• Check on executive by legislature:
o The executive often wants laws to be in place but the laws cannot be passed until enacted by the
legislature, thus the legislature serves as a check on the executive.
o The legislature also questions the executive through the question hour, resolutions and in extreme
cases, even a no-confidence motion against the executive can be passed by the legislature thus
removing the executive out of power.
• Check on judiciary by the executive:
o The executive also has the power to revise the nature of punishment that has been given by the
judiciary. If the three-tier judicial system has given a sentence, then there is a power with the
executive to revise the decisions of the judiciary.
o It has been given to revise any decision prone to human error, undue harsh punishments, etc.
o Thus president's clemency power ensures a system of checks and balance here.
• Thus this system of checks and balances ensures that each branch of the government checks the other
and whenever there is something done by the government, there is as much consensus as possible.

Separation of Powers in India vs. USA vs. UK: (/)

• In India, if there is a vacancy in the office of the president and the vice president is also not available,
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• Such a provision is not available in the USA, thus the USA has a more rigid separation of power than
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India.
• In comparison to the USA, the UK has a loose separation of powers. India follows a middle path
between the two. w
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 • An example displaying the UK's Separation of Powers is the example where the Highest Court of Land
was a part of the Parliament before, namely the House of Lords, though it has been rectified now.

Need for more checks on the executive:

• Among the three institutions, due to historical interplay of factors, more power gets vested into the
executive.
• If the independence of the judiciary is compromised and if the opposition is fragmented, then we have
a situation where executive rule goes unchecked.
• Since the executive has come to exercise greater power in the government, there is a need for a greater
check on the government through a proactive legislature through discussions and independent
judiciary, so that the executive doesn't trample on the rights of the citizens.
• But in contemporary times both the legislature and judiciary have been less effective in exercising their
checks.
• There has been less discussion on bills on the parliament. Even though the separation of powers is
existent on paper, it has been eroded in substantive sense and may be destroyed.
• There is also a unique separation of powers internally within the executive too; institutions like eAG,
Eel, UPSe, eve, while being independent are still formally considered a part of the executive. Thus
there is not an unbridled exercise of power by the executive and such independent institutions restrict
the political executive but are formally a part of the executive.

Features of eonstitutionalism: 0 01:34:41

• Rule of Law
• Separation of Powers
• Grant of basic civil liberties
• The temporariness of the government through periodic free and fair elections
• lndependentJudiciary
• A free media

(/)
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 CONSTITUTIONALISM AND FRAMING
OF THE CONSTITUTION
Features of Constitutionalism
• Rule of law
• Separation of Power
• Rights of People
• Democracy
• Free media
• lndependentJudiciary

Negative and Positive Constitutionalism 0 00:00:37

• Negative Constitutionalism (preventing tyranny):
o The idea that the state can be a danger or a source of oppression to the citizens had gained ground
in the late medieval and early modern age.
o Consequently, the idea of negative constitutionalism developed largely among Western thinkers in
an effort to prevent tyranny by limiting the powers of the government in the wake of oppression by
the ruling class.
• Positive Constitutionalism:
o An obsession /zeal for limiting the powers of the government may lead to a situation where the state
is hindered from performing its basic or fundamental functions e.g. public order, resulting in
anarchy and thus it needs to be empowered.
z o Positive constitutionalism says that government must have certain powers to perform its functions
0
j:: properly, thus trying to balance the government's powers to prevent tyranny (due to excessive
....
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power and its abuse) and anarchy. (due to inadequate power)

z Factors Affecting Constitutionalism 0 00: 1 2:03

0
u • These principles have been assimilated in Indian Constitution to varying degrees.
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• It is important to know that the mere codification of these principles in the constitution is not a
0 sufficient condition for the presence of constitutionalism in the country.
C, • These principles have to be implemented and be observable to the citizens in daily life to conclude the
z
� presence of constitutionalism. In fact in the case of United Kingdom, the presence of an unwritten
u. constitution doesn't prevent the country to not have constitutionalism.
C • Thus we can conclude that the mere presence or absence of the codification of these principles does
z
< not guarantee the presence or absence of constitutionalism in a society.
� • The realization of the principles of constitution depends on the following factors:
(/)
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<z o Political Culture:
0 ► The institutions most responsible for nurturing and strengthening the tradition of democracy are
j:: Political Parties. But in India, political parties are dens of undemocratic culture with many parties
....
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even functioning as family fiefdoms, presence of high command culture, less scope for dissent,
j::
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z nomination of criminals ,vindictive politics after coming to power etc.
0
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 ► Thus the political culture is poisoned and the key institution which is supposed to preserve
constitutionalism, actually mars it.
o Administrative culture:
► The administrative machinery can ensure that constitutionalism is preserved in the country if
they view themselves as the servants of the people/citizens. Under British colonial rule, the role
of civil services was to preserve the British Empire and therefore oppression was carried out by
the civil servants.
► This resulted in a colonial mindset where the natives where seen as savages, who had to be
reformed by the British, also termed as White Man's burden.
► Post-Independence, the same administrative machinery had to transform its mentality from the
mindset of being masters to being servants of the people. But this elitist/colonial mindset still
persists among the administrative machinery, albeit to a lesser degree.
► Such a bureaucracy cannot preserve constitutionalism in India due to persistent corruption,
nepotism, non-transparency etc.
o Social value system:
► In India there is a high degree of tolerance regarding acceptance of unethical issues.
► Thus not only the political and administrative culture in India hampers constitutionalism, but also
the prevalent social value system. A recent example of this being the lack of outrage in the public
for police encounters killings.
z
0
Interpreting the Constitution: 0 00:29:00 j::
:::)
Our constitution has to be applied correctly and hence even though it is a voluminous document; it has to be f­
interpreted in a right manner. The tools that have aided in the interpretation of the constitution are: j::
(/)

• Article 366, 367 and 12:

z
0
u
o There are tools in the constitution itself to interpret the constitution. Article 366 of the constitution w
J:
contains definitions for many terms that are used in the constitution. An example being the f­
LL
provisions where scheduled castes, tribes, Anglo-Indians etc. are defined. 0
o Similarly, the Article 12 defines State as used under many provisions in the constitution. In 1897, (!)
z
Britishers enacted a law namely the General Clauses Act which consisted of a list of legal terms �
defined under the Act. LL
o This act has been mentioned under Article 367 to aid in the interpretation of the constitution C
•
z
English words: <(
o The Supreme Court has given us a number of tools for the interpretation of the constitution. �
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Actually, the court has ruled that the meaning of the English words used in the constitution would :::i
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refer to commonly used meanings unless the context demands otherwise z
0
• Preamble: j::
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o The provisions of the constitution are an amplification of the philosophy of the constitution, which f­
j::
has been succinctly summarized in the Preamble. (/)
z
0
u
 o In cases regarding multiple interpretation of the constitutional provisions, that particular
interpretation is deemed correct that fits best the philosophy contained in the Preamble.
• Progressive Interpretation:
o Since the norms in a society do not remain static over time and are prone to change, the courts have
deemed it wise to interpret provisions as the norms of the society.
o The constitution must be so interpreted that it allows it to adapt and adjust to the emergent socio­
economic, political conditions. For example, Article 2 1 (Right to Life) provides that the State cannot
take away a person's life except for procedure prescribed by law. The initial interpretation of the
term 'life' denoted raw /physical existence and did not mean the qualitative aspects associated with
life. Hence a life filled with hunger, poverty, illiteracy, poor sanitation etc. didn't come under the
protection provided under Article 2 1.
o But as the socio-economic conditions improved, a mere animal existence as a definition for life
wasn't satisfactory and hence the apex court adopted an expansive definition for 'life' as
interpreted in Article 2 1. This has led to many rights having found shelter under Article 2 1 which
had led to their growth and nourishment.
• Purposive Interpretation:
o This method of interpretation relies on the purpose or intent with which the provision was included
in the constitution. This intent is usually readily available in the compilations of the voluminous
Constituent Assembly debates.
z o The apex court has ruled that the interpretation of a provision should not be done purely in isolation,
0
j:: but interpretation should be in light of the entire constitution which is an ecosystem itself. The apex
....
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court ruled that all parts of Constitution must be read together.
• Harmonious Construction:
z o If there is a situation where one provision is actually in conflict with the other, the apex court has
0
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w ruled that such an interpretation should be made so as to reconcile the articles and give them
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maximum effect as possible. This is termed as harmonious construction.
0 • Liberal Interpretation:
C, o The interpretation of provisions of articles particularly those concerning liberty and security of
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� citizens in favor of them is termed liberal interpretation. Under such interpretation rights like
u.
privacy, media, information etc. have been grouped under the Right to Freedom of Speech and
C Expression under Article 19( 1)(a).
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< • Conventions:
� o They are a tool used by the judiciary to interpret the constitution. So some conventions if not all,
(/)
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<z followed under the parliamentary system in England is used by the courts as a tool to interpret the
0 constitution.
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Framing the Constitution: 0 01:07:30
j::
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z • How must we be governed?
0 • Who shall decide or settle this?
u
• Constitutional Autochthony:
o It means a desire among the people to have a homegrown constitution rooted in the native culture,
political, socio-economic environment of the country.
o The British decided upon the framework through which India was to be governed as evidenced
through Indian Councils Act (186 1, 1892, 1909), Gol Act 1919, 1935. It was not until 1929, when
the Purna Swaraj resolution was passed in the Lahore Session, the view changed regarding who
would frame the constitution for Indians. The view until then was a constitution framed by the
British in consultation with Indians.
o Post 1929, INC started demanding constitutional autochthony and hence an indigenously elected
constituent assembly. This demand was accepted in Cabinet Mission Plan of 1946.
• Out of the 389 members of the constituent assembly, 296 were from British provinces who were indirectly
elected and 93 from the princely states through nomination who had accepted British paramountcy.
• The representation was done so that each assembly member represented around one million people.
After partition this assembly of 389 members got fractured into 299 members with 229 from British
provinces and 70 from the princely states. The assembly met for the first time on December 9, 1946
with leaders like Nehru, Patel, Rajendra Prasad, Maulana Azad dominating the proceedings.
• The provisional President was Dr. Sachchidananda Sinha owing to his seniority until Dr. Rajendra
Prasad was formally elected. The vice presidency was bagged by H.C. Mukerjee and V.T.
Krishnamachari, while Sir B. N. Rau was appointed advisor to Constituent Assembly. S. N. Mukerjee
was the chief draftsman of the constitution who put into words all the contradictions and reconciled z
0
them into a text. j::
• Five stages: 0 01:29:09
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f­
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o 1 Stage - Committee Stage: (/)

► Various committees were formed under the chairmanship of prominent individuals to form views
z
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and prepare reports regarding the constitution that was to be framed. w
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o 2" Stage:
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► The various reports prepared by the committee were compiled by Sir BN Rau into the first draft of 0
the constitution. (!)
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o 3 Stage: �
► To prepare a detailed draft of the constitution a drafting committee, chaired by Dr. BR Ambedkar. LL
The members included N Gopalaswamy Ayyangar, AK Aiyar, KM Munshi, Syed Mohammed C
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Saadullah, Madhav Rao joined later replacing BL Mitter due to his ill health, T.T. Krishnamachari <(
replaced DP Khaitan due to his death. �
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► The draft was published on Feb, 1948 to invite opinions from members of civil society and z
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individuals. This was the stage when the draft was put to rigorous debate, multiple j::
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2473 amendments. u
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o 5 5tage:
► This stage concerns the enactment of constitution. The date mentioned in the Preamble for the
th th
enactment of constitution is 26 November, 1949. But the constitution came into force on 26
January, 1950.
th
► The date of 26 Jan carried sentimental value due to its association with Purna swaraj
resolution.
► Hence those provisions of constitution which needed to be enacted immediately were enacted
th
on 26 November as mentioned in the Preamble, while the bulk of the constitution was enacted
on 26 h January, 1950 as mentioned in Article 394 concerning the commencement of the
t

constitution.

Note: The constitution was calligraphed beautifully by Prem Bihari Narain Raizada, while the artists who
decorated the constitution with beautiful motifs were from Santiniketan headed by Nandlal Bose.

Functions of the Constituent Assembly: 0 01:45:51

• Framing the Constitution.
• The Constituent Assembly doubled up as a legislature functioning as a provisional parliament to
frame laws. When the same Constituent Assembly functioned as a legislature, it was presided by GV
Mavlankar and not Dr. Rajendra Prasad. The CA used to sit as a legislature in the morning session
z presided over by GV Mavlankar and came back as a Constituent Assembly to frame the constitution in
0
j:: the afternoon presided over by Rajendra Prasad.
....
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• It adopted the National Anthem, flag and national song.
• The constituent assembly also elected Rajendra Prasad as President of India from 1950-52 until the
z general elections were held for the union and states.
0
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After 26 h Nov, 1946 when the constitution was enacted and the constituent assembly's task ended, it
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still continued as a provisional parliament till general elections in 1952 .
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C, Note: The constitutional assembly was not a sovereign body from the date of its formation viz. Dec 9, 1946
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 Ir.II CRITI Q U E O F CO N STITU E NT ASS E M B LY
11:.1 AN D TH E CO N STITUTI O N
The Constituent Assembly was criticized on for the following:
• It was unrepresentative:
o It was not elected by the people and hence didn't represent their views; it was indirectly elected
while there were nominations from the princely states.
o This criticism can be debunked as follows:
► The congress party and Nehru had the opinion that the constituent assembly while being
created, wanted it to be elected by the people of India. But in those days, the preparation for
elections would take a long time and eventually the consequent transfer of power from British
to Indian would be delayed. Hence they decided to undertake indirect elections for the same.
► Even though the constitution was framed by the Constituent Assembly, it was open for
th
introspection to the public after the 4 Stage of the framing process from all stakeholders to
make the framing process as broad based as possible.
► The Constituent Assembly was composed of many prominent members who would have been
elected nevertheless even if they were directly elected. Moreover, in the 1952 elections, the
legislature had a similar makeup and hence acted as a referendum, since congress which was
the major party in Constituent Assembly, also won the later election.
► Each section's voice and opinion was represented in the constitution, and hence even if there
was no physical representation in Constituent Assembly, their opinions were discussed and
z represented.
0
i== ► The constitution represented the will of many and not the needs of the few.
::,
1- • Congress dominated the CA:
5;z o Congress consisted of communists, socialists, secularists, Hindu nationalists, Gandhians,
0 capitalists etc. and hence did not have a coherent ideology and hence was a broad organization.
u
w Thus accusation of congress ideology in the Constituent Assembly seems unwarranted.
::r:
l- • Congress was Hindu Dominated:
o
z o Since the majority of the population was Hindu, it was natural to expect them in the majority, but
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� this majoritarianism is not reflected in the constitution.
Ill o Even the Hindu nationalists of that era, criticized the constitution.
�
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(/) The constitution was unindian and borrowed constitution:
<
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o Some alleged that it was a slavish imitation of the West, carbon copy of Gol Act, 1935.
1-
z
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o The britishers gave governance frameworks in 186 1, 1892, 1909, 1919 and finally 1935. Large
::, parts of our constitution are borrowed from the 1935 act.
1-
5;z o But all these articles were debated and discussed in the Constituent assembly before being
adopted, thus only the structure was adopted, while the soul was debated in the assembly.
0
u o This can be debunked:
LL
0 ► Our constitution is based on the idea of secular democracy. Since we were framing our
w
::, constitution around the idea of secular democracy, it is unimaginable that the basic precepts of
C­
i== the constitution would be different than what are found in similar constitutions around the
ii: world.
u
 ► Since our constitution was also prepared late after many similar constitutions were already
framed, it would be foolish to not look into other constitutions and not have the same
fundamentals, even though the details may be varied.
► Additionally, ideas like these are not a copyright of any country,
► Moreover, there was intelligent adaptation and not blind copying, example being Bill of Rights
in the USA vs. Part Ill in our constitution.
► Granville Austin said that calling the constitution unindian was absurd, because what
constitutes lndianness is not defined. While the constitution in its structure may seem to be a
culmination of British legislations, but the soul is different.
• Too complicated and verbose language:
o The Constituent Assembly was teeming with legal experts and hence reflects similar language.
o But in the end the constitution is a legal document, hence some legal jargon can be expected. Ivor
Jennings termed the constitution as lawyer's paradise.
• It is a highly voluminous document:
o It is a bulky constitution as compared to other constitutions.
o It can be justified as:
► When the constitution building exercise tries to bring under one fold the entire accumulated
experience of the working of so many constitutions from whom we have intelligently
adapted, it is natural that it would turn up to be bulky. z
0
► Our constitution also deals with details of the administration apart from the fundamentals, for j::
:::,
e.g. accounts, audit, public service, election, languages etc. 1-
j::
► India has a single constitution for the whole country; the US constitution is small because the z
(/)

states have their own constitution too. 0

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► The diversity of the country is large and hence incorporating and handling that diversity in the w
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constitution will also contribute to the bulkiness, e.g. special provisions for states, minorities,
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backward classes, etc. z
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► Additionally, Centre-states relations are dealt in detail. �
► In addition all the articles are dealt in detail so that minimal ambiguity regarding the provision III
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is left, in order to avoid litigation too w
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► Moreover, the 1935 Gal Act was bulky, hence the consequent incorporation from the act also <
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1-
contributed to the bulkiness. z
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• Ungandhian constitution: :::,
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o There is allegation that, not much reflection of his ideology is seen in the constitution. j::
z
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o When it came to national struggle, the congress strategy was totally Gandhian, but when it came to
0
post independence economy and polity, the congress was ungandhian.eg Mahatma Gandhi's u
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cottage industry vs. Nehru's industrialization. 0
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o His concept of oceanic circles of power meant that power should radiate from village to the centre :::,
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and not the reverse, but these were not added in constitution and added in DPSP in article 40 and j::
hence non-justiciable. ii:
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 o Ambedkar considered villages as dens of darkness, reeking of casteism, patriarchy, feudalism etc.
and hence any democratic representation at the local level will represent only local elites.
o But they were added later in 73rd and 74th Constitution Amendment Acts.
• Lacks theoretical consistency:
o Since India has many contradictions, it is natural for the constitution to accommodate and reflect
these contradictions.
o It has provisions for modernity (liberty, equality, fraternity) and tradition (UCC, divorce, adoption
etc.)
o India is a blend of modernity and tradition and our constitution is just a mirror to that facet of society.
o It is the incoherence in society that gets reflected in the constitution.
• Hanna Lerner said that while dealing with explosive issues, the constituent assembly employed three
methods-deferral, ambiguity, non-justiciability.
o Deferral: case of national language status of Hindi, which is left for future generations to decide
o Ambiguity: states role in interference in the religion.
o Non-justiciability: cow slaughter, prohibition of liquor, Uniform Civil Code, etc.

Ambedkar's warnings:
• Ambedkar said that mass protests had a salience when we were being exploited by British rule, but did
z not hold such salience after independence.
0
i== • He exhorted to use constitutional methods to redress grievances and prevent grammar of anarchy.
::,
1- • He suggested that there should be no hero worship in politics and never to elevate leaders to the
5;z status of divine.
0 • Ambedkar upon the inauguration of constitution said that "We are entering an era of contradictions,
u
w in the political sphere we will be recognizing one man one vote and one value while sadly in socio­
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l- economic sphere, there is inequality. Hence this political democracy should be used to alleviate
o
z socioeconomic inequalities."
< • Constitutionalism and constitutional morality should be nurtured in generations to come.
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 m BAS I C FEATU RES O F TH E CO N STITUTI O N

• Bulky Constitution:
o The constitution earlier had 395 articles which have increased to 450. In the beginning we had 8
schedules which are now 12; initially parts were 22, now are 25, new parts dealing with IV-A
concerning Fundamental Duties, were added through 42 nd Amendment Act.
th th
o Part IX-A-Urban Local Bodies 7 4 Amendment Act and (IX-B added by 97 amendment dealing
with cooperatives), XIV-A dealing with Administrative Tribunals through 42 nd Amendment Act,
removed parts include part V II and part IX through 7th Amendment Act, 1956 and part IX was re­
added again through 73rd Amendment Act.
• Borrowed Constitution:
• Borrowed from various sources, maximum from the UK.
o UK
► Westminster form of government
► Parliamentary privilege
► Single citizenship
► Writs
► Rule of Law
► First past the post system
0 us
► FR inspired by Bill of rights and not completely borrowed
► Judicial Review
► Vice President
► Removal of SC and HC judges
► Impeachment of President
► lndependent judiciary
► Concept of due process of law
o Japan
z
0 ► Procedure established by Law
i==
::, o Canada
► Federal setup tilted towards Centre
z ► Residuary powers with Centre
0
u ► Appointment of governor by union
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V) ► DPSP
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0:: ► method of election of president
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► Nomination of members to Rajya Sabha eminent individuals
LL o South Africa
u ► Amendment procedure from the previous South African constitution
vi
<( ► Procedure for RS election from previous constitution
III
 o USSR
► Fundamental Duties
► Notion of political, social and economic justice
o France
► Liberty, equality, fraternity
► Republic
o Australia
► Concurrent list
► Joint sitting of two houses
► Freedom of trade and commerce throughout the country
o Germany
► Emergency provisions from Weimar Germany
• Written Constitution:
o We have a written constitution like the USA.
o The UK does not have a written constitution, but the unwritten constitution part of UK is
misinterpreted, as they depend more on conventions but the written part is scattered across
various sources and legal documents, it has not been consolidated in a one grand volume.
o Thus the unwritten part refers to non-consolidation rather the absence of any written norms. While
the presence of conventions provides flexibility in interpreting laws, but this can become an issue if
the interpretations start becoming loggerheads with each other.
o Unwritten constitutions do not have a single point of time where people came together to frame the
constitution and it has evolved with time.
o The difference between written and unwritten is not in kind but rather of degree. Since no
constitution can be completely exhaustive, there is scope for conventions in written constitutions
too. Thus unwritten constitutions acquire written nature over time, while written constitutions
acquire conventions over time. Thus this is difference in degree.
z
• Role of Conventions: 0
o US constitution only has 7 articles; conventions are not codified but carry the force of the law.
t=
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o Even though the convention is not codified, it carries the legitimacy backed by public opinion. t=
o Role of conventions in working of the constitution: z
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► It allows to constitution to adapt without going through the process of amendment; u
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► Courts use conventions to interpret and understand the constitution. I
f­
► Conventions provide flesh and blood to the dry bones of law. u..
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• Less rigid, more flexible: (/)
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o Our constitution is more flexible because many parts of the constitution can be altered with a simple 0::
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majority, examples being state reorganizations, abolition or creation of legislative councils in a
state, Schedule I, II, V, VI, Article 168 concerning LC, Article 100 concerning quorum, Article 124 u..
concerning number of judges, etc. u
vi
 o Provisions related to elections in the constitution need to be amended and cannot be modified by
simple majority as believed; the changes can be brought in RPA and not in the constitution though,
through a simple majority.
o Some articles of the constitution are incomplete and need a law to actualize it, examples being
citizenship act, Article 17 that outlaws untouchability. This is another evidence of flexibility, another
example being the total 105 amendments made to the constitution till date in a span of over 70
years. (The US constitution has had only 27 amendments till date in its history of over 250 years)
--------
Previous Year's Questions

Q. Did the Government of India Act. 1�'35 la!J down a federal Constitution ? Discuss. (20")

Previous Year's Questions

Q. 5. Discuss each adjective attached to the word 'Republic' in the 'Preamble'. Are the!J de+endable
in the present circumstances ? (2016)

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III
 AM EN D M ENT, SALI ENT FEATU RES AN D SCH E D U LES
OF TH E CO NSTITUTI O N (FI RST TO E I G HTH)

Amendment of Constitution 0 00:00:00

• There have been 105 amendments over 70 years in India and just 27 amendments over 200 years in
USA. Parliament amends constitution as the procedure listed in Article 368.
• In US, 2/3rd of the states can author a proposal to the US Congress to propose an amendment. Such
powers are not available to Indian states.
• Every amendment to the US constitution has to be ratified by ¾ of all the states

Basics of the amending process 0 00:03 : 2 5

• Power only with Union.
I­ • States have limited role.
I
C,
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• MP can introduce amendments.
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o The bills introduced by ministers are through the government and any bill from the private members
t;;
is termed private members bill. Private members include even the members of the ruling party who
c:: are not part of ruling executive.
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z • Some bills need sanction from the President before introduction e.g. state reorganization, money bill.
0 But no permission is required for a constitutional amendment bill under Article 368.
i==
::, • Bills for Constitution Amendment can be introduced in both houses.
I­
i== o There is no provision of joint sitting for Constitution Amendment and hence the Constitution
V)
z Amendment bill needs to be passed separately in each house.
0
u • The bill has to firstly passed by a majority of the total membership of the house, secondly 2/3 of
w
I members present and voting. Both these norms must be followed simultaneously irrespective of any
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LL vacancy.
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w By whom:
_,I Initiation: How to pass:
::, Either minister or p rivate
C O n ly by introduction in mem ber, no prior ➔ Each house by spec i a l
w e ither house perm ission of President majority, no j o i n t sitting
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c:: -----➔ M ust give his assent, Constitutional
::, To President for assent can not withhold or Amend ment Act
return

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• Rigidity of constitution is reflected if there is an amendment needed in a provision dealing with Centre­
z
w state relations; it has to be additionally approved by a resolution with a simple majority of the states.
This can be contrasted with the three-fourth requirement in US.
• The provisions that require approval by states include-election of the president, extent of the
�
z
w executive powers between union and states, provisions relating to SC/HC, distribution of legislative
� powers between union and states, any alteration in schedule VII, altering representation of states in
C
z
w parliament, and any provision in Article 279 A added in 20 16 concerning GST, and article 368 itself.
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< • There is no scope of presidential revision (24th Constitutional Amendment Act, 1971)
Basic Features of Constitution (continued from previous lecture) 0 00:27:38
• Bulky constitution
• Borrowed Constitution
• Less rigid and more flexible
• Balance in distribution of powers among three organs of executive, legislature and judiciary:
o UK is the home of parliamentary sovereignty where until 2009, the apex court was still part of the
House of the Lords. In theory, the apex court cannot strike down a law passed in the British
parliament.
o In addition to these factors, the fact that UK doesn't have a written constitution thus depriving the
apex court to have reference point to evaluate the suitability of laws is an additional factor. f­
I
o But in reality, any bill passed needs to be favored by public opinion, since in a democracy with �
w
popularly elected governments, unpopular legislations are rarely passed for fear of consequences. g
o In US, bills passed by congress can be struck down by SC for being ultra vires. Therefore US is the
home of judicial supremacy, while India can be termed as 'Via media' i.e. following a middle path. a::
iI
• Constitution provides for Political Justice: z
o It provides for equality before law, universal adult franchise, and right to contest. Our constitution 0
j::
also provides for substantive equality in terms of social justice and economic justice. ::,
f-
• Federal setup with a unitary bias.
• Westminster System followed with an elected Head of State. z
0
• Justiciable and non-justiciable rights: u
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o Part Ill contains justiciable rights and part IV concerning non justiciable rights are provided by our I
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Schedules to the constitution: 0 00:51:44 LL

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o It contains salaries and emoluments of important constitutional dignitaries. For example it mentions
the salary of the President as Rs. 10000/mensem where mensem refers to a month in Latin. But the
power to decide salaries, emoluments etc. of all these dignitaries mentioned is with the Parliament
which legislates laws regarding these. Till the parliament passes law regarding the emoluments,
the emoluments mentioned in Schedule II will be applicable. Thus this schedule has somewhat
become redundant due to the various laws that have been passed in this regard.
► Article 59(3)
► The President shall be entitled without payment of rent to the use of his official residences and
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of transparency owing to changed demands and relationship of the citizen with the government
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w caste, religion etc. should be avoided as it affects the integrity of the nation.
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that I will uphold the sovereignty and integrity of India."
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1- ► Even in the oath pertaining to oath of MPs where it directs the MPs to discharge their duty
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w properly, our parliamentarians have fallen short in upholding accountability of the government.
► The oath of the Chief Justice, CAG are the same:
• Form of oath or affirmation to be made by the Judges of the Supreme
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w • Court and the Comptroller and Auditor-General of India:-
� • " I, A. B., having been appointed Chief Justice (or a Judge) of the Supreme
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w • Court of India (or Comptroller and Auditor-General of India) do
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< • swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the
 • Constitution of India as by law established, that I will uphold the sovereignty and integrity of
India, that I will duly and faithfully and to the best of my ability, knowledge and judgment
perform the duties of my office without fear or favour, affection or ill-will and that I will uphold
the Constitution and the laws."
► The oath of minister for a state is separate from the minister of union. There is separate oaths for
the same for union and state positions
► The oaths of the President, Vice President, Governor is not present in Schedule Ill but mentioned
in specific articles of the constitution (Article 60 for president, Article 69 for Vice President and
Article 159 for governor)
f­
• Article 60: Oath or affirmation by the President I
• Every President and every person acting as President or discharging the functions of the �
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President shall, before entering upon his office, make and subscribe in the presence of the g
Chief Justice of India or, in his absence, the senior most Judge of the Supreme Court available,
an oath or affirmation in the following form, that is to say "swear in the name of God I, A B, do a::
iI
that I solemnly affirm will faithfully execute the office of President (or discharge the functions z
of the President) of India and will do the best of my ability preserve, protect and defend the 0
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Constitution and the law and that I will devote myself to the service and wellbeing of the ::,
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people of India"
• The oath of the president puts on him the duty to preserve, protect and defend the constitution z
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and the law and I will devote myself to the service and well-being of people of India. u
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► The position of Vice President as seen in table (warrant) of precedence is second to the I
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to be carried out as compared to the President. This is due to the fact that functions of a VP is l/l
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• Article 69: Oath or affirmation by the Vice President w
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• Every Vice President shall, before entering upon his office, make and subscribe before the u
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President, or some person appointed in that behalf by him, an oath or affirmation in the C
following form, that is to say "swear in the name of God I, A B, do that solemnly affirm will bear
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• Schedule IV:
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o It deals with the allocation of Rajya Sabha seats in States and Union territories. f­
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• Schedule V: �
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o The fifth schedule is attached to the Article 244(1) of the constitution. It deals with the provisions z
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pertaining to the administration and control of Scheduled Areas and Scheduled Tribes. �
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 • Schedule VI:
o Attached with Article 244 (2) and 275 ( 1). It contains provisions pertaining to the administration of
tribal areas in Assam, Meghalaya, Tripura and Mizoram.
o It deals with the sensitive areas of the North East.
• Schedule Vil:
o It is attached to Article 246 and it contains the legislative distribution between union and states.
o It has three lists namely union, state and concurrent list. The union list had initially 97 subjects
which has been enlarged to 100, the state list had 66 which has been reduced to 6 1 now, the
concurrent list contained 47 subjects that has increased to 52 now.
I­ o Five subjects have been subtracted from the state list and have been added to the concurrent list,
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placed in the Union List, while the concurrent list in which both the union and states can make
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organization of subordinate courts. The Punchhi commission had recommended that these
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namely- Bodo, Dogri, Konkani, Maithili, Nepali, Sanskrit, Sindhi, Urdu, Santhali.
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1- o Detractors of these schedule have mentioned that this schedule has been used as pacifying tool for
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w various linguistic demands to allay demands of linguistic based state demand- bodo, konkani etc.
o The criterion for inclusion in this schedule has been investigated by the Pahwa committee (1996)
and Mohapatra committee (2003) and associated issues like whether a language is a dialect of
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� o There have been nearly 38 instances of demands of languages to be included in this schedule like
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 and representation to the commission is based on the speakers of the language mentioned in the 8th
schedule) and Article 351 (casts a duty on the government to develop Hindi language). In an effort
to develop Hindi language, government can borrow from languages mentioned in 8th schedule and
primarily Sanskrit.
► Article 351: Directive for development of the Hindi language
► It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that
it may serve as a medium of expression for all the elements of the composite culture of India and
to secure its enrichment by assimilating without interfering with its genius, the forms, style and
expressions used in Hindustani and in the other languages of India specified in the Eighth -
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Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on I
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Sanskrit and secondarily on other languages. w
o The classical language status has been conferred on some languages namely, Tamil (2004), g
Sanskrit (2005), Telugu and Kannada (2008), Malayalam (2013), Odia (2014). The criterion used tna::
by government has been:
► Language should be of high antiquity (1500-2000 years)
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► Original literary tradition which has not been borrowed from any other speech community 0
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► Two international awards concerning language, u
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► a center of excellence, I
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 m S C H E D U LES O F TH E CO N STITUTI O N (N I NTH ­
TENTH) AN D ANTI - D EFECTI O N LAW (PART- 1)

The original constitution only carried 8 schedules, while we have 12 schedules after subsequent additions as
seen below:
• Schedule IX- 1st Constitution Amendment Act, 1951
• Schedule X- 52 nd Constitution Amendment Act, 1985
• Schedule XI- 73rd Constitution Amendment Act, 1992
• Schedule XII- 74th Constitution Amendment Act, 1992

Schedule IX:
• Added by PM Nehru through first amendment act and will be dealt in detail in the Fundamental Rights
section.

� Schedule X:
[ • Schedule X was added before in a different form and removed before being replaced by provisions
relating to the Anti-defection.
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z • In the earlier version it contained provisions detailing the relationship of Sikkim as an associate state
0 with the Indian Union.
w • Sikkim was added as an associate state through the 35th CAA, 197 4 through insertion of Article 2A
LL and Schedule 10 which were subsequently repealed after it became a full-fledged state in 36th CAA,
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1975.
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z • The present schedule deals with anti-defection and is attached to Article 102 (2) and 191(2).lt was
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z • Anti-defection doesn't apply to general party workers but to those members who have been elected to
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the legislature based on the party's ticket. The schedule X in the constitution only deals with defection
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arising at two levels- Union and states; the panchayats and urban local bodies are excluded from it, and
'7 it is upon the state legislature to include the provision in the state local body legislation.
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1- • Why such a legislation was needed:
z
o Breach of trust: Resigning the party with which the candidate has been elected leads to breach of
z trust of the public, who may have voted for the candidate based on the party affiliation or the leader
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j::: of the party.
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I- o Instability: Mass defection from a party leads to instability of the government as it reduces the
party's majority in the legislature and in extreme cases, even the government can fall.
z o Political Corruption: Prevalence of money power in politics has led to the swinging of loyalties and
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w hence it amounts to political corruption.
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I­ o Political Parties: Parties deploy a lot of resources in terms of canvassing, money, manpower to get
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0 the candidate elected. Hence defection tantamounts to treating the party in a casual entity.
Vl o In the late 1960s, defection was becoming rampant and thus a committee under Y B Chavan was
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w party, he should be disqualified and fresh elections must be held but stopped short of
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u recommending disqualification as a result of defection.
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 o The first attempt at curbing the practice was in 1973 through the 32 nd Constitution Amendment Bill,
which did not pass.
o The second attempt was in 1979 through 48th Constitution Amendment Bill, which also didn't pass.
Eventually Anti-defection law came into being in Rajiv Gandhi's premiership through 52 nd
Constitution Amendment Act, 1985.
• Provisions of Tenth Schedule:
• Resignation from political party leads to seat being vacant.
o This provision was present in the original law that along with the defectors, if one third split, it would
be deemed a legal split. This has been done away with now.
• Defying a party whip if not condoned within 15 days.
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• Independent members:
o If they join a party (but they can support government from outside and even become ministers if the �
political executive decides as such) �
• Nominated member:
o If the person who is being nominated is already a member of the party, then if he defects, the Anti­ !
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Defection Law will apply to him too. 0
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o If a nominated member is not a member of a party, he has two options namely- u
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► (1) He can join a party within 6 months from the date of his nomination u.
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► (2) Post the six month limit if he joins a political party, Anti-Defection Law will come into play.
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• Exceptions: z
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o Speaker, deputy speaker of LS and legislative assembly, chairman and deputy chairman of Q
legislative assembly and deputy chairman of RS are exempted There is no such provision for Vice z
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President(Chairperson of Rajya Sabha) since he is not a member of the house, so his defection does I
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not arise. z
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o A speaker or deputy speaker is allowed to resign from the party but is not allowed to rejoin the I-;"
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political party during his tenure as speaker and once his/her tenure ends, he can rejoin only his 1-
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parent political party from which he resigned �
• After the 91 Constitution Amendment Act in 2003, some changes were made in the Anti-Defection
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Law and some changes in the constitution too were added to further cement the effectiveness of the it: �
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o The one-third split legal rule was repealed. I-
o A party with two-third majority resolution passed can merge with the other party, the members �
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who do not support the resolution will not be treated as defectors and can continue as a separate
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group. w
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o Changes in constitution: 1-
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► Any allurement concern arising from the prospect of becoming a minister was curbed by limiting 0
a cap on ministers in LS and assemblies - Article 75(1A}, Article 164(1A). Vl
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► Article 75(1B) states that any member who has defected cannot be appointed minister again by :::>
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the executive for the remaining term of his office unless he gets elected to the house again. w
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► Article 361-B: Any disqualified member shall also be disqualified to hold any remunerative u
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 political post commencing from the date of his disqualification till the date of elections of the house.
• Issues with Anti- Defection Law:
o Power to decide on the defection:
► If a case of defection happens, any member of the house can file a petition to the speaker to take
action under Anti-Defection Law (ADL) and if the speaker himself undergoes defection, the
petition is supposed to be filed with the secretary general of the house.
► And decision regarding ADL petition against speaker would be taken by such a person of the
house specifically elected for the purpose.
► Since usually the speaker holds the membership of a political party, any decision made by him
can be seen with doubtful lens regarding the fairness of the process. Since justice must not only
be done, but also needs to be seen to be done.
� ► Thus the apex court in Kihoto Hollohan case in 1992, said that there is no wrong in the case
[ being decided by the speaker, but there will be a provision for judicial review since the speaker
acts in a quasi-judicial capacity exercising judicial functions, and the highest judicial court is
� Supreme Court, hence judicial review can be done.
z
0 • The adjudication process may also lead to errors due to deficient legal acumen, skill, etc. In one
w recent observation the SC remarked that the role of speaker as adjudicator in defection cases
LL could be divested from him and handed over to body/tribunal consisting of retired judges.
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► Article 102 mentions the grounds of disqualification including the defection provision. These
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z disqualification provisions excluding the defection ones are decided over by the President of
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z legislature in Article 192.
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► Article 103: Decision on questions as to disqualifications of members
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► (1) If any question arises as to whether a member of either House of Parliament has become
'7 subject to any of the disqualifications mentioned in clause ( 1 ) of Article 102, the question shall
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► (2) Before giving any decision on any such question, the President shall obtain the opinion of
z the Election Commission and shall act according to such opinion
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j::: o Whip gagging:
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I- ► The provision of whip suppresses genuine dissent.
► It does not allow to faithfully represent constituents
z ► It does not allow following one's own conscience.
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w ► It also reverses the paradigm of accountability: The anti-defection law reverses the paradigm of
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I­ the accountability between the executive and legislature. While the executive is supposed to
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0 draft legislation and convince legislators to vote for it and hence the accountability lies on the
Vl executive, with Anti-Defection Law the reverse happens, where due to an issuance of whip, a
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:::> legislator has to vote for the legislation. Even with the opposition, the ruling dispensation need
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w not convince everybody, but has to convince the opposition party leader to issue a whip and thus
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u make them toe the line. Thus it reduces debate culture in parliament and even genuine dissent
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Why is parliamentarians' contribution less to parliamentary debate?
• Lack of policy awareness, governance issues, nature of technical issues.
• Criminalization of politics
• Size of the houses too large while the number of sitting days has come down.
• Increasing disruptions of the house during functioning.
• Plus a large number of discussions have been delegated to parliamentary committees.
• Due to Anti- Defection Law, members cannot oppose the party's stand in the Parliament due to party
whip.
The courts have given some leeway with regard to ADL: Whip should be applicable on vote of confidence, no
confidence or major policy issue on which the party went to polls.
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o New trends in instability of Government:
► Should ADL also include coalition formations or in the absence of pre-poll coalition, should post !
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poll coalitions be allowed? 0
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► Thus instability can be caused in these situations too. Experts have suggested that pre poll u
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coalitions should be covered by Anti-Defection Law and if there is any defection, the party u.
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defection in bulk shall be disqualified.
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 m ANTI-DEFECTION LAW (PART 2)

Issues Regarding Anti-Defection Law (Contd.) 0 00:00:00

Anti-Party activities outside the house:
Suppose there is a legislator who is engaging in antiparty activities outside the house but is not resigning
and not defying whip and thus escaping action under Anti Defection Law.
• The ADL is silent on anti-party activities of this nature.
• Halim Committee (1998) said that a legislator is subjected to ADL when he resigns, but for anti-party
activities outside the house the term voluntary resignation in the A DL has to be defined in a more
refined way so as to cover the anti-party activities outside the house.
• In Ravi Naik Case (1994), even the apex court said that the legislator's conduct from outside the house
like when he is no longer interested in the betterment of the party, he is working against the interest of
the party, if not formally, he has taken himself informally outside the party, such a conduct of the
legislator can be inferred as an act of voluntary resignation, even though he hasn't submitted any
formal resignation.
• But the problem concerning how an anti-party activity is defined still remains a matter of debate.
0 00:06:33
Status of Expelled Members:
• In some cases there may be an expulsion of the legislator from the party.
• The reasons of expulsion could be genuine due to anti-party activities or a way of vendetta politics by
the senior leadership of the party.
• The Supreme Court in Viswanathan Case (1996) held that this expelled member hasn't voluntarily
resigned and hence such an expelled member would be treated as "unattached member" but he will
be subjected to the discipline of his parent political party i.e. accepting whip etc.
• Formally for the purpose Anti-defection law, he will be still treated as a member of the parent political
party
0 00: 1 2:00
Role of Speaker:
• Since the petition concerning Anti-defection law can be filed by any legislator of the house, the
problem arises that what will happen if the speaker refuses to accept the Anti-defection law petition.
• It is the speaker's constitutional duty to accept the petition. There may also be situation where the
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speaker immediately adjudicates upon the petition without hearing out all the parties and thus violates
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the principal of natural justice while carrying out his quasi-judicial function.
[ • The speaker has to carry out a thorough investigation and do proper fact finding and should give an
opportunity to render an explanation against the legislator against whom the petition has been
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z filed.
0 • If the speaker feels that the issue needs a greater investigation, he can also refer to a committee,
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w • Rajendra Singh Rana case, 2007 laid out these guidelines namely-whenever the petition is received
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� by the speaker he has to accept the petition regarding Anti-defection law, secondly he has to go
z through a proper investigative process like an opportunity to the defendant to explain himself, to the
 opponent to file proofs regarding defection and henceforth take a decision.
• There is another issue with respect to a speaker's role, whenever there are genuine cases of defection
where the speaker should have taken immediate decision and disqualified them, the speaker has
made inordinate delay in arriving at the conclusion and has done floor management to preserve the
interests of the political party in power.
• This is because Anti-defection law does not talk about any time frame within which the decision
should be taken.
• Occasionally the courts have directed the speaker to decide the matter within a fixed timeframe. Ideally
a norm should be codified in the ADL where very case should be decided within a span of 3 months.
• Another problem is that if a matter for defection goes to the courts, even the courts don't have a fixed
time frame to decide upon the issue. The SC has laid down the norm that if an Anti-defection law
petition is laid before the courts, it has to be decided within 6 months.

Note: Australia, Canada, France, UK, Germany do not have any penal provisions concerning defection while
South Africa, Bangladesh, Kenya and Singapore have some sort of penal provisions for defection.

Views of the NCRWC: 0 00:27:08

• The National Commission for the Review of the Working of the Constitution was set up under Justice
MN Venkatachalaiah in 2000 to examine the functioning of the constitution, which gave its report in
2002. It recommended:
o The cap on the number of legislators in the council of ministers ( 1 5%) was placed after the
NCRWC recommended a cap of 1 0%.
o The defectors should be barred from holding public office or any remunerative political post for
the duration of the remaining term.
o A case may arise in certain situations where the defeated legislators are not disqualified from the
house and subsequently participate in the no-confidence motion against the government, then
there may arise instability in the government which anti-defection law tried to prevent.
o NC RWC tried to prevent this by recommending that such votes should be declared invalid as such a
provision is not there in the Anti-Defection Law. Though the courts have come to the rescue in such
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cases of floor management, such norms should be placed in the anti-defection law itself. The vote
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cast by a defector to topple the government has to be treated as invalid as recommended by the
NCRWC. l
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Views of Law Commission: z
• The Law Commission recommended that the provision that exempts merger and split must be
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• It also suggested that Anti defection law should also cover pre-poll alliances. w
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Issues with the Anti-Defection Law: z
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 • Even though many steps have taken place to prevent defections, they happen anyway.
• Defection is principally a result of ethical deficit in our political culture.
• If a legislator is ready to leave his/her political party on the basis of some allurement, then the problem
is political culture and the ethics that has dipped in the political culture. Any legal addition to the anti­
defection law tries to solve an ethical dilemma with a legal intervention.
• The ultimate solution will be the maturing of political culture that frowns over such things and does
not support such actions of their leaders.
• Another issue is that defection proceedings happen only when a person gives up the membership of
the party and not when he resigns from the seat or the membership of the house itself. Such
candidates later switch parties, contest by-elections, and do not invite anti-defection proceedings
onto them. 0 00:49:22

Some Parliamentary Terms Associated with Anti-Defection Law:

• Crossing the floor: Inspired by the British House of Commons, where two parties sit on either side
opposite each other, namely the ruling party and opposition parties, and thus the term means
changing party loyalty.
• Holding the Floor: The act of speaking on the floor of the house with the due permission of the
Speaker.
• Yielding the Floor: The act of the Speaker of the house to make a person stop speaking and allow
someone else to speak in the house.

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 mJ
TERRITORY OF I N DIA AN D
REO RGAN IZATION OF STATES
Territory of India and Part 1 (Article 1 to 4) : 0 00:00: 10
• There are 4 articles of the constitution that deal with this.
• In the year 1956 the State Reorganization Act was passed. States which were classified earlier into 4
parts was done away with this act.
• This classification was Part A (9 states that were governor provinces), Part 8 (9 States that were
formerly Princely States), Part C (10 states that were chief commissioner provinces) and some princely
states that were the predecessors of Union Territories.

Article 1: 0 00:03:53

• The first article itself starts with a conflict concerning the naming of India. It says that India, that is
Bharat is a union of states. Even though we have a two tier government set up, we have not used the
word federal or termed India as a federation of states.
The term union of states was preferred because:
• No state has the right to secede, i.e. no right to become an independent entity outside India.
• Our federal setup was also not similar to the USA, because US federation was a result of contract
between formerly independent colonies which came together to form USA. Our federation is not the
resu It of contract.
The states and UTs are mentioned in First Schedule. The term territory of India includes the states and
union territories but also such territories that may be acquired later.
• The apex court wondered that the usage of the term 'acquired' gives the right to State to use an
l/)
expansionist foreign policy. The court termed that acquisition of foreign territories is done under the
w
aegis of international law and just the mere usage of the term 'acquired' doesn't confer the
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Article 2
• This article deals with the admission and establishment of new states that are not a part of India. This
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w can be done through a law enacted through Parliament.
Article 3 0 00:13:24
• This article deals with domestic reorganization. The following can be done by the Parliament through
the enactment of a law:
o Increase the area of the state
o Diminish the area of any state
o Alter the boundaries of any state
o Alter the name of any state
• There are two conditions mentioned as proviso in the article. These include:
o Any bill seeking to do any of the things mentioned above can be done by introducing the bill in
either house of the Parliament after taking President's recommendation.
o Before any bill is enacted, it has to be referred to the legislatures of the states being affected by
the proposed change to extract its opinion.
• But that opinion is not binding on the Parliament. This matter of Center having such power over
states was debated in the constituent assembly too.
• The Assembly remarked that use of this power should not be arbitrary such that it reduces the states
to glorified municipalities.
• Regarding the consent of the states, the assembly remarked that the process has to be effective and
should not be reduced to a formality. Shouldn't the consent be essential was also a question that
came to the minds of the constitution makers. But it was observed that if consent was made essential,
then reorganization would become an increasingly impossible venture.
• Most reorganization in India has been carried out through a consensus like the linguistic

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reorganization, preservation of tribal identities, addressing development deficit etc. w
Since everywhere in the article, the term 'State' is mentioned, then are union territories not covered in the
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exercise? LL
0
• The answer is that the term State includes Union Territories, but in the proviso the term State doesn't z
0
include Union territory and thus the opinion of the union territory's legislature if existent is not
necessary.
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Berubari Union Case: a::
• 0
In 1 9 58, an agreement was signed between Pakistan and India to transfer some land to Pakistan in w
a::
exchange for some territory. Q
z
• This was the Berubari Union Case where the question revolved around whether the Union <
Government needs the approval of Parliament to conduct exchange of territory between countries. <
Q
• Thus, under Article 143 that deals with the power of advisory jurisdiction of the Supreme Court, the z
court opined that legislative action is required in such actions taken by the government.
0
• Additionally, the courts also said that to give effect to such treaties, they cannot be covered under the
�
procedure laid down under Article 3, and a separate constitutional amendment has to be brought to
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bring into such effect. Hence the 9 Constitutional Amendment Act was passed. �
a::
• Thus in the recent times, with respect to the issues of enclaves in Bangladesh, the 100th w
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 Constitutional Amendment Act, 2015 was passed by the Parliament.

Article 4: 0 00:41:29

• It states that no such law made for dealing with matters related to Article 2 and 3 shall be deemed to be
a constitutional amendment under Article 368.

Language as a Basis for State Reorganization

0 00:42:43

• In independent India, the principal basis for reorganization of states was language which was thus a
break from colonial organization of states which was based on administrative convenience.
• But before coming to this basis, there was much debate among national leaders regarding the basis for
reorganization.
• In the 1920s, there was more or less of a consensus in the congress that language should be the basis
for reorganization and later, even Gandhiji organized congress into Pradesh Congress Committees on
linguistic lines disregarding the colonial organized boundaries.
• But post-independence, Nehru witnessed the horrors of partition and became opposed to the idea of
linguistic reorganization. He stated that there were numerous languages in the country and thus
reorganization on those lines would give rise to Lilliputian states. (trivial or very small states)
• Thus he was focused more on creating a national identity rather than a linguistic identity.
• Since language was a strong binder and created a greater sense of identity, a state reorganization
based on languages would lead to a slippery slope where even demands for secession may be
justified as seen in Europe.
(/)
w • Another concern was that language can also be a basis for raising secular demands like employment,
�
� subsidies etc. that could create xenophobic demands against people from other states.
LL • But another contrarian take is that on what basis apart from language could the state reorganization
0
z be carried out- basis of religion, caste, etc.?
0
• A language is a more secular basis for reorganization than any other identity and hence was
preferred. Another benefit could be that it would make the task of educating children in their mother
z tongue easier.
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(.!) • A similar benefit is that masses can take part better in administration if the language used is the
0::
0 native language. Similarly, it also ensures regional languages are preserved, promoted, and enriched.
w
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z Nehru's Opposition to Linguistic Reorganization:
0 00:56:40
<(
<( • It would spur further such demands due to the large number of languages in country making
Q
z governance very difficult.
LL • It would stall the process of building national identity and focus on linguistic identity may stall it.
0
• It could threaten national identity since language is a very strong bond and hence may lead to fears
�
� of secession as seen in Europe
� • Languages becomes a channel for expressing secular demands in case of unemployment, subsidies
0::
....
w etc.
Case in Favor of Linguistic Reorganization 0 00:59:38
• If the states were multilingual, it would become difficult to administer them.
• Education in mother tongue helps in personal development; it further helps in development of regional
culture and language.
• Masses can participate in democratic culture.
• Secular basis of reorganization that transcends identities like caste and religion.

Commissions Investigating State Reorganization:

0 01:04:28

• Towards the end of 1940s many demands came forward demanding states to be organized on
linguistic basis. But the most prominent was the Telugu speaking areas in Madras State by stalwarts
like Swami Sitaram and Potti Sreeramulu who went on a hunger strike and finally sacrificed himself.
• Thus in 1953, the state of Andhra Pradesh was created as the first linguistically organized state in
Independent India. In 1936, Odisha had been organized on linguistic basis.
• Thus SN Dhar Commission was appointed in 1948 to examine the issue and thus suggested
administrative convenience as a basis and rejected linguistic reorganization.
• Later, in 1948, the JVP Committee was created under the leadership of Jawaharlal Nehru, Vallabhai
Patel and Pattabhi Sitaramaiah and it also rejected the demand of linguistic reorganization.
• But till then a critical mass had developed that was demanding linguistic reorganization. Ramchandra
Guha in his book 'India After Gandhi' states that if Nehru was the maker of Modern India, then Potti
Sriramulu was the Mercator of Modern India.
• Thus in 1953, the First State Reorganization Commission was established with Fazl Ali as the
(/)
Chairperson and KN Pannikar and H N Kunzru as other members. w
• It accepted the linguistic basis with some caveats. These caveat included: �
�
o Not using the linguistic basis that would threaten the unity of the country. LL
0
o It further rejected the principle of one state-one language as seen in the case of Hindi. z
0
o Economic and financial viability should be a viable unit for planned economic development.
• It recommended 16 States and 3 Union Territories. The Union finally modified that into 14 state and 6
Union Territories and it gave away with the earlier four fold classification as seen in the British Era. z
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• No l i nguistic reorga n isation w
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Dhar, 1948 • Reorga n isation based on a d min istrative convenience 0
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• No li ngu istic reorga n isation <(
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JVP, 1948
z
LL
• Linguistic reorga nisation with some caveats 0
• No one state-one la nguage
SRC, 1953
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 Government's Response to Reorganization Demand 0 01: 19:25
• Provision of development packages if the demand for a new state stems from development deficit.
• Provision of autonomous councils if the demand is regarding more democratic rights as seen in
Darjeeling through the Gorkhaland Territorial Administration.
• Awarding 8th Schedule status to the language if the demand for new state is due to a linguistic basis.
• Provision of Development Boards if there are claims of uneven development as seen in the provision of
Vidarbha Development Board.
• Provision of autonomus state status within a state as seen in Meghalaya within Assam through
Article 244A, which was later converted to a full-fledged state in 1972.

Note: If all states were nations, then 10 Indian states would occupy the top 2 1 countries on the basis
of population. Thus arguments for small states keep coming up.

Question of Small States and Arguments in Favour: 0 01:29:32

• Administrative convenience is cited as a benefit.
• A large state has various terrains, development priorities and thus needs multiple perspectives in a
single state to bring about equitable development. This is an onerous task and thus a small state is
more homogenous in nature and thus the planning and development exercise is relatively easier too.
• The smaller states have historically had higher growth rates in retrospect in case of Punjab and
Haryana; successor states like Uttarakhand, Jharkhand and Chhattisgarh, etc.
(/)
• The capital in smaller states is much nearer to the population and hence more democratic
w participation can be expected but this has not beared out in reality.
�
�
LL Issues with Small States: 0 01:38:26
0
z • The first issue is defining what constitutes as a small or large state. Should the population of the
0
state, land area, or both or any other criterion should be used to define the threshold.
• The center-state issues, border issues, water sharing issues would erupt and managing interstate
z relations would get difficult.
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(.!) • It might amount to undoing of Sardar Patel's good work and going back to pre-independence days of
0::
0 making smaller territories.
w
0::
Q • Smaller states do not guarantee human development and other pre-requisites like existing resources,
z sound planning, proper implementation, incorruptible bureaucracy, proper training to officials
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<( imparting the missionary zeal, grand vision of the leader etc. Thus the size of a state or it being small is
Q
z not the only indicator for a state's destiny. Thus even small states are found at the lower end of
LL human development rankings.
0
• Additionally, smaller states have issues of lower resource mobilization; problems of creating new
�
infrastructure like new capital, and in retrospect require much more central assistance in handling
�
� exigencies like left wing insurgency as compared to larger states.
0::
....
w • The argument that smaller jurisdiction leads to better growth cannot be maintained if we consider that
 such small jurisdictions already exist as districts, panchayats, urban local bodies etc. and thus any
such reorganization should be prioritized there first before going for state level reorganization.
• Thus democratic decentralization should be first line of action followed by provision of adequate
funds, and empowerment with functions and functionaries.

Case of Uttar Pradesh 0 0 1 : 56:49

• Dr. Ambedkar was apprehensive of making Uttar Pradesh as a single entity as it was a large state both
in terms of population size and territorial size.
• He proposed dividing UP into three states.
• His argument was administrative convenience, disproportionate influence in national politics, and
better representation of minority interests.
• The state has been proposed in recent times to be split into four states namely: Harit Pradesh, Awadh,
Purvanchal and Bundelkhand for administrative convenience, though questions of economic viability
still remain.
• Apart from this, if smaller jurisdictions are a solution, then more districts should be made because the
population increased from 13 crores in 1990 to 23 crores in 2020 while the districts increased from
63 to 75 only, thus increasing the grassroots participation of people would require more districts.
• Empowering the local bodies too can be done before jumping to the conclusion of dividing the state
and terming that as a panacea to the problem of governance deficit.
• If the large population of India is an asset, then the same can be said of Uttar Pradesh. Moreover, since
the state has a large population share, thus its population enjoying greater representation cannot be

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termed disproportionate rather it is the democratic right of the people. w

Case for a 2nd State Reorganization Commission:

0 02:05:03 �
LL
0
• There have been demands for new states such as Koshal (Odisha), Kodagu(Karnataka), Vidarbha z
and Kon kan ( Maharashtra), Bodoland (Assam), Ma ru Pradesh ( Rajastha n), Mith i lanchal ( Biha r), 0
Gorkhaland(West Bengal).
• Thus when such demands arise, the government at the Union level sees these demands through the z
political lens rather than the rationality and modern scientific criteria that is expected.
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• Thus a 2nd SRC would help us evolve a rational, scientific and objective criterion towrads such 0
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demands. a::
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• The process of state reorganization is an evolving exercise and not a one stop exercise and as the z
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demands for statehood arise, they have to be examined properly. <
• 30 years of LPG reforms has brought about many demographic, economic, social and regional Q
z
imbalances and allegations of regional neglect. LL
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• Population in certain states has grown very large leading to concerns about governance.
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• Thus these reasons provide enough rationale for the government to consider constituting a 2 nd SRC.
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Delhi's Demand for Statehood: 0 0 2 : 1 2:43 w
�
 There have been demands from the leadership in Delhi to get it statehood. There are similar demands with
respect to Pondicherry too. Though the demand is not very popular among the masses, it nevertheless
needs examination.

Arguments in favour:
• Delay in decision making:
o The central government in Delhi is responsible for Police, Public order and Land, while the state
government also has powers, and even Lt Governor has some responsibility. Since the
responsibility is fragmented, the accountability is fragmented too, leading to delay in decision
making.
• Population:
o A large number of states have a population less than that of Delhi and are still full-fledged states
and hence give credibility to the demands.
o But if we take the population arguments to the extreme, then many metropolitan cities have
population more than some small states and hence should they too be made a state.

Arguments against:
• National Capital:
o Delhi is the national capital of the country and hence holds a sentimental value for all Indians. Thus
the capital cannot be made the property or entity of a certain section of the population only.

(/)
• Financial Viability:
w o Delhi is an urban agglomeration and whatever industries were present have been slowly shifting
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out due to the pollution norms.
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LL o Thus the state would increasingly depend on Central transfers. Since it would remain a capital,
0
z lack of financial resources would affect the provision of civic amenities and to maintain the same
0
level of services, taxes on the citizens would have to be increased.
• Resource Dependency:
z o The state would have to depend on other state for water, power etc. that are assisted by the Union
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(.!) Government now.
0::
0 Thus, instead of making Delhi a state, steps like empowering the elected government and returning the
w
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Q Lt. Governor back to nominal status, devolving extra powers to the Delhi Government that are now
z existent with the Union Government can be considered.
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z Reorganization of Andhra Pradesh and Telangana's Creation:
0 02:26:03

LL • Telangana was carved out of Andhra Pradesh through the Andhra Pradesh Reorganization Act, 20 1 4.
0
• The demand for the state of Telangana was even there in the 1950s when the state of Andhra
�
Pradesh was created. People in Telangana felt that time that their interests might be overlooked in the
�
� Joint Andhra Pradesh.
0::
....
w • During those times an informal agreement was signed namely a Gentleman's Agreement between
 the political leaders, providing assurance to Telangana's leaders that their concerns regarding jobs,
education etc. would be taken care in the new state.
• Moreover, the demand for Urdu to be recognized as an official language also emerged. It was also
committed that when the Council of Ministers is constituted, a certain number of members would be
from Telangana in the ratio of 60:40, where 60 % of the members were to be from Andhra Pradesh
and 40% from Telangana.
• But issues arose due to the halfhearted implementation of the agreement.
• Thus many agitations arose to demand separate statehood for Telangana and the BN Srikrishna
Committee was formed in 2010 to look into this matter of statehood due to development deficit.
• The committee suggested that as much as possible, the state shall be kept united, and regarding
development concerns an Empowered Development Council for Telangana can be formed within
the same state.
• It also suggested division of the state in case of unavoidable circumstances.
• Thus the state was divided and Telangana was formed through the Andhra Pradesh Reorganization
Act, 2014. Its features were:
o Telangana state would be created with 10 districts.
o Hyderabad would be the joint capital for a period not exceeding 10 years during which period
Andhra Pradesh would setup its own capital and Hyderabad would become the capital of
Telangana.
o They would have a common governor for some time to come, and the common governor was given
unique responsibilities for law and order, security, allocation of government buildings, etc.

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o It also postulated a joint High Court that has been divided now just like as the governor was w
separated. �
• Some constitutional issues arose on account of the governor having extensive powers that would have LL
0
been conferred to the state government's domain. z
0
• While such powers have been vested in the governors of certain states, but these governers derive
their power from the constitution and not an ordinary law.
z
• There is also Article 371D which contain special provisions for Andhra Pradesh that got split between <
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the two states which got amended through the act itself. a::
• This raised eyebrows as an amendment had been done through an ordinary law. Article 4 talks about 0
w
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implications arising out of state reorganization and how amendments to deal with those changes are Q
z
not to be considered an amendment under Article 368. <
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Note: The apex court has also ruled that a bill after being returned by the state legislature to the z
Parliament needn't be put again for a vote at the state legislature for a resolution even if there were far LL
0
reaching changes.
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w
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 rri NATURE OF FUNDAMENTAL RIGHTS,
l:iz.:I ARTICLE 12 & 13
Fundamental Rights are the rights that are found in Part Ill and Part Ill of the Indian Constitution alone. Other
rights like Right to Vote are found outside Part Ill and hence are not termed as fundamental rights. Similarly
rights outside the constitution like right to information too are not fundamental rights.

Nature of Fundamental Rights 0 00:05:25

• Most rights are negatively worded or are in the nature of negative injunctions against the state. Most
rights start with what the state is not allowed to do like the state cannot deny freedoms, equality. While
this negative nature of the rights may seem to be the norm, there are some positive injunctions
towards the state too where the state is instructed to perform its duties, an example being Article
2 1A concerning with right to education.
• Most of these rights function vertically against the state. There are also rights that function
horizontally like Article 17 concerning untouchability that prohibits practice of untouchability against
fellow citizens. The vertical nature of most rights does not mean that those rights can be violated by
citizens. While violation of these rights by the state can be addressed with constitutional remedies
under Article 32 and 226, any similar violation by citizens cannot be addressed by constitutional
remedies and hence have to be addressed through the usual means like civil remedies of FIR,
subordinate courts etc.
• They are all justiciable and citizens can address their violations directly to the apex court or the
concerned high courts.
• They are available to all citizens of India. In any article across Part Ill which contains the term "person",
it denotes that the right is available to both citizens and non-citizens, for e.g. Artcile 14, Article 19, etc.
o Article 14: Equality before law
....
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o The State shall not deny to any person equality before the law or the equal protection of the laws
�
....
N within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or
w place of birth.
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u • No right can be enjoyed in absolute terms and hence have reasonable restrictions imposed on them.
<( o Can be suspended during national emergency (Article 352)
o Only parliament can modify by law (restricted or abrogated) the extent of application of
J: fundamental rights with regard to police forces, paramilitary etc. under Article 33 is an example of
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parliament exercising this power is the Police Force Restriction of Rights Act, 1966.
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► Article 33:
z
w
► Power of Parliament to modify the rights conferred by this Part in their application etc.
� Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in
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C their application to,
z
::::, ► (a) the members of the Armed Forces; or
LL
LL ► (b) the members of the Forces charged with the maintenance of public order; or
0
w ► (c) persons employed in any bureau or other organisation established by the State for purposes
0:::
::::, of intelligence or counter intelligence; or
z ► (d) persons employed in, or in connection with, the telecommunication systems set up for the
 purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or
abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline
among them
• Most of the rights are self-executory:
o They are readily available and need no additional law or provision to execute this.
o An example of a fundamental right that isn't self-executory is Article 17 concerning
untouchability which prohibits untouchability and sanctions punishment in accordance with law,
hence this fundamental right needs a separate law to enact its provisions and hence isn't self­
executory compared to other fundamental rights which are self-executory.
o Even the Article 21A concerning Right to Education isn't self-executory and needs a law to
execute it namely the Right to Education Act, and even Right against Exploitation under Article 23
too isn't self-executory and needs a law to actualize it. The power to make these laws in order to
execute the fundamental rights lies solely with the parliament (Article 35).

Article 12: 0 00:34:33

• Article 12 defines states in Part 3 for the purpose of interpreting rights. Since most rights function
vertically against the state, it becomes imperative to define the state to effectively actualize these rights.
• Article 12 mentions state as including:
o The government and parliament of India
o The government and legislature of each state
o Local authorities both rural and urban
o Authorities within territory of India and under the control of Government of India.
• The most debates happen around the term authorities under the control of government and the ....
M

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debates become vague and ambiguous.
....
N
• The state's function is dynamic and there has been increasingly a pattern of government functions w
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being outsourced to authorities that function on behalf of the government, the question arise that u
whether citizens can claim fundamental rights against these entities too. The court has given a number
of tests for these: u;
1-
o If the body is set up by a statute or executive order, for e.g. U C, RBI etc. J:

o If the government exercise substantial financial and administrative control over it

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o If that entity is used as an agency of the state/instrumentality of state i.e. if the functions performed
by the agency were performed by the state before and are now being performed by the z
w
agency(more clarity)
o If it performs sovereign functions of the state like defence, taxation, law and order etc.
z
o Law commission suggested including BCCI as a public authority under RTI act. :::>
LL
• An interesting observation is that there is no explicit mention of judiciary as being a part of state. LL
0
• Basically judiciary is there to protect the citizen's rights and the usual violators of rights are executive w
0::
entities like police, civil servants and legislative entities like parliament that can legislate laws violating :::>
the rights of the people. z
 • Judiciary is a dispassionate observer, whenever the citizen's rights are violated, the judiciary restores
those rights, judiciary doesn't engage in the actual implementation of those rights and hence there
should not arise any question of violation of rights.
• But judiciary doesn't just perform its most basic judicial functions but also administrative functions like
management of its own staff, laying down procedures to perform functions which may violate
fundamental rights.
• While the judiciary in its judicial capacity is a restorer of rights and isn't a violator and hence not
under the definition of state, the judiciary under its administrative capacity can violate the
fundamental rights of citizens.
• On this question the court has admitted that the judicial functions will not attract the definition of the
state, but its administrative functions may attract the definition of state under Article 12.
• Another aspect of debate picking up recently is that the courts are increasingly engaging in judicial
activism and performing the functions of the executive or legislature and if these actions violate the
fundamental rights of the citizens, whether judiciary will attract the definition of the state under article
12 or not. There has been no response come from the courts regarding the issue and it is still a burning
issue.

Article 13 and amendability of Fundamental Rights: � 01:08:30

• Judicial Review is the power of the courts to review the actions of the executive and legislature while
performing their functions if they are unconstitutional. The power of judicial review of the judiciary is
not mentioned directly in the constitution but can be derived from the understanding that we are a
liberal democracy and have separation of powers in the government.
....
M
• Since there is separation of powers in the government, it is implicit that judiciary will have the powers
�
....
N of judicial review to strike down any unconstitutional law. But Article 13 explicitly deals with the power
w of the judiciary to strike down laws violative of fundamental rights i.e. Part Ill of the constitution (not the
..J
u whole constitution)(Art 1 3(2)).
• While the provision provides to declare any law violative of part Ill as void, it does not categorically
<(
mention that it is the duty of the judiciary to perform that function.
J: • The government usually doesn't take away or abrogate a right but reduces the availability of the right
l!)
by amending the right itself in the constitution.
..J
o Article 1 3(2): The State shall not make any law which takes away or abridges the rights conferred
z
w
by this Part and any law made in contravention of this clause shall, to the extent of the
� contravention, be void.
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C • Article 1 3 (2) states that the 'state shall not make any law', Law is usually understood as ordinary
z
::::, /statutory law passed by legislature, but can the constitutional amendment laws passed by the
LL
LL legislature too be considered law as mentioned in Art 1 3(2)?
0
w • The question whether fundamental rights are amendable or not lies in the answer to the question
0:::
::::, whether constitutional amendment law qualifies as law under Art 13 (2) or basically how we define law

z under Article 1 3.
 • A narrow interpretation of the term law includes ordinary law only and constitutional amendment is
out of it and hence consequently it leads to possibility of states violating fundamental rights through
constitutional amendment laws.
• A wider interpretation of the term law in the article 13 would include even the constitutional
amendment laws and hence include them under judicial review provided under article 13 to protect
fundamental rights, leading to fundamental rights being unamendable.

N a rrow l Wider l
interp retation j interp retation

- -
Also include
Only ord inary
Constitutiona l
law under Amendment
Article 13 under Article 13

- -
Constitutional
amendment not S u bject to
as law under j u d icia l review
Article 13

- F u n d a menta l
Rights - Funda menta l
Rights
u namendable
amendable

The apex courts position:

• Shankari Prasad case, 1951 to Sajjan Singh case, 1965, the apex court held on to a narrow
interpretation of the term law in article 13 and considered constitutional amendment laws out of the ....
M

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scope of its definition. This proposal that the court made was that parliament has the right and ....
N
authority to amend the constitution and it is unfettered. w
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• In Golaknath Case, a 11 judge bench with a narrow margin of 6-5 reversed its earlier interpretation u
and moved towards the wider interpretation of the term law and hence including even the
constitutional amendment laws under the purview of judicial review. The court observed that the u;
1-
fundamental rights are termed fundamental for a reason; they have been given a uniquely elevated J:

position and status in the constitution and hence are transcendental in nature and rise above the other
..J
provisions. The court hence deemed the fundamental rights unamendable.
z
w
Reaction from the executive and legislature:
• In the 24th Constitution Amendment Act, 1971, both Articles 13 and 368 were amended by adding
z
Article 13(4) and 368(3). :::>
LL
• Art 13(4) stated that nothing in Article 13 would apply to any amendment of the constitution done LL
0
under Article 368. This was an attempt to narrow down the interpretation of the term law used in w
0::
article 13. :::>
• Art 368(3) stated that nothing in article 13 shall apply to provisions made under this article to double z
 secure the narrow interpretation. This was challenged in the future in the Keshavananda Bharti vs.
State of Kerala (1973), popularly known as Keshavananda Bharti case.
o Keshavanada Bharti Case (1973) was a case concerning freedom of religion that ultimately
decided the question regarding the amendability of fundamental rights.
o The courts took a middle path between the narrow interpretation espoused from Shankari Prasad
case till Sajjan Singh and the wider interpretation in Golaknath case. The courts observed that all
parts of the constitution are amendable but no change or amendment should have the effect of
changing or altering the basic structure or core identity of the constitution.
o The courts generally defined the basic structure as those elements without which or if there is an
infringement of them, the constitution will lose its very soul and essence.
o The apex court in various judgements over the last five decades has listed out the various features
that constitute the basic structure.

Some features constituting the basic structure:

• Supremacy of the constitution
• Rule of law
• Separation of Powers
• Judicial Review
• Federalism
• Secularism
• Unity and integrity of the country
• Sovereign, Democratic, Republican structure
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• Dignity of the individual
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• Principle of welfare state
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• Limitations on amending powers under Article 368
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Critique of Basic Structure: 0 0 1 :39:36
• No constitutional basis:
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o The constitution as a whole is a basic law and the basic structure provision is an attempt to locate
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something even more basic than that.
� o This line of thought was not there in the constituent assembly. The constituent assembly never
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::::, • Re-writing the constitution:
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 o The Supreme Court has practically become the third and decisive legislative chamber of the
parliament, apart from the LS and RS in framing laws.
• Against the principle of majority:
o Democracy can be described as rule by majority.
o Constitutional amendments require overwhelming majority to pass in the legislature. Thus
assumption of the role of SC as a super arbiter of the validity of constitutional amendments
amounts to the illegitimate negation of democratic rule i.e. majority rule.
o But judiciary in liberal democracies with separation of powers do play a counter majoritarian role,
thus preventing arbitrary laws and laws violative of rights from coming into fruition.
o A law making process based solely on majority rule, where neither the opposition, media nor public
opinion can halt the passage of arbitrary legislation, then it becomes imperative for the court to
come into the picture and play a counter-majoritarian role, so this criticism has a significant caveat
attached to it.
• Decision by narrow margin:
o This 13 judge bench had a very narrow majority of 7-6 and thus such a fundamental revision of the
constitution with such a slim margin inspires less confidence.
• Decision to include or exclude features based on subjective assessment:
o The power to decide the inclusion of subjects in the basic structure lies with the apex court bench
and the judges on it. Hence any subject's inclusion or non-inclusion is based on subjective
assessment of the judges which can vary from person to person and even time.

Points in support of basic structure: 0 01:49:55

• In a democracy based on constitutionalism, the concept of constitutionalism abhors absolutism, there ....
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constitution cannot be absolute and hence have to be subjected to some limitations. w
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• Basic structure doctrine helps in preserving our core value and constitutional identity. Popular opinion u
is always fleeting and always fluid. If there is some provision that the country wants today, it may not
want tomorrow. u;
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today cannot be made to override the permanent vision in the constitution of our framers. The
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parliament thus has a power to amend and not re-draft the constitution.
• Basic structure privileges uncertain democracy over certain tyranny. z
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• The overarching framework of our constitution is secular, liberal democracy, thus the elements in the
constitution work towards enacting this framework. Any provision being classified as a part of basic
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• But which provisions of the constitution constitute basic structure is uncertain and may vary from LL
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judge to judge or bench, thus leading to an uncertain democracy. w
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• But the courts have been very responsible about applying basic structure doctrine and have not :::>
abused their powers. z
 • This has led to basic structure doctrine being adopted in international jurisprudence, an example being
Bangladesh Supreme Court in 1989 quoting Keshavananda Bharati judgement, applied the basic
structure doctrine to Bangladesh constitution as well.
• Uganda too referred the Keshavananda Bharati Judgement in 20 19 to adjudicate the amendments
made in the constitution.
• Apart from this, in the Basic Law of Germany under Article 79 talking about the amendment
procedure, has a provision saying that there are certain provisions in the constitution that are not
amendable, thus codifying a basic structure in the constitution itself and not through the courts.

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FUNDAMENTAL RIGHTS
- ARTICLES 14 & 15
Categories of Rights:
• Right to Equality (14-18)
• Freedom (19-22)
• Exploitation (23-24)
• Freedom of Religion (25-28)
• Cultural and Educational Rights (29,30)
• Right to Constitutional Remedies (32,226)

Article 14 0 00:04:00
• Equality before law:
• The State shall not deny to any person equality before the law or the equal protection of the laws within
the territory of India.
• The article is available to "any person" hence available to citizens as well as foreigners i.e. equality
before law and equal protection of law
• Equality before Law (EBL) :
o Theorized by Dicey, basically all people have to be subject to equal application of the law of land. In
the eyes of law, all are treated equal, hence formally equal.
o It is seen as negative right in nature because nobody is given special privileges.
• Some exceptions:
o Article 36 1,diplomatic immunity, parliamentary privileges, defamation, contempt of court
• Equal Protection of Laws (EPL) :
o Just because everybody is equal before law, doesn't necessarily mean everybody is actually equal.
o It is considered a positive concept, in contrast to EBL that is seen as a negative concept. While EBL
is derived from England, EPL is borrowed from US.
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o It simply means that like must be treated alike, or law must be equally applied among equals, thus it
clS gives in effect the substantive notion of equality.
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treatment can be meted out to the different groups, but courts have added the classification of
u society should be reasonable and not arbitrary.
• It has given two tests of reasonableness:
I o Firstly, categories so formed should be a homogenous unit,
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1- o Secondly, the classification exercise should have a reasonable nexus with the objective to be
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secured.
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w Article 15: 0 00:45:46
• Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
z o (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
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place of birth or any of them
 o (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to
► (a) access to shops, public restaurants, hotels and places of public entertainment; or
► (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public
o (3) Nothing in this article shall prevent the State from making any special provision for women and
children.
o (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes.
• State cannot discriminate citizens only on the mentioned grounds.
• NCRWC recommended the grounds to be expanded based on political opinion, property and social
and ethnic origin.
• The state can discriminate based on grounds that aren't mentioned here.eg-residence.
• But the state can positively discriminate for women and children, while the first clause provides vertical
protections from discrimination, the second clause provides for protection from horizontal
discrimination (e.g. of Tamil Nadu (Restriction on entry to Public Places based on Dress Codes) Act,
20 14).

Is there provision in the constitution to reserve government jobs for backward castes/classes?
• While art 16(4) gives govt sanction for reservation for backward classes in government jobs, the
Article 29(2) denies such discrimination in educational institutes:
o Article 29 (2): No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any
of them. Ill
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• Thus quotas based on this article are prohibited. But since, caste based quotas were available in pre­ �
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independence times, they continued after independence as well. .-i
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• But in Champakam Dorairajan Case of 1951, courts struck down the quotas based on Article 29(2). w
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• To get around the judgement, the first constitutional amendment act added a clause 4 to Article 15: u
o Article 15(4): Nothing in this article or in clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes of I
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citizens or for the Scheduled Castes and the Scheduled Tribes. 1-
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Present status of reservations in India: ...I

• Scheduled Castes: 15%

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• Scheduled Tribes: 7.5%
• OBCs: 27%
• Persons with Disability (PwD): 4% z
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• Economically Weaker Sections (EWS): 10%
 • Total reservation: 63.5%

Percentage reserved
■ Sched u led Castes ■ Sched u led Tribes ■ OBCs ■ PwD ■ EWS ■ Un rese rved

4%

Various state governments have been pressurizing private institutions for reservation; can the
government impose such reservation?
• Apex court in P.A. lnamdar judgement in 2005, private unaided education institutions cannot be
forced to have quotas due to Article 14 and Article 19 (1) (g).
• While private enterprises are commercial entities and hence singling out one private sector entity,
while leaving out others is violation of Art 14 and they also can carry out their occupation due to
LO freedom of profession as seen in Art 19(1) (g).
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� • To get around this judgement, 93rd Constitution Amendment Act was passed wherein; Article 15(5)
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o Article 15(5): Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the
u State from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so
I far as such special provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30.
...J • While minority institutions were omitted, special provisions for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes relating
z
w to their admission in educational institutions can be done only through law.
• But reservation in government jobs doesn't need a law; they can be brought through an executive
z order, because a requirement of law was not present in Article 16(4).
::::)
u. • Similarly, while law is required to make provision for backward classes in educational institutions, no
 such law is required for EWS quota as per article 15 (6) after the 103...i Constitution Amendment Act.
• Article 1 5 (6) : Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29
shall prevent the State from making,-
o (a) any special provision for the advancement of any economically weaker sections of citizens other
than the classes mentioned in clauses (4) and (5); and
o (b) any special provision for the advancement of any economically weaker sections of citizens other
than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their
admission to educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in clause ( 1) of
article 30, which in the case of reservation would be in addition to the existing reservations and
subject to a maximum of ten per cent of the total seats in each category.

In 1997 Vishakha vs. State of Rajasthan case, the apex court laid down the guidelines for protection of
women from sexual harassment at workplace.
The court said that such harassment of women at workplace leads to violation of Articles 14, 15, and 23.

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FUNDAMENTAL RIGHTS - ARTICLE 16
AND AFFIRMATIVE ACTION
Article 16: 0 00:00: 10
• Equality of opportunity in matters of public employment:
o (1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State
o (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or
any of them, be ineligible for, or discriminated against in respect or, any employment or office under
the State
o (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a
class or classes of employment or appointment to an office under the Government of, or any local or
other authority within, a State or Union territory, any requirement as to residence within that State
or Union territory prior to such employment or appointment
o (4) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is
not adequately represented in the services under the State
o (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of
an office in connection with the affairs of any religious or denominational institution or any member
of the governing body thereof shall be a person professing a particular religion or belonging to a
particular denomination
z • The article states that there shall be equality of opportunity for all citizens relating to public
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employment.
• Does the term employment refer to the process of initial recruitment only or also the whole tenure of
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> employment? The Apex Court has remarked that the term employment not only refers to the initial
employment but also whatever happens post-employment concerning the job.
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a:: • The second clause mentions certain categories under which discrimination is not allowed. But if there
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is a requirement of local residence, the state government cannot impose that, despite many chief
C ministers claiming the state government would impose such a thing. Such a thing can only be carried
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<( out by the parliament and only through law for that matter. An interesting fact is that the USA was the
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...J • There was a Public Employment Act enacted in 1957 which authorized domicile quota for certain
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categories of posts in the state of Andhra Pradesh and the erstwhile union territories of Himachal
<( Pradesh, Manipur, and Tripura, but this act expired in 197 4. Before the expiry of this act, through the
nd
32 Constitutional Amendment Act, Article 371D was added authorizing domicile qualification for
J: Andhra Pradesh and now Telangana. For other states, Parliament still has to enact a law to provide for
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domicile quota like the previously enacted 1957 act.
• The fourth clause talks about the provision of reservation to backward classes who have not been
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w adequately represented in the services.
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Reservation/Quota Debate: 0 00:07:42
z
::, • The term Affirmative action is a more refined term for reservation initially used in public by former US
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 President John F. Kennedy in 1961 in relation to equal opportunities between people of color and the
Whites. Affirmative action is thus followed even in the USA.
• Educational institutes like IITs, II Ms, and other governmental institutes have a preferred position in our
society. Similarly, this is the case in jobs like IAS, IPS, and similar nature of jobs.
• Thus, affirmative action is a set of anti-discriminatory measures that are provided to provide access
to preferred positions in society to those groups who would otherwise be excluded or may go
unrepresented. These preferred or elite positions were monopolized by the upper sections of the
society based on their gender, caste, class, etc. By providing affirmative action, the state is trying to
alter the social composition of elite positions. Without these affirmative action measures, the
representation of backward classes in these preferred positions would go unrepresented or excluded.
• To uplift the status of backward classes, two approaches were proposed. One was the Gandhian
Approach or the Spiritual Approach. Ashwini Deshpande in her book on affirmative action in India
uses the term Evangelical Approach. This approach basically revolved around the moral regeneration
of upper castes of Hindu society through philanthropic uplift of the backward sections.
• The second approach was advocated by Ambedkar namely the Objective Approach that was secular
in nature and not spiritual as invoked by Mahatma Gandhi. Ambedkar rejected the notion that there is
going to be a change of heart of the upper sections regarding the Dalits. He said we cannot wait for
many years for this moral regeneration to take place and thus we need objective measures like certain
provisions in the Constitution itself for the upliftment like the prevalent provisions for SCs and STs in z
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the Constitution itself.
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Note: The first person in India to provide such quotas was King Shahu IV, the ruler of the princely state of >
Kolhapur in 1902 who carried out the first organized step in the upliftment of Dalits.
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• The 193 1 Census carried out by the Census Commissioner J.H. Hutton was the first caste census u.
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ever done in India. There was a similar exercise done regarding the SECC, but it was an exercise 0
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carried out separate from the Census and its results have not been revealed yet. On the <(
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recommendations of J.H. Hutton, the first list of Scheduled Castes was published. He used many .-i
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criteria to classify these castes, but the primary criteria were namely the temple entry restrictions and ..J
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pollution by touch or proximity.
• The debate also revolved around that under which religion should the SCs be categorized. Since the <(
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discrimination was based on the Hindu system, a natural inclination would be to classify all as Hindus. V,
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But many of the SCs had converted to other religions too. So, the categorization that was initially :::c
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limited to Hinduism was soon extended to Buddhism and Sikhism too. But the categorization of STs
and OBCs is religion-neutral and can be categorized from any religion.
• But many of the SCs also converted to Islam and Christianity and did not get the benefit of the z
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affirmative action policies due to their non-inclusion in the SCs list. Thus, many commentators have �
claimed that such a policy is biased towards lndic religions. Thus, a petition challenging this anomaly is
z
pending in the Supreme Court. ::::)
u.
 • In 20 15, an interesting judgment was delivered by the Apex Court in the KP Manu judgment. The
court said that the benefits arising out of affirmative action for SCs would not be applicable for
members professing Islam and Christianity, but if the members converted back to either Hinduism,
Buddhism, or Sikhism, they can avail themselves of, the affirmative action benefits. Pratap Bhanu
Mehta, a commentator remarked the court is extending affirmative action benefits not on the basis of
deprivation status of a community but their conversion status.
• Secondly, the court also had said that the community needs to accept back the conversion. Mehta
remarked that the constitution provides freedom of religion to each individual citizen, then how can the
acceptance of a community be deemed a valid criterion for the acceptance or non-acceptance of faith
by a citizen, thus creating an entity similar to Khap Panchayat and was also promoting agendas like
Ghar-wapsi.
The problem also arose with regard to communities like OBC and their status with respect to affirmative
action.
• In the original constitution, the affirmative action benefits were availed only by the SCs and STs. But
later the OBCs were added to it. In 1979, the government-appointed Mandal Commission basically
tasked with the responsibility to come up with a formula or prescription as to what kind of affirmative
action benefits can be OBCs.
• The commission came with the figure that 52% of the population of India belonged to O BC, a figure
z that they derived by extrapolating the 193 1 Census. The commission recommended a reservation of
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27% quota for the OBC community in jobs and educational seats pertaining to Central Government.
• This recommendation was partially implemented by the V P Singh government in 1990, i.e. they
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> implemented the quota only in Central Government jobs and not in educational institutes. In 2006,
the same quota was extended to educational institutions
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Identification of SCs:
0 00:35:52
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<( Governments of every state and compiles them to create a single central list of SCs.
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u consultation with State Governments via the Governor notifies the list of SCs through a public
notification. Any subsequent modification to the list can be carried out only through the Parliament
<( through a law.
• Thus post the SC Constitutional Order of 1950 that specified the list of SCs, any further modification to
J: the list is carried out by the Parliament. This power of the Parliament is mentioned in the second clause
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of Article 34 1. It also further states that this modification of the list cannot be carried out through any
subsequent notification thus disallowing the executive from carrying out the action and vesting the
z
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Identification of STs: 0 00:40:06
z
::, • The procedure followed here is similar to the provision followed for the inclusion and further
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 modification that is carried out for the SCs as discussed previously.

Identification of OBCs and Role of NCBC: 0 00:4 1 : 1 5

• Until the 1 02 Amendment Act, for a very long time both the Centre and states identified OBCs in
their respective Central and State OBC lists. Similarly, the states also had a State Backward Classes
Commission to aid the States in this matter.
• In 1993, the Central Government set up National Commission for Backward Classes to aid the centre
in matters related to the Union list under the NCBC Act 1993.
• The composition of NCBC included the following members namely
o Chairperson who is or has been an SC/HC Judge
o A Social Scientist
o Two Persons with Special Knowledge concerning OBCs
o A member cum secretary who would be a government nominee
• It would entertain and dispose off requests concerning inclusion into the Central list and hence the
NCBC would advise the Central Government regarding this.
• This law also provided that every10 years the Central Government would conduct a review of the
Central OBC list with a view to exclude those castes that have ceased to be backward now and
include those that have been freshly identified as backward, for which the Central Government has
to consult NCBC. z
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• The law also says that the advice tendered by NCBC would be ordinarily binding on the government.
Any deviations from the advice tendered would invite an explanation. <(
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Article 3388 and NCBC 0 0 1:00: 13
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• A change came about through the 102nd Constitutional Amendment Act, 2018 through which NCBC 0::
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was given constitutional status under Article 3388. u.
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• Earlier NCBC could not entertain complaints regarding the deprivation of rights of already identified 0
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OBCs like NCSC and NCST, this anomaly was sought to be removed through this Amendment Act. <(
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• The Act has been framed on similar lines as that of NCSC (Article 338) and NCST (Article 338A). .-i
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Additionally, NCSC has also been given powers to look after the interests of the Anglo-Indian ...J
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community.
• The Act also added Article 342A giving the Commission similar powers concerning the identification <(
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of OBCs that the NCSC and NCST enjoy through Article 34 1 and Article 342 respectively. V,
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105th Constitutional Amendment Act, 2021 0 o 1:07:04
nd ...J
• In the Maratha Quota Judgement, the apex court remarked that by virtue of the 1 02 amendment that
the power to identify OBCs has been vested in the Union government only as in the case of SCs and z
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STs. �
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• Thus, the 105 Amendment Act was passed in 2021 to correct this anomaly that had crept in which
z
was not the intent of the Act. Article 342A and Article 338 8 were amended in this Act. ::::)
u.
 • In Article 342A a third clause was added saying that every state can prepare their own O BC list, as
the situation was before. Further, a clarification that the 102 nd Act meant only powers concerning the
Central OBC list was added too.
• A further amendment was made in Article 3388 where the existent provision was that each State
Government had to consult with NCBC before any modification to the State List, this was sought to be
amended in the 105th Amendment Act. Thus, a proviso was added that this provision shall not restrict
the State Government's power to identify their own state O BC list under Article 342A (3) .

Why d o we need a Reservation Policy? 0 01:11:21

This debate has generated more heat, less light. Thus, a debate is necessary.

Points in favor of Affirmative Action:

• Historical Injustice:
o The affirmative action policy benefits that accrue to the backward classes is a compensation for
millenniums of historical injustice like untouchability, economic deprivations.
o It is followed in the USA too due to the history of racial injustice. It is also followed in Australia for the
injustice meted out to Aboriginal Tribes.
• Division of Labourers, not Labour:
z o The work is assigned is based on the accident of birth and not merit. In the modern economy, the
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link between a person's caste and employment is considerably broken.
w o But this link is considerably broken is true for upper castes, the lower castes still face the historical
> linkage of occupation based on their caste with the Dalits, in particular, facing the brunt in manual
scavenging.
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a:: • Coinciding of Class and Caste distinction:
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o A person of lower class usually means a person is poverty-stricken. Similarly, a person from a lower
C caste faces social isolation.
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<( o These two identities coincide considerably in the weaker sections with the lower castes facing both
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.-4 poverty and social isolation. This is more likely to happen with Dalits where landlessness is more.
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...J • Untouchability:
u
o Untouchability in its original form as practiced in colonial India may not exist, but it doesn't imply
<( that untouchability has been eradicated. Its form has changed.
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o Examples include keeping separate utensils for domestic help, asking them to remove their
J: footwear outside the kitchen, difficulties in renting faced by Dalits, honor killings for pratiloma
(,!)
marriage, caste demands in newspaper matrimonial from urban areas too.
o Thus, the manifestation of untouchability in its earlier physical form may not exist, but its form has
z
w changed and still exists in its new form in society.
� • Labour- Market Dualism:

z o Ashwini Deshpande in her book 'Affirmative Action in India' talks about labour market dualism.
::, o It says that with all things being equal, labour market outcomes should be equal too. But this is not
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 prevalent according to her.
o An interesting study conducted by Thorat and Atwell in 2007, where they conducted a social
experiment where three applications with the identities of Hindu (Non-Dalit), Hindu (Dalit), and a
Muslim with same qualifications except the identity markers. Even when all things were equal, the
market outcomes were different.
• Bridging inequality:
o Thus, it is through these gentle pushes and nudges that the unequals become somewhat more
equal.
o The normal process of development doesn't bridge the gap between the dominant and weaker
groups as desired.
o Thus, the gap between equality in law and equality in fact is bridged by Affirmative Action
• Benefits Society:
o The policy of Affirmative Action should not be seen as catering to the interest of the individual
availing the benefit alone.
o It also has to be seen benefitting the interest of the entire society by promoting the interest of the
weakest in the society. It thus allows the full utilization of the talent pool in society.
0 01:39:45

Arguments against Reservation Policy & Debunking Associated Myths:

• Perpetuates injustice to tackle injustice: z
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o It is argued that affirmative action was promised to rectify the historical injustice against the weaker
sections. But this is akin to rectifying injustice by doing injustice. <(
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o But on deeper examination, this argument is specious because the notion that a person from a >
weaker section can compete equally with a person from the dominant section is not valid.
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• Generates Caste distinctions and generates hostility: 0::
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o The argument is that such a policy increases caste consciousness and distinctions and further u.
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increases the hostility among the various castes. 0
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such caste distinctions and hostility and affirmative policy has been created to counter and rectify .-i
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such distinctions. This is corrective justice, ...J
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• Compromises Merit:
o Merit is not something that an individual is born with. <(
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o Merit is inculcated in a person due to his own efforts and also due to his/her surroundings. The V,
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education he gets, the familial support, the lack or presence of discrimination, the quality of :::c
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schooling and post-schooling support, etc.
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o Thus, merit is not inherent but assisted. This inculcation of merit is deficient or absent in weaker
sections due to environmental factors and discrimination. z
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• Compromises Merit and hence productivity: �
o A study done by Deshpande and Weskopff in 2012, in Railways concerning the period from 1980-
z
2002. They measured the productivity of officials from the reserved category vs. the officials from ::::)
u.
 the open category.
o They found out that there was an inverse relationship between the presence of reserved officials
and the presence of accidents in the Railway zones. They found that Dalit officers were far more
efficient in managing Group D employees who had an overrepresentation of Dalits in their Group.
o In the US Army too, it was found out that the Black Officers are efficient in dealing with black
soldiers than the White Officers.
o The better performance of SC and ST Officers in the Railways was attributed to the greater drive
in officers to prove their persistent critics wrong regarding their work productivity and
competence. There are multiple studies demonstrating the same point.
• Cornering of benefits by Creamy Sections:
o It is also alleged that the creamy sections of the weaker sections corner all the benefits of affirmative
action.
o What is required is better targeting rather than abolition of the affirmative action itself. Moreover,
this issue of poor targeting is a symptom of all government schemes rather than affirmative action
policy only.
• Mismatch Hypothesis:
o This hypothesis states that a significant number of reserved candidates are unable to cope with
the rigors of the intensity of effort required to succeed and hence drop out or poorly perform.
z o This doesn't call for revocation of affirmative action, but for policies like extra classes, remedial
0
classes, psychological counseling by the government.
• Why Caste and not Class?
w
> o lt is based on the notion that a poor Brahmin and a poor Dalit face the same handicaps in the pursuit
of merit. This argument cannot be further away from the truth.
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addition to social isolation.Moreover, affirmative action is not a poverty alleviation remedy rather a
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 QU OTA PO LICY - CO NSTITUTI O NAL
- PROVISIO NS, I M PLI CATI ONS ETC.
Move Beyond Quota Policy: 0 00:00:58
Intellectuals like Satish Deshpande use the term Quota Plus policy to refer to going beyond the quota policy.

• Quota policy benefits urban backward and not the rural backwards:
o A vast majority of backward classes including the Dalits are in rural India who are not even
matriculate.
o Quota policy has primarily benefited the urban backward. Hence, providing quota in professional
engineering and medical colleges is meaningless as the majority of the backward classes are in rural
India who are not even matriculate. Hence the following can be done to assist the rural backward,
SC/ST, OBC etc.
► Land Reforms: As majority of the Dalits are landless laborers, it is a very important aspect of
socio economic advancement.
► Generation of non-farm employment
► Setting up of MSM Es (micro small and medium enterprises)
• Limits of quota policy are about to be reached:
o Court has set a 50% cap on quotas. In Tamil Nadu, quota has been given for 69%. Increasing the
quota percentage isn't useful anymore.
� • Government needs to handhold the beneficiary of quota policy:
(/)
z o Hand Holding and nurture the students who have received seats in colleges (Engineering. Medical,
0
MBA etc.) to ensure they reap maximum advantage of the seat awarded.
u • Involvement of private sectors/ Impose quotas in private sector:
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a.. o Diversity Index - diversity in terms of gender, community and caste.
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o Score companies on the basis of their diversity index. (For instance, 0 to 1)
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z ► 0-0.33 - low diversity
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in ► 0.33-0.66 - medium diversity
► 0.66 - 1 - High diversity
c::: o State and central governments could outsource their contract to companies, with diversity index
a..
as eligibility for bidding .
z o UPA government proposed a diversity index and then assigned scores to the companies and linked
0 the contract giving (outsourcing) on the basis of this.
j:::
::> • Move beyond quota policy:
1-
o The Constitution mandated quota policy (only for SC/ST) initially only for 10 years but this
z reservation was only for seats in the Lok Sabha. However, this has been amended with time and
0
u now stands at 80 years.
o The objective of providing quota policy and its implementation should be to uplift the backwards
:::i classes to a point that there is a level and fair ground.
0
a.. o Proposed solution to eventually dismantle quota policy - follow a top down approach, a phased
0 manner. The three levels of quotas can be abolished in a phased manner ensuring proper
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 ► Promotion quota (only SC/ST)
► Job quota
► Educational institutions

OBC Quota
0 00:19:35

• Article 340 provided for the setting up of a body to deal with the socially educationally backward
classes of citizens & to make reports to the Government of India from time to time.
• National Commission for Backward Classes which was set up in 1993 became a permanent body.
• Article 340:
o (1) The President may by order appoint a Commission consisting of such persons as he thinks fit to
investigate the conditions of socially and educationally backward classes within the territory of
India and the difficulties under which they labour and to make recommendations as to the steps
that should be taken by the Union or any State to remove such difficulties and to improve their
condition and as to the grants that should be made for the purpose by the Union or any State the
conditions subject to which such grants should be made, and the order appointing such
Commission shall define the procedure to be followed by the Commission
o (2) A Commission so appointed shall investigate the matters referred to them and present to the
President a report setting out the facts as found by them and making such recommendations as
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they think proper z
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o (3) The President shall cause a copy of the report so presented together with a memorandum
explaining the action taken thereon to be laid before each House of Parliament u
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• It directed that a commission to be appointed from time to time for monitoring backward classes. a.
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• First such commission was set up in 1953 - Kakasaheb Kelkar commission
v;­
• Second such commission set up 1979 - Mandal commission which recommended: z
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o 52% of population is OBC. in
o 27% quota to be given to OBC in government jobs (1990) and central education institutions (2006).
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Indra Sawhney Case, 1992 0 00:24: 10
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It was regarding the 27% quota given to OBC for government jobs. z
• Requirement of availing quota (Refer to Article 16, clause 4): 0
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o Backwardness: Community should be backward-socially and economically ::)

o Inadequate representation: Community should not be adequately represented in services under

state. z
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• Court mandated a 50% cap on the quota and could be breached in exceptional circumstances if u
need be. It has been breached by the court itself though:
o 15% - SC, 7.5% - ST, 27% - OBC, 4% - PDA, 10% - EWS, which adds to more than 50% :J
0
o The reason for giving the 50% cap was upholding the principle of equality of treatment. Articles 16 a.
(1), (2), (3), (4) have the norm as equality. It can deviate under clause 3 with respect to domicile 0
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qualification and clause 4 with respect to reservation of appointments or post for backward classes,
 which are exceptions.
o Norm - Exception framework Vs. Norm - clarification framework
► Norm - Exception framework is adopted by the court.
► Hence, a cap on 50% to be mandated, otherwise it won't be an exception anymore and it
becomes a norm. (If exception is more than norm then exception becomes norm and norm
becomes exception)
► However, intellectuals say that it should be based on a norm-clarification framework which
allows the quotas to go above 50% if it is for equality.
• Identification of backward classes would be subjected to judicial review.
o To avoid political parties from giving OBC status to certain communities for the sake of electoral
gains.
o Jat and Maratha quotas were nullified by the apex court.
• Identify creamy layers and exclude them from the benefits of quota to ensure the needy people are
targeted.
o In 1993, Ram Nandan committee was set up to identify creamy layer in OBCs. For government
positions, creamy layer includes:
► If one of the parents holds a constitutional post
► lf one of the parents is Group A - Direct recruit
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z ► Group B - father and mother both
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► Parents in armed forces - Colonel or equivalent.
u o For parents in non-government jobs, creamy layer is:
::::i
Q. ► Income limit of Rs. 8 lakhs (not including salary income + agricultural income)
► In 20 17, annual income limit was increased from 6 lakhs to more than 8 lakhs
vi
z ► There is further demand for increasing from SL to 12L or lSL
0
vi ► In 20 19, BP Sharma committee was set up, which said:
• Only 2% of Indian household have an income of more than 12L
Q. • Increasing the cap to 12L would cover 99% of OBCs

z • A certain proposal for identifying creamy layer for non-governmentjobs recommended that:
0 o As per study, income of a household increases by 60%, if the head of the family is a graduate and not
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1-
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► Only one member per family can avail benefit of quota
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Q. Note: Court states that annual income or economic background should not be the only parameter to
0 identify backward classes.
::::>
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• Recently the Haryana government declared that O BCs with annual income less than GL would be
considered for quota benefits. This population would be further categorized to 0-3L and 3L-6L with
preference being given to 0-3L households. The Supreme Court ordered against it, stating
classification cannot be made purely on the basis of income.

Targeting the quota policy 0 00:59: 17

• List revision - Identify new groups and remove the one's which have risen. This has not been done yet.
• Identification of creamy layer (As discussed above)
• Sub- classification like above mentioned Haryana government.
o According to central government, there are 2600 OBC castes out of which 50% of the castes avail
only 3% of quota benefits. This is highly asymmetric. Hence, sub classification needs to be done.
o Justice Rohini commission in 20 17 under article 340, defined sub classification of 27% OBC quota
under 4 groups of castes. (final report awaited)
► Group 1 - 2%, Group 2 - 6%, Group 3- 9%, Group 4 - 10% (Total 27%)

OBC quota sub-categorisation

■ Group 1 ■ Group 2 Group 3 ■ Group 4 ■ Outside OBC quota
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0 0 1 :04:56 z
• Article 16 (4) must always be read with article 335. 0
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o The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into �
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consideration, consistently with the maintenance of efficiency of administration, in the making of z
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appointments to services and posts in connection with the affairs of the Union or of a State. u
o Provided that nothing in this article shall prevent in making of any provision in favour of the t:J
members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in 0
any examination or lowering the standards of evaluation, for reservation in matters of promotion to a.
any class or classes of services or posts in connection with the affairs of the Union or of a State. 0
(Added by the 82 nd Constitution Amendment Act) ::::,
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 • In the Indra Sawhney judgment, the court stated that, there would be no quotas in promotion.
o The court argued that the Constitution says by giving quotas we equalize opportunity. But by
extending to promotions we are trying to equalize outcomes as opposed to opportunities.
• In 20 12, total number of secretary positions in government of India was 1 02. Out of 1 02, SCs were 0,
STs were 2 and OBCs were 0. For additional secretary positions out of 1 1 3, SCs were 5, STs were 1 and
OBCs were 0.
• Thus it can be seen that despite giving quotas initially, many don't reach higher ranks due to a concept
called glass ceiling.
• Glass ceiling: Generally observed in corporations (pvt sector) with respect to women due to patriarchy,
where they are restricted from reaching the top positions.
• Thus, there was need for quota in promotions and article 16 was amended, by adding clause 4A,
th
giving provisions for promotion of SC, ST but not any backward classes. (77 Constitution
Amendment Act, 1995)
o Article 16(4A): Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion to any class or classes of posts in the services under the State in
favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.".
• Later the 85th Constitution Amendment Act added the word 'consequential seniority' to Article
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from general category, the SC/ST person he would gain seniority. But when the person from general
u category gets promoted, he would regain his seniority over the earlier promoted person from SC/ST
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Q. community. This regaining of seniority by person from general category is called the 'Catch-up Rule'.
• The Indra Sawhney judgment also said that unfilled vacancies cannot be carry forward beyond 3
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By the 81 Constitution Amendment Act, Clause 48 was added to Article 1 6 to get around this.
o Article 16 (48) : Nothing in this article shall prevent the State from considering any unfilled
Q. vacancies of a year which are reserved for being filled up in that year in accordance with any
provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to
z be filled up in any succeeding year or years and such class of vacancies shall not be considered
0 together with the vacancies of the year in which they are being filled up for determining the
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� 0 1:24:40
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down following requirements for availing quotas in promotion:
::::i o Backwardness has to be demonstrated by quantifiable data to ensure they are still backward for
0
Q. availing benefits. (similar to creamy layer filter in OBC)

0 o Article 1 6 (4A) should be read with Article 335.

::::> o Community should not be adequately represented at or in higher echelons.
0-
Note: UP Power Corporation Ltd, 2012-Supreme Court struck down the quota in promotions given by
UP government since they were violating the criteria laid down in the Nagraj judgment.

• The 117th Constitution Amendment Bill, 2012 was introduced to get around this judgment but could
not be passed.

Jarnail Singh case, 2018

• The apex court decided that there is no need for quantifiable data but norms are required to identify
creamy layer amongst SC/ST.
• On the whole, it upheld the Nagraj judgment.

OBC:
0 0 1:39: 10
• Jati-Varna link is more clearly established at the extremes, that is for Brahmins and SC but it is loosely
established in the middle for Kshatriyas, Vaishyas and Shudras.
• Jati-Varna link being fluid in the middle, the government gives quota to certain sections of the
community demanding for it. For e.g. Jaats and Marathas were given status of OBC but the apex court
rejected it. However, OBC are said to be the lower strata of Shudras but Marathas come under
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Kshatriyas. Despite this Marathas were given the status of OBC. z
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• Jats in Haryana, Patidars in Gujarat and Marathas in Maharashtra are socially forward but
economically backward. These are also called as dominant castes. u
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• Dominant castes are those which are demographically significant and own land. a..
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• Land has become fragmented and agriculture is becoming non-remunerative. Despite being socially
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forward due to lack of skills they are economically backward. z
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• There are dalit middle class which are socially backward but economically forward due to en
government provisions. �
• Hence, there is rise in demand for quotas from dominant castes like Jats, Patidars, Marathas, etc. �
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 RESERVATION DEBATE AN D
ARTI CLE 17
• There is much discretion available to the centre and states in labeling specific communities as OBC and
extending quota benefits to them. The jati-varna link is clearly established at the top and bottom but
less so for the middle castes.
• In 2 0 1 4, on the eve of Lok Sabha elections, UPA governement decided to confer OBC quota on the Jats
with an eye on the elections to create a momentum in order to create a vote bank.
• It was rejected by the Supreme Court in 20 1 5 in Ram Singh judgement.

Ram Singh Judgement:

SC observed the following concerns:

• Historic injustice cannot be the only basis for claiming reservation. There were two disturbing things
observed. The fundamental nature of affirmative action extended to SC and ST is based on historic
injustice only. The narrative of historic victimhood based on injustice shouldn't be applicable to OBC as
it has been a narrative that belongs to SC and ST.
• Social groups who are deserving of quota benefits or affirmative action benefits should be a matter of
continuous evolution, as seen in the Transgenders case where they were placed under OBCs for
affirmative action.
o Vertical Discrimination: Discrimination of the lower rung of society by members of the upper
castes. SC, ST and OBCs occupy the last layer of stratification of social hierarchy. Many jurists say
that the framework to tackle vertical discrimination in the constitution is seen in Article 1 5 (4) and
Article 1 6 (4). Basically it relates to the quotas in education and jobs.
o Horizontal Discrimination: Discrimination against communities those are present in all larger
communities.eg women, poor people, transgenders. They are found everywhere and subjected to
discrimination everywhere. Article 1 5 ( 1) and 1 6 ( 1) provide framework for horizontal reservation.
Ending discrimination is not similar to providing quotas and hence such discrimination has to be
tackled like all other discrimination is tackled, namely by attitude change, infrastructure change etc.
• Self-perception cannot be the basis of quota, and that quantifiable data would be needed to

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determine backwardness.
• Whenever a community is categorized as backward, the data collected regarding the backwardness
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u needs to be contemporary. The court hasn't defined what means contemporary data.
• The courts while reversing the conferment of backwardness status has termed the government's
<( decision as not objective and being influenced with the elections in mind.
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z Thus a need for caste census arises to avoid these situations.
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Maratha Quota Judgement:
0 00:28:58

aJ • Quota was announced by Maharashtra government in 20 1 4, namely 16% for Marathas and 5% for
w
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z religion)
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• Quota in jobs can be done based on executive order but for educational institutions, a law is required.
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� Hence theMaharashtra government extending the quota via executive action was unconstitutional.
w • Thus SEBC Act was passed in 2 0 1 8 to give this to effect, this was challenged, and hence Bombay HC
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 in 20 19, broadly upheld and accepted but reduced the percentage i.e. 13% in jobs and 12% in
education. But Supreme Court has struck down the quota as unconstitutional.

EWS Case: 0 00:3 5:40

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• Since 103 Constitution Amendment Act, 20 19, clauses 15(6) and 16 (6) were added and EWS
reservation has been given.
• Issues in extending quotas to EWS category:
o It goes beyond 50% limit.
o Court has said that if represented in quota two tests have to be fulfilled, namely:
► Backwardness and;
► Inadequate representation.
► It has been estimated that the general category does not exceed even 20% of the total
population and they are over represented in the higher echelons of administration. Thus the logic
of inadequate representation is not fulfilled.
o They are horizontally discriminated but benefits pertaining to vertical discrimination are provided to
them under EWS quota.
o Extending quotas purely on the basis of economic criterion. However, the Supreme Court in its
various j udgments has opined that creamy layer cannot be solely on the basis of economic criteria.

Rules for EWS Case: 0 00:41:52

Following would be excluded from the EWS category as per Central Rules:
• Annual income exceeding 8 lakhs (includes income from all sources like salary and agriculture),
• Owning agriculture land of 5 acre or more,
• Residential flat of 1000 sq. yards or above,
• Residential plot of 100 sq. yard in a notified municipality, 200 sq. yards and above in non-notified
municipality area.
These are criterion given by union, and states are free to give their own criterion.

Has the quota policy been really beneficial? "

.-1
• According to experts, the quota policy is benefitting over 80% of the total population in India. w
• How can a policy that benefits 80% of the country's population be a wrong policy? ...I
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• It is because of quotas that we find the education gaps between the SC/STs and the general population
have been significantly narrowing. <(
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• It is also because of this quota policy that in the recent past, we have seen the rise of a unique Dalit z
Middle class. <(
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Is there a Right to Reservation? 0 00:48: 13 al

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• In the Mukesh Kumar Judgement, Supreme Court said that there is no right to reservation. Q

• Article 16(4) and 16(4A) are enabling provisions, but there is no fundamental right to quotas.
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• But Art 14 which is a fundamental right implies equality before laws and equal protection of laws. �
Equal protection of laws implies that unequals too cannot be treated as equals. �
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• If the whole quota system was to be scrapped tomorrow, all SC, ST and other communities would be l/)
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 treated equally, but their conditions would still not be equal, and hence here the unequals would be
treated equally.
• In this sense, fundamental right to quotas exists, as equal protection of laws is also a fundamental right
under Article 14. Article 46 also says that state shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes
and the Scheduled Tribes
0 00:55:12
Case for Caste Census:
• Till 193 1 caste census was being done, 1951 census onwards till 20 11, caste census is not being
done.
• While SCs and STs are being enumerated, there was no enumeration of OBCs.
• It is being said that OBCs constitute nearly 51 % of population while being awarded only 27% quota
and hence their representation is less and hence courts should revise the 50% cap.
• The government conducted a Socio- Economic Caste Census (SECC) in 20 11, but the data has not
been released on claims of inadequacies and imperfections.
• Unless a precise knowledge of the level on deprivation is known, any effort for targeted benefits is not
feasible. Hence, there is need for another SECC.
• Benefits of SECC:
o Targeted interventions
o Help in revision of lists
o Take decisions based on accurate information
o Justice Rohini commission also talked about sub-categorization, where information of SECC would
form the basis.

National Eligibility cum Entrance Test (N EET):

• It is a common test for all central and state medical institutions for undergraduate as well as post
graduate courses.
• State governments are entitled to reserve seats for their own domiciled candidates.
,-... • In 1986, Supreme Court directed that a state cannot reserve all the seats in a local college based on
.... domicile only, and allow some seats for all India quota.
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u • For those seats which the states surrender for all India quota, there was reservation for SC/ST quotas
but there was no provision for OBC quota.
<( • Since January 2022, it has been extended now both to SC/ST and OBCs, as well to EWS.
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• In Andhra Pradesh since the year 2000, there has been a government order which stated that in the
aJ scheduled areas that have been inhabited by scheduled tribes, all seats for teachers in primary schools
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C in these areas would be reserved for teachers from ST communities.
z • The apex court struck down the order citing it is as violation of the 50% cap and as it was restricted to
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� STs only, it deprived other communities like SCs, OBCs, etc.
�
w Clause 5 of Article 16:
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• N oth i n g i n this a rticle s h a l l affect the operation of a ny law which p rovides that the incum bent of a n
office i n con nection with t h e affa i rs o f a ny rel i g ious or denominatio n a l institution or a ny mem ber o f the
govern i n g body thereof s h a l l be a person p rofessing a pa rticu l a r religion or belon g i n g to a pa rticu l a r
denomination
• That means, the person a ppoi nted to a statutory board concern i n g tem p l e a d m i n i stration ca n be
based on religious d iscri m i n ation i.e. persons belonging to a rel igious boa rd set u p to manage the
property of a pa rticu l a r religious institution belong to the specific religion on ly. For e.g. M u s l i m s
m a n a g i n g t h e affa i rs o f a M us l i m religious institution, H i ndus m a n a g i n g t h e affa i rs o f a H i n d u religious
institution, etc.

Article 17: 0 0 1:20:00

• It a bol ishes the p ractice of u ntouch a b i l ity.
• It is made p u n ishable by law, hence it is non-self- executory,
• Untouchability Offences Act, 1955 was replaced by Protection of Civil Rights Act.
• H owever problem with both Article 1 7 a n d Protection of Civi l Rig hts Act is that they don't defi ne
u ntouch a b i l ity,
• I n laym a n terms, untouchability is a practice in which certain depressed classes are looked down
upon based solely on their birth.
• U nder the Protection of Civi l Rig hts Act, a n offence of u ntouch a b i l ity is:
o Preach ing u ntouch a b i l ity.
o I ns u lti ng a member of SC com m u n ity on g rou nds of u ntouch a b i l ity.
o J ustifyi ng u ntouch a b i l ity based on historica l , religious a n d p h i losophical g rounds.
o Denyi ng a d m ission to a ny place of public resort e.g. wors h i p, hospita l , cremation g rounds, water
resources, resta u ra nts, enterta i n ment, etc.
• If convicted of offence u nder this law, then:
o Jail term plus fi ne.
o Disq u a l ification u nder Representation of Peoples' Act, 1 9 5 1 contesti ng for elections at u n ion and
state level for the d u ration of sentence and fu rther for 6 yea rs after release.
• Offence com m itted under this act is a cognizable offence (a rrest without warra nt) and non­
compoundable (not resorted to com p rom ise) .
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• The cou rt has the l i berty to operate on p resum ption of g u i lt i.e. the case is u nderta ken on p resu m ption u
of g u i lt a n d not p resum ption of i n n ocence. The cou rt will ass u m e that the person is g u i lty a n d the
accused has to prove that he/she is not g u i lty. <(
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Note: I n 20 1 1 - 1 2 , National Council for Applied Economics Research (NCAER) conducted I H DS-2. <(
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(Indian Human Development Survey) The resu lts of su rvey were p u b l ished i n 20 14,
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• 27% respondent agreed to practicing some form of u ntouch a b i l ity across a l l relig ions. Q
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o J a i ns - 3 5% 0
o H i nd us-30% �
o S i khs-23% �
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 o Christians-5%
o Brahmins- 52%
• State wise, in Madhya Pradesh 53% and in West Bengal 1 %, admitted to practicing some forms of
untouchability.

Performance of Prevention of Atrocities against SC/ST Act, 1989:

• Parliament committee reported that in last two years, there has been 1 5% rise in crimes against SC/ST
women and SC/ST children.
rd
• However issues with this law exist, like only around 1/3 cases are registered, conviction rate is 25-
26%, lack of awareness of rights, time and financial constraints to fight in the court of law, recent
instances of false cases.
• With respect to the false cases, in 20 18, Subhash Mahajan case, the apex court ruled that whenever
there is a complaint, the police would do a preliminary inquiry before an FIR is registered and arrest
will only take place with the permission of a senior SP level officer.
• In response to uproar, parliament added section 18A to the Prevention of Atrocities against SC/ST
Act, 1989.
• The court did not strike down the added section and recalled its earlier order in the Subhash Mahajan
case as well.

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 � FUNDAMENTAL RIGHTS - ARTICLE
c.1:.J 18 AND ARTICLE 19 (PART- 1)
Article 18:
• Abolition of titles:
o No title, not being a military or academic distinction, shall be conferred by the State
o No citizen of India shall accept any title from any foreign State
o No person who is not a citizen of India shall, while he holds any office of profit or trust under the
State, accept without the consent of the President any title from any foreign State
o No person holding any office of profit or trust under the State shall, without the consent of the
President, accept any present, emolument, or office of any kind from or under any foreign State
Right to Freedom
• The eagerness of the Constituent Assembly in adding this article can be traced to British practice of
conferring titles. E.g. Knighthood, Rai Bahadur etc.
• Since the government represents society in concrete form, it was as if like the society was conferring
these titles, hence this tended to create feelings of inequality, inferiority, leading to further stratification
in a highly stratified society.
• So there was eagerness to abolish such a practice.
• This British practice of conferring titles was also given with an expectation of a quid pro quo where the
holders were expected to be loyal.
• Titles of military or academic distinction are exempt from this, example being Professor, PVC etc. This
barring of conferment is limited to state and hence any private entity is free to confer the title. No Indian
citizen can receive title from any foreign state and if accepted, the Indian citizenship has to be
li: surrendered.
g_ • Any foreign national in service of the government, he is not allowed to accept a title except with the
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permission of President.
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� or office of any kind from a foreign state.
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In 1954, government created four categories of decorations:
• Bharat Ratna, public service of highest order (PM recommends this to the President, not more than 3
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names per year)
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• Padma Bhushan, for distinguished service of higher order
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(!) • Padma Shri, for distinguished service in any field

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For the Padma awards, the Prime Minister constitutes the Padma awards committee headed by the Cabinet
secretary, including the Home secretary, Secretary of President and 4-6 eminent persons.
z There is absolute discretion of government to award these titles.
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Issues associated with Article 18: 0 00:17:02
• Titles: The opponents of this said that they are like titles only, example of Bharat Ratna being placed at
th
9 place (7A) in table of precedence and hence the logic of abolition of titles to abolish stratification
stands negated.
• It has been seen that they have been used as titles. In any such violation that these decorations can be
forfeited.
o In the Balaji case 1996, Supreme Court held that these are not titles and merely decorations, the
1 977 Janta government stopped these awards, but the later congress government restored it.
• There is abuse of decorations especially of the Bharat Ratna. It has been conferred by the ruling party
to some past personality whose ideology or perspective and vision are very much aligned with the
present day ideology of the ruling government. It is further used as a tool to enhance the party's
political appeal.
• There is also the issue of self-conferment and awarding for political issues. Eg. Pandit Nehru and
Indira Gandhi awarded themselves with the Bharat Ratna in 1 9 5 5 and 1971, respectively.
• It has also seen perversion of seniorities. For e.g. While leaders like GB Pant and Indira Gandhi were
awarded in 1 9 57 and 1971, respectively, other senior leaders like Maulana Azad, Dr. Ambedkar,
Sardar Patel were awarded the Bharat much later in the 1990s.
• In case of Padma awards, sometimes the conferment depends on the alignment of overall ideology of
the person eligible for the award and the ideology of the ruling party. Hence it has also been politicized.
• Ideally, there should be a Padma awards committee consisting of eminent persons from outside the
government, which should make recommendations to the government. When the government rejects
the recommendations of the committee, it should give cogent reasons for refusal.
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conferring it on past personalities and constituting a broad based committee of persons from outside the ....w
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Article 19 - (Right to Freedom) 0 00:38:20 <(
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o (a) to freedom of speech and expression; ....I

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o (b) to assemble peaceably and without arms;
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o (d) to move freely throughout the territory of India;

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(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the
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 security of the State, friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence
• (3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and
integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the
said sub clause
• (4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and
integrity of India or public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub clause
• (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the
exercise of any of the rights conferred by the said sub clauses either in the interests of the general
public or for the protection of the interests of any Scheduled Tribe
• (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular,
nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,
o (i) the professional or technical qualifications necessary for practising any profession or carrying on
any occupation, trade or business, or
li: o (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade,
g_ business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
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• All liberties are provided in clause 1-a, b, c, d, e, f (removed), and g.
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Restrictions on 19(1) (a) are mentioned in 19(2), similarly restrictions on 19(1) (b) are mentioned in 19(3), and
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• Article 19(1) (a)
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straightforward, the term expression can be construed in various ways due to our human nature­
z art, cartoon, body language, poetry, films, social media, TV, written work, other ways in which
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humans relate to the world basically.
• Inferred rights-some rights can be inferred because some rights are codified in the constitution-e.g.
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right to silence from right to express.
 o Freedom to express other person's views is based on freedom of expression and thus freedom of
press.
o Right to expression implies that right to information because unless a person has correct
information, he can't express properly.
o Right to privacy from freedom of expression to avoid chilling effect that would prevent expression­
liberal interpretation of rights
• There are exhaustive instructions listed in the second part concerning freedom of speech and
expression concerning restrictions.
• The restrictions have to be reasonable and through law.

Article 19(2)-restrictions for 19(1) (a) :

• Restrictions like friendly relations with foreign states, public order and incitement of offence added
through first amendment, sovereignty and integrity of India by sixteenth amendment, decency or
morality or in relation to contempt of court, defamation.
• Defamation: � 01:01:40
o Saying or writing something that harms the reputation of others. It is termed slander when done
verbally and libel when done in a written form.
o Should defamation be civil or criminal offense?
o In India it is both civil and criminal offence, but world over the trend is to reduce it to a civil offense.
Offenses like murder which are prosecuted by the state are not just an offense against the family
affected but the whole society itself. Thus the state which represents society has to get involved.
o Sec 499 of IPC talks about defamation and sec 500 talks about the punishment.
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wrong in mature western democracies. Thus treating it as a criminal offense is providing a public ....I
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remedy for a private wrong.
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social media non geography leads to cases being filed in multiple parts across the country. ....I
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o It is used as harassment of social activists and opposition political leaders.
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o Sec 499 also lists acts that would not amount to defamation. For e.g. imputations made on good <(

faith would not lead to defamation, comment made on public performance of public servant,
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imputation of truth that serve public purpose. l!)

o It has been found that magistrates are mechanically applying the sec 499 without looking at the ....I
exceptions. z
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o It is the exclusive preserve of elites with the common man unable to go through the hassles to
either defend or go to court to frame charges.
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• Subramanian Swamy case, 2016: criminal defamation was challenged ::::)
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 o Government of India defended criminal defamation by saying that poor people don't have the
financial capacity to pay damages, hence cannot pay damages. Hence it needs to remain a criminal
offence. But the same is not applied to other offence like traffic fines, not getting tickets, which are
civil offences.
o Second argument was it was the government's duty to protect the reputation of citizens.
o Eventually, the court missed the opportunity and criminal defamation was upheld citing right to
reputation as part of right to life.
o The court also opined that the dignity and fraternity commitment in preamble would be harmed if
baseless allegations are made and a person may be alienated from the community.

• Contempt of Court: 0 01:33:27

o Contempt of Court Act, 1971 defined contempt, but the contempt powers of the court are
mentioned in the constitution itself (Article 129).
o The act describes two types of contempt-civil and criminal.
► Civil: Breach of order of court or breach of undertaking given to court.
► Criminal: Anything that has the effect of scandalizing the court or has the tendency to do so,
anything that interferes in the proceeding of the courts, or actions that obstructs the
administration of justice.
o Why these powers given?
► There might be instances where the ruling is unpopular, thus harming the independence of
judiciary, and thus shields from malicious campaigns.
li: ► If there is no independence of judiciary, public interest would be hurt
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► Nemo Judex in causa sua i.e. No person can be a judge in his own case.
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► While the Supreme Court has said that the shoulders of the Supreme Court are broad and can
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► So when fair criticism trespasses into the territory of scandalizing the court, there is no
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(!) yardstick for evaluation. It depends on subjective assessment of application of justice and
hence variability of justice which is violation of right to equality.
z ► Equality of treatment in court forums is also a part of equality before law and it may even stifle
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genuine criticism and prevent the growth of the institution.
o Actual intent is ignored:
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► In such cases, the courts also do not consider Mens Rea (actual intent) even if there was no
 intention to scandalize the judiciary; the court operates on what was the effect of the criticism.
o It leads to judiciary being considered infallible:
► It assumes that judiciary it can never be wrong
► Judiciary is also composed of humans who are susceptible to human failings and hence any
just criticism of the judge shouldn't be misconstrued as criticism of the judiciary and contempt of
court is not equal to contempt of judge.
► When the attack on a judge becomes an attack on the court, the line distinguishing between the
two is blurred.
► In UK, scandalizing the court has been removed as a ground for contempt, and in US, after many
judgements, a diluted version of contempt powers is used.

Note:
In the UK in 1987, Lord Templeton did not initiate contempt proceedings against a newspaper which
called the Lords as 'Old fools'. Lord Templeton said, " I cannot deny that I am old; it's the truth. Whether I
am a fool or not is a matter of perception of someone else ... there is no need to invoke the powers of
contempt."

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 � FUNDAMENTAL RIGHTS
� ARTICLE 19 (PART-2)
Mulgaonkar Guidelines:
• In Mulgaonkar guideline(1978) , guidelines were laid for judges to exercise contempt powers:
o Economic Use of contempt powers is desirable
o Harmonization between free criticism and judicial independence.
o Press should be given free play within reasonable limits
o Judges shouldn't be hypersensitive
o Distinction between contempt of court and that of judges.
• The Supreme Court has expressed in various judgements that the path of justice is not strewn or
littered with roses and hence justice should be allowed to suffer the scrutiny and even the
outspoken comments of the common man.
• In 2006, there was an amendment to Contempt of Courts Act, 1971, (CoCA) which provided for truth
as a valid defense in contempt of court. If there are allegations of corruption against the judge applied
and if those turn out to be true, the contempt should not be proceeded with.
• The courts have suomoto powers to undertake contempt proceedings.
• If a private citizen takes a petition to the SC regarding Contempt of Court, he has to take the permission
of the Attorney General at the central level and Advocate General at state level. This provision is there
to protect the time of the courts and prevent it from undertaking frivolous litigations.
• Even if there is refusal of consent, the citizen can still go to the court, since the permission of the
Attorney General is mentioned in the CoCA, 1971 but the contempt powers are derived from the
constitution itself by the courts.

Banning of books: 0 00:12:50

• Under section 95 of CrPC (1973) , the government can declare certain publications to be forfeited and
hence they cannot be published, distributed or sold. This can only be done if the book contains material
violative of certain sections in the IPC:
o Sec 153A-promoting enmity between groups)
o Sec 1538-having adverse effect on national unity and integrity
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o Sec 292-if it contains obscene material
o Sec 295A-religious sentiments hurt
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Sec 124 A: Sedition

• It was not present in original IPC, but added 10 years later.
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(!) • Whosoever by written word or through any other ways of expression brings or attempts to bring into
hatred or contempt or excites disaffection against the government amounts to sedition.
• The punishment is 3 years or lifetime imprisonment.
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them.
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• Problems:
 o Politically motivated: Very vague law and used to silence dissent, hence the application of this
section has become increasingly politically motivated.
o Relics of monarchies: It is based on medieval ideals where the kings assumed entitlement to love
and affection of his subjects.
o Infantile nativism: A.G. Noorani said that this section was introduced with racist undertones, while
the same speech wasn't considered seditious in England, but for the natives such speech was
unsafe thus showcased infantile nativism, a trait of white man's burden.
• Kedarnath Case 1962:
o The apex court did not strike the section down, but read it down.
o Discussion and advocacy of any kind is fine but using this to create incitement to incite people to
resort to violence, there you go beyond the right to freedom and expression.
o Hence court said in the case that this section should not be applied until there is an incitement to rise
against the state violently.
• Last few years, only 3 percent cases are convicted.
• There are other laws like NSA, UAPA and previous acts like TADA, POTA which deal with these acts.
The government directly under section 95 bans the books which they feel hurt their vote banks; they do
not go to the court with evidence and allow the courts to do this.
• Hence, the author or publishers have to go to the courts to prove otherwise and hence it is a discomfort
for freedom of expression.
• A book is the author's feelings and may not coincide with the society's viewpoints. If any view
contrarian to the society is banned, how will further social progress based on challenging norms be
achieved.

Restrictions based on Decency and Morality: 0 00:47:48

Freedom of expression can also be restricted based on decency and morality. For e.g. MF Hussain's paintings
have been subjected to challenge due to vulgar expressions.
• Pornography:
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• Sections against pornography:
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o IPC sec 293-selling such books to individuals under the age of 20 years. ....I
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o IPC sec 294-obscene acts or singing obscene songs in public or public place
o Indecent representation of Women(Prohibition) Act, 1986 <(

o IT Act, section 67 - illegal to publish, transmit obscene material in electronic form

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o Child Pornography- Protection of Children from Sexual Offences Act, 2012 - illegal in every form, (.!)

even possession is illegal.

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 open to such influences regardless of artistic worth.
• Miller test: society's view of obscenity evolve with time i.e. an average person using contemporary
community standards finds the content obscene. The standards are of present day. Secondly, if an
average person feels that it depicts sexual content in a patently offensive manner. Thirdly, if an average
person feels that the work has no artistic, literary, scientific or political value
• The Miller test is more contemporary, while the Hicklin test is older test.

Films: 0 01:02:58
• When it comes to films, there is a law called The Cinematograph Act, 1952.
• Any film to be publicly screened in India needs to get a certificate from Central Board for Film
Certification (CBFC) and also the suitability of the age group the film is screened for i.e. U,U/A,A,S.
o U-unrestricted
o U/A - children upto 12 years can watch it but with a parent or accompanying adult.
o A - Adult i.e. 18+ years of age
o S - Footage or documentary meant for specialized professional groups like medical footage, etc.
• Since the CBFC stresses on cuts in the film before it is screened to get a particular rating, it has also
been called by some as the censor board.
• The section SB in the 1952 Act, says that the CBFC will deny a certificate to a film if it goes against
the restrictions listed in Article 19(2) .
• If the producer is unhappy with the decision, there was a provision for Film Certification Appellate
Tribunal (FCAT) where appeals could be made, but it has been stopped now due to an ordinance.

Issues with functioning of CBFC:

• Poor Finances
• Corruption to receive certificates
• Poor quality of adjudication regarding certification, concerns about personnel to preserve artistic
freedom
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• Political interference under sec 6 ( 1): where revisory powers are given to government over CBFC
certification and the government can overrule the decision of CBFC.
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...J o KM Shankarappa case , 2000 struck it down later because that practically amounts to government
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taking over the function of CBFC.

Disbanding of FCAT:
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while the high courts are already burdened with cases and don't have the expertise as contrasted with
z FCAT.
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be huge and cripple film making.
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Committees concerning CBFC: 0 01:19:40
• Justice Mudgal Committee, 2013:
o The ambit of the committee was the whole functioning of CBFC.
o It said that the Cinematograph Act was archaic law which has to be replaced and hence it drafted a
Model Cinematograph Bill.
o It also gave proper norms for selecting the right people for membership on the board.
o It recommended that CBFC should move from a censoring body to a certifying body as it also goes
against the contemporary notions of morality, where some people become arbiters of morality of
the society and others are treated as infantile.
• Shyam Senegal Committee,2016:
o It also recommended to move it from a censor body to a certifying body
o Not every movie certified for adult could be suitable for all adults and hence has to be classified
further as - U, UA12+, UA15+, A, and adult with caution-A(C).

Draft Bill, 2021: 0 01:29:00

• In 202 1 a draft bill was proposed to bring about changes in the cinematograph act. It contained
provisions to tackle film piracy, etc.
• Earlier the certificate was issued for a period of 10 years according to law, but several executive
orders kept the certificate valid for perpetuity, but now the draft proposed to introduce the same in the
law itself thus replacing the 10 year period with perpetuity.
• It also had further categorization of certifications-U, U/A7+, UA13+, UA16+, A, S.
• The proposed draft tried to bring revisionary power through the backdoor that was struck down in
Shankarappa case. If the government receives complaint with respect to section 58, it can direct the
chairperson to reexamine the certificate.
• The film producers and directors can hence be held hostage by Heckler's veto where a small group of
hecklers offended by the film go to the government and government tries to appease these sections by
putting restrictions on the film.
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o Moreover, if the government feels that with the screening of the film, there would be disturbance of ten
law and order, then the government at the centre or the state level can put a ban on the film. ....
• In this context, the courts have been supportive of the film fraternity. w
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• For e.g. in the case concerning Ore Oru Gramathile, 1989, the film was certified and the court said that
a small group of people threatening to do violence cannot be a justification for suspension of freedom <(

and expression, because the certification already takes into account restrictions in article 19(2).
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• It said that it was the duty of the government to prevent that from happening and preserve law and (.!)

order, as it is the duty of the state to preserve freedom of speech and expression. ....I

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 Section 66(A) of IT act: 0 01:42:05
• Sec 66 (A) of IT act was struck down in Shreya Singhal case and still people are being arrested under
the section. It dealt with online speech.
• The audio-visual medium has more impact than the print or audio medium. Plus the audio video
content can be taken out of context more easily; it has outreach that is greater, immediate and
visceral effect.
• Sec 66 (A) termed information that is grossly offensive, tendency to create public menace, false
information causing inconvenience/annoyance, information causing insult injury and hatred or ill will,
will be treated as an offence.
• Hence the court struck it down saying it is unconstitutionally vague, it has a chilling effect on Freedom
of Speech and Expression, plus these are grounds not mentioned in 19(2).
• The court said that discussion, advocacy and incitement are different things, discussion and
advocacy howsoever annoying, passes muster i.e. is allowed, so long as it is not used to incite people.
The Sec 66 (A) failed to appreciate this distinction.
• Court said that hate speech is not included under Freedom of speech and expression but what
constitutes hate speech is a question to ponder and hate speech should necessarily lead to
incitement to be termed as hate speech. It should become an incitement to violence and lead to clear
and present danger.

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 � FUNDAMENTAL RIGHTS
� - ARTICLE 19 (PART-3)
Significance of Freedom of Speech and Expression (FoSE) : 0 00:01:00
• It has inherent value:
o FoSE is significant because it has an inherent value; it is a critical faculty/trait unique to human
bei ngs, i magi native com mun ication, visual com mun ication etc. and sets humankind apart from all
living beings. Thus, it is an expression of human nature.
• It is the cornerstone of a democracy:
o It helps in achieving democratic accountability through free media, criticism. Yet, it is not absolute
but society must learn to tolerate unpopular views, e.g. Galileo, Socrates, etc.
• Enables community life:
o No notion of community or collective life is possible without FOS E. Minority community will not feel
a sense of belonging and feel alienated if their views are not listened to and hence a collective life is
only possible if everyone feels that their view holds the same value as the other.
• Enables progressive change:
o There can be no progressive change without FoS E. Any critical commentary about prevalent norms
is not possible if FoSE is restricted, e.g. voting rights for women, improvement in condition of
workers, voting rights for African-Americans, etc. nothing would have been possible without free
expression.
o It also helps i n aid i ng i m p rovement of governance through free flow of ideas and criticism.
• Promotes innovation:
o It also promotes innovation through free contestation of ideas/free trade of ideas. Variety of ideas
gets confronted in the marketplace of ideas and the best idea takes its place in society and leads to
innovation. Ultimately greater good is served better through a free trade of ideas. Further
contestation also leads to refinement of ideas.

Note:
• When it comes to FoSE, it is better to err on the side of freedom. While FOS E is not absolute and
some reasonable restrictions need to be imposed so that this right doesn't become a tool in the hand
of mischievous people to create mischief and thus violate other person's rights and harm the
interests collectively of the society.
� • But any such restrictions must be imposed proportionately i.e. restrictions must only be as much
g_ as the restriction is required to achieve the desired objective and not beyond it.
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then it is better to err on the under-restricted side and provide more freedoms. For e.g. Banning of
riding on two wheelers due to increasing accidents on roads is over-restriction.

I Threats to Free Speech in India: 0 00:26:08

(!)
• Obsolete and old colonial laws, laws based on antiquated morality, no revision of such laws to suit
contemporary times.
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w • Weakness of the political class to amend, repeal the laws and misusing it to silence dissent.
::E • Weakness of judiciary to do the same, an example being judiciary upholding sedition law in spite of 3
z percent conviction rate and where relief comes after a long time.
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 • Weakness of media and publishing houses, when a large part of media aligns itself with the
government and abandons its traditional contrarian role; it harms the collective good of society.
Publication houses too instead of supporting their authors, have withdrawn the books subject to
heckler's veto.
• Moral corruption of the government officials who carry out orders due to political pressure in spite of
knowing the hollowness of the charges.

Role of Media: 0 00:38:10

Press freedom is not categorically mentioned in the constitution, but rather it is an inferred right, drawing
from freedom of speech and expression. NCRWC recommended press freedom to be categorically codified
in Article 19.

• Role as a civic forum:

o It acts as a parliament of citizens and acts as a conduit for citizens to participate in a democracy.
• Role as a watchdog:
o It acts as a watchdog on the functioning of government and carries out the function of truth to
power. Higher levels of press freedom, leads to higher levels of accountability.
o Modern democracy is mediated democracy, where the citizen's views of the functioning of the
government are largely aided by the media's function and helps in citizen's making a more
informed choice when exercising his/her functions.
o A good sign of a healthy media in a country is a slight adversarial relation between the government
and the media and not an alignment, thus leading to healthy debate.
• Protective Role:
o A fair media provides voice to the voiceless, and hence assists government in promoting welfare of
weaker sections.
• Information Role:
o Any notion of censorship in media leads to citizens being less informed and later even the
government becomes less informed, thus breaking the feedback mechanism between
government and the citizens.
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estimated 23-30 million people died, due to media's censorship, the information was suppressed
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 o Hence media plays a crucial role in determining values that are important to the community and
hence these values become important for the government.

Issues in Media: 0 01:08:30

• Press Freedom:
o We have close to nearly 1,40,000 registered publications (newspapers and periodicals), 400+
news channels, thus leading to a conclusion of a vibrant media space and media freedom.
o Yet when the ranking of Press Freedom Index (by the Reporters Sans Frontiers) came out, India
ranked 142 falling from 133 and listed India as one of the most dangerous places for journalists to
work properly.
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o Note: Nepal is ranked 1 0 6 h and Sri Lanka 127 in the Press Freedom Index.
• Concentration of media ownership:
o In spite of the large circulation of publications and presence of many channels, the readership and
viewership is concentrated among very few entities. For e.g. Just 4 Hindi newspapers account for
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more than 3/4 of the total sales.
o When there is such concentration, it becomes easier for the government to suppress media
freedom. Media owners also have other business interests (and hence possible relation with
government in getting contracts) as well as close association with political parties and thus their
media entity exhibits bias in that direction.
o The same media entity having dominance in all three platforms- Print, TV and Radio- is also called
as 'Murdochisation of Media'. Ideally any media house should not have dominance in more than 2
mediums.
• Media Corruption:
o Paid news: Collusion between electoral candidates to carry positive news to influence citizens. It is
not an electoral offence under Representation of Peoples' Act, 1951.
o Small newspapers are very susceptible to it. A recent disqualification of anMP was not because of
paid news but exceeding expenditure limit.
o Another instance of media outlets gaining equity in business units leads to conflict of interest for
the media house as it tends to become bias towards the business unit.
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• Trial by Media:
o Media acting as judge, jury and executioner and thus acting as kangaroo courts.
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o The rights issues arising out of media trial:
o Right to reputation is part of right to life and such media trials violate this right.
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o It also creates pressure on judiciary and thus leads to obstruction of justice and contempt of court.
o Back in 20 12, the apex court evolved 'Doctrine of Postponement', if the judge feels that the daily
reporting of the case might poison the atmosphere surrounding the case and lead to unfair trial, the
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::E o But the fault in this approach is that it denies the citizen the right of knowing the facts of the case
z and doesn't act on the media's frivolous behavior. It thus harms the right to be informed. Moreover
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 this can also be abused by judges to shield an accused from transparent proceedings by the high
and mighty.
• Poor Quality of Journalism:
o The quality ofjournalism is very poor in the country today.
o There is no standardization in the journalism courses in India as compared to other professional
courses like AICTE and thus the quality of courses varies across the country and hence a board to
regulate the education is imperative.

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 � FU N DAM ENTAL RIG HTS - ARTICLE
� 19 AN D ASSOCIATED ISSUES (PART-4)
Fundamental Rights - Article 19 and Associated Issues
• It is said that "Good news is no news" as it ca n not be m i l ked for a long ti me.
• But as media is a business, there is a chase fo r advertisement a n d thus a mad q u est for TRPs which
leads to sensationalism. The C h i nese wa l l between the editorial department a n d marketing
department has been b reached a n d com p ro m ised . A Chinese wall meant that there wou l d be no
correlation between the departments.

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o The term describes those media pl atforms who don't ca rry m uch leg iti m ate or wel l researched
z content, but depend more on sensational eye- catching hea d l i nes to get more views.
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• Journalism of Post-truth:
o Arguments and debates are framed around the emotional aspect of the issue and not on
objective reality.
o Post-truth literally means going beyond truth or facts.

Regulation of Media: 0 00:20:00

• Since media is supposed to have an adversarial relationship with the government, hence an external
government regulation would harm the media and society. Thus self-regulation is thought to be ideal
form of regulation.
• But retired Supreme Court judge, Markandey Katju called self-regulation as no regulation.
• Hence, an external regulation outside the control of the government can be the most prudent solution.
• In 20 12, Justice Leveson committee report in UK, stood for robust and external regulation in the News
of The World (NOTW) scandal.
• In India, there are bodies like Broadcasting Content Complaints Council (BCCC) , News Broadcasting
Standards Authority (NBSA) , and Advertising Standards Council of India (ASCI) for self-regulation
purposes.
• BCCC, NBSA. ASCI do regulation and according to experts, they are toothless bodies.
• The Press Council of India (PCI) is also a regulatory body under the Press Council of India Act, 1978.
o It consists of 28 members apart from the chairperson. The chairperson is usually a retired
Supreme Court judge. Of the remaining 28 members, 20 are drawn from the press. Of the remaining
8, 5 are nominated by Members of Parliament, 1 is nominated by Bar Council of India, 1 is nominated �
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FDI in news media: 0 00:37:10 !<i:
• Electronic media has 49 % FDI and print media has 26% FDI. 0
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Government suppression of media: 0 00:47:35
• Ruling parties have always been keen on somehow regulating and controlling the media, due to the :I:
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adversarial relationship between the two.
• In 20 15, during Yakub Memon hanging, ABP news, Aaj Tak and NDTV were issued notices under the
Program Code under the Cable TV Regulations Act, 1995. z
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program that offends good taste and decency, contains criticism of foreign government, any obscene, z
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 defamatory, half-truths, anything that casts doubts on the integrity of judiciary and president,
contempt of court.
• There were also reports of government denying ads in newspapers.

Digital news media rules:

• 26% FDI allowed in digital new media through government approval route. Earlier there was no such
limit to foreign entities owning digital media.
• Issues with digital news media rules:
o Shape shifting nature of internet, experimentation, amounts to forcing net based services to
become one type of organization.
o TV news platform with online platform also have digital presence and hence online presence has to
be separated with respect to activity and ownership.
o Several online media platforms have 100 percent FDI and thus unable to divest.
o Borderless internet has led to news published in US to be consumed in India and vice versa, which
makes it difficult to manage.
o Even social sites like Facebook and Google are also providing news and disseminating content.

IT Rules (2021) � 0 1 : 13:57

• They are referred to as IT (Intermediary guidelines and Digital Media Ethics Code) Rules, 202 1.
• Intermediary is any online platform that stores or transmits data on behalf of others. For e.g. Facebook,

li: Whatsapp, Twitter, Youtube, lnstagram, etc.

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• Thus digital news media, OTT platforms including social media giants, ecommerce sites and also sites
that provide curated content are said to be intermediaries.
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Features of IT Rules, 2021:
• Due diligence by all intermediaries:
o Inform users about terms and conditions, rules, privacy policy and complete information to the
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o Block access to platform on order from court or government
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 from the service, the service provider has to store the information.
o These rules should be followed by all intermediaries whether significant or not.
• Rules for significant intermediaries:
o These are intermediaries having more than 5 million numbers of subscribers.
o Appoint chief compliance officer to ensure IT act and other rules are followed;
o Appoint grievance officer to address complaints in time frame;
o Appoint nodal contact person to coordinate with police authorities for 24x7 coordination.
o Publish monthly compliance report.
o Intermediaries to enable identification of first originator but intermediaries claim to provide
complete end-to-end encryption as their unique selling proposition and hence business as well as
privacy would go away.
• Code of ethics for digital media:
o There has to be a three tier grievance mechanism with the lowest tier being self-regulation by
publisher. (to appoint a Grievance Redressal Officer who would be responsible to redress
complaints within 15 days) If not satisfied with the decision of the GRO, an appeal can be filed to a
self-regulatory body, if not satisfied yet, then can send grievance to interministerial committee
consisting of secretaries, which is basically a government committee.
o Hence this has the usual criticism of government having oversight.
o Moreover an interim order can also be passed if there is an emergency and content can be taken
down in case of emergency by the Secretary - Ministry of Information & Broadcasting.
o They are supposed to classify content in age appropriate categories.
o There also has to age verification mechanism for accessing adult content. �
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o They will also have to follow norms of journalistic conduct formulated by Press Council of India !:!!
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Issues in these rules: 0 01:37:50
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to the rules. <(
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• End of end-to-end encryption and thus privacy of data.
• It covers wide spectrum but the consultation has been limited. :I:
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• Under delegated legislation, the rules and regulations should be the extension of parent law and
cannot be a new law unto themselves. Such elaborate rules have no provision in the IT Act 2000,
while the rules have been framed under section 79; there is no specific provision that enables such z
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law. Thus this is an abuse of power and may be termed unconstitutional and hence a fresh legislation is
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 • It amounts to unreasonable restrictions as seen under the constitution and may lead to
overregulation, censorship and hence have to be seen by the courts.
• It increases compliance burden and financial burden, especially for smaller digital media platforms.
• Legacy media: these rules are for digital media but legacy media hosted on digital medium also are
subject to these rules.
• Note: legacy media is the traditional media which existed before the commencement of the
information revolution
• Nowadays the big tech consisting of social media giants has great power and state has the
responsibility of security, unity, public order etc., thus the state has the right to regulate to ensure these.
But it also has to be balanced by rights of privacy, freedom of speech and expression.
• Since this space is still in its infancy, the relation between the intermediaries, society and state needs
time to evolve,

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 =r., FUNDAMENTAL RIGHTS - ARTICLE
� 19 (PART-5) AND ARTICLE 20
What amounts to Reasonable restrictions? 0 00:02:54
Court's view:
• There cannot be strait jacket formula, hence depends on case by case basis
• Prevailing condition/circumstances: something that may seem unreasonable in normal situations may
seem normal in dire situations.
• Restrictions are imposed to prevent abuse of rights and reduce public mischief; restriction hence must
be proportional to the mischief and must control that and not go beyond that. This is the
proportionality test. Thus clauses mentioning restrictions try to enlist the restrictions that are to be
imposed.

Article 19(1) (b): Right to assembly

• The right concerns right to assemble peaceably without arms, however the provision 'without arms' is
difficult to define and what all constitutes in the definition of 'arms'.
• The two rights contained in Article 19(b) and (c) can be discussed collectively and hence the
restrictions imposed on them can be discussed too.
• The restrictions on Right to Assembly under sub clause 3 are sovereignty and integrity of India and
public order, sub clause 4 mentions morality as additional restriction to association right.

Restrictions on Right to Assem b ly Restrictions on Right to Association

• Sove reignty and integrity of India • Sovereignty and integrity of India

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• These rights allow citizens to engage with each other
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Restrictions on Right to assembly: 0 00:15:53
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<( • The restrictions under this right in British era tried to curb nationalism and popular mobilization against
the British rule, in the form of:
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z ► The law also provides for prior permission if there is fear of breach of public order
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o CRPC, 1872 modified later in CRPC, 1973.

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 • Sec 144 of CrPC: a gathering of 5 or more is banned on prohibitory orders of the executive magistrate.
• There have been arguments to repeal such laws since it is a fundamental right to assemble, and have
been upheld by the apex court though the guidelines have been given, there is scope for discretion due
to lack of detailed guidelines.
• In case of a pre-planned protest, getting prior permission certificate from the police is also upheld
where the apex court has held that the freedom to assemble doesn't mean the right to assemble
anywhere.

Right to Association 0 00:32:37

• Everybody has a right to association but the association so formed shouldn't be engaged in unlawful
activities.
• If the organization becomes unlawful, its members can be prosecuted too.
• The principal law used to classify organization as unlawful is the Unlawful Activities (Prevention) Act,
1967. (UAPA, 1967)
• A notice is sent to an organisation undertaking unlawful activities before banning, a hearing is taken,
once these procedural requirements are fulfilled, both the state and the union can ban the
organizations. However, there is a respite of going to the High Court/Supreme Court to ask for relief.
• If there is a violent incident and evidence suggests the organization's involvement in that incident, and
the organization is accused of carrying out the act, will all the members who were part of the
organization but not engaged in that particular violent activity be prosecuted too?
• The apex court has said if you can establish a direct link between the member and the act that was
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• The apex court said that the right to form association doesn't include right to fulfillment of its aims. C
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recognition. The government has right to reject the demand because the right to form association
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doesn't include right to fulfillment of aims of organization, which in this case is to educate deprived �
children howsoever noble the aims may be. O')
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fundamental right of those who do not want to join.

Right to Protest: 0 00:48:36

• Right to protest can be derived from both Article 19(1) (a) and 19(1) (b) and also indirectly from Article z
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• Usually issues of protest revolve around fundamental issues concerning a person's life and thus deal
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 • Since the original rights are subject to reasonable restrictions, these derived rights are also subjected
to reasonable restrictions.
• In the Amit Sahni judgement, the apex court in context of Shaheen Bagh issue said that the right to
protest has to be balanced with state's duty to preserve public order, and there cannot be an
indefinite blocking of a public place.
• Hence a new ground has come up that is 'inconvenience to the people' and police can take action to
remove the protestors.
• But detractors say that disruption is a natural corollary to any form of protest, and hence for the
substantive exercise of this right there should be a substantial tolerance for disruption; else it will
become a hollow right.
• In the Himat Shah case, 1973, the court said that right to protest does not include right to protest
anywhere, there cannot be a blanket ban but there will be restrictions.
• It also said the government cannot place a general ban in all place and areas.
• The right to assembly is a fundamental right and has to be. In the Rangarajan case, 1989 it was
adjudged that the right to protest cannot be suppressed based on some illusory, imaginary, far
removed threat to peace or public order. There should be direct connection if suppression has to be
done.
• These rights too face reasonable restrictions but these restrictions should act at the narrowest
margins.

0
Right to move freely and Right to Reside 0 01:16:13
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li: movement and residence

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• Reasons being purchase of property by outsiders, many state governments follow policy that is
discriminatory against outsiders like residence based quotas, and women marriages forming a large
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• Goonda Acts provide from externment of Goondas for a specific period from a specific place after
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(!) being declared an anti-social element. It restricts a citizen's right to movement. Hence, the
constitutionality of these acts has been challenged but it has been upheld by the apex court. It has
further insisted on minimal safeguards against the use of these Goonda Acts.
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Right to profession, occupation, trade, and business (POTB) :
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 create partial or full monopoly, minimum technical or professional qualifications for a profession; it can
also put restrictions like liquor trade, arms trade, etc.
• Before a profession is exercised as a right under Article 19(1)(9), that POTB has to be accepted as a
legitimate POTB. The courts have approached the legitimacy of this issue by viewing the POTB
through a historical lens, moral lens and its social effects and then reasonable restrictions are
imposed. For e.g. prostitution racket or a gambling den cannot be claimed under right to profession,
occupation, trade, and business as they fail the test of legitimacy.
• In 1977 the courts said that that credit lent by banks is a legitimate activity, while the same being
done by moneylender is seen as illegitimate after seeing through the historical lens.
• In 2013 Indian Hotels and Restaurant Association case (Dance Bars in Mumbai), the government's
decision to ban dance bars on grounds of bad moral effects and bad social effects, was overturned by
the apex court while saying that as many women depend on the occupation, limitations can be
proposed but blanket ban is not right.

Article 20: 0 01:46:14

• Protection in respect of conviction for offences:
o ( 1) No person shall be convicted of any offence except for violation of the law in force at the time of
the commission of the act charged as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time of the commission of the offence
o (2) No person shall be prosecuted and punished for the same offence more than once
o (3) No person accused of any offence shall be compelled to be a witness against himself 0
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• A person can't be a witness against oneself and self-incriminatory evidence cannot be forced.
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• Nobody can be forced to give testimonial compulsion i.e. forced to say anything against a person's ct.
wishes in the court of law. O')
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polygraph test (lie detection test), brain mapping, etc. were being rampantly used.
• In Selvi vs. State of Karnataka in 2010, the court opined that these tests can be performed but not
without the consent of the accused and if don e without consent it will violate article 2 0 (3), right to life
under Article 2 1 .
• Anything said when the accused is administered these tests is not admissible in the court of law, but
whatever the police discovers as evidence based on whatever is said by the accused when under the
influence of these tests, is admissible in the court of law.
• But asking for blood samples, DNA samples, fingerprints, specimen signatures, and physical
presentation in the identification parade does not require the consent of the accused.

Previous Year's Questions

Q. Discuss Section (,(,A of IT Act. with reference to t h e alleged violation of Article 1, of the
Constitution. (200 words) (2013)

Previous Year's Questions

Q. What do you understand by the concept "freedom of speech and expression· ? Does it cover
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hate speech also ? Why do the films in India stand on a slightly different plane from other forms of
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� 2 1 (PART- 1)
Significance of Article 14, 19 and 21:
• Article 14, 19 and 2 1 constitute the golden triangle of fundamental rights, even if we remove all the
rights mentioned article 14 to 32, all the removed rights can be deduced/interpreted from the rights
mentioned in the golden triangle itself.

Arti c l e 14

Golden
Tri a ng l e

A rti c l e 19 Art i c l e 2 1

Article 21:
• No person shall be deprived of his life or personal liberty, except according to procedure established by
law.
• Thus to take away someone's life, there must be a law and a procedure associated with it for its
enactment.
• In this case, Article 21 protected the individual from executive tyranny, but not legislative tyranny.
• While the article lays down the provision for a law, it does not mention the legitimacy or the
reasonableness of the law. Thus the reasonableness of a law reached the apex court in 1950 itself, in
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• The judiciary had not adorned its activist image then. While the article 19 concerning restrictions says
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• In the AK Gopalan case, the court upheld the procedure established by law. There is a view that court
gave the deference to the constituent assembly that was functioning as a legislature then, to not
advocate reasonableness and said that under article 2 1 any law can be made by the Parliament.
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(!) • However in 1978, Menaka Gandhi vs. Uol, the court said that Article 19 and 2 1 cannot be seen as
...I water tight compartments, and the test of reasonableness has to be applied to article 2 1 too, and thus
z gave the test of 'due process of law'.
w • This was already inherent in article 19 and thus was incorporated in article 2 1. Thus Article 21
protected the individual from executive tyranny as well as legislative tyranny.
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 Note:
Sir BN Rau, the advisor of the Constituent Assembly, in his conversation with US Supreme Court
Judge Felix Frankfurter suggested that, because due process of law has been incorporated in the US
Constitution, there has been lot of friction between US Congress and US Supreme Court. Thus he
suggested that while it should be practiced, an explicit mention should not be preferable. India was just
coming out of colonialism and hence couldn't afford such conflicts between the judiciary and
legislature.

Issues with respect to Right to Life: 0 00:22:18

Right to Die
• Does right to life include right to die?
• We already have a freedom to speak and not speak, the freedom to move and not move, the freedom to
practice a profession and not practice a profession. Should the same logic extend to freedom of life and
a freedom to die too?
• In case of rights like freedom of speech where we can choose to remain silent, after remaining silent we
can resume the right to speech later, but such is not the case with right to life and right to die.
• After exercising right to die, it is permanent and non-reversible. Hence while a suspension of the right
to speech is temporary, the same doesn't hold true in the case of right to life.

Right to die has two facets: suicide and euthanasia

According to section 309 of IPC, an unsuccessful attempt of suicide will invite a penal prosecution.

Points in favour of decriminalizing suicide:

• Commission of crime vs. attempt of crime:
o There is a general distinction between attempted crime and actual crime, with the actual crime
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attempted crime has to be less than the committed crime.
• Harsh treatment of jails:
o A person who has failed in a suicide attempt, instead of tackling his situation with compassion, love
and care, we are treating him with punishment, and hence a further punishment is actually an
assault on his right to life.
• Indian laws will be in sync with global norms: z
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o In various mature democracies around the world suicide is decriminalized. :::E
• Indian philosophy accepts right to die:
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o With practices like santhara, Sita and Ram taking samadhi, right to die has been somewhat ::::)
LL
 accepted by the Indian society at large.
o While the western view ordained in Christian ideals, views the body as a temple of God, but in
Indian philosophy is seen as a prisoner of soul.
• Failure of society:
o If there are such individuals who have been so burdened that death is preferable to living by such
people, it is failure of society to recognize and bring compassion to such people.
o While the society fails in all this, it further punishes the individual.
• Sec 309 of IPC:
o It leads to missing of the golden hour to save the life of a patient, due to medico-legal issues and
thus doctors hesitate to attend the patient.

Points against decriminalizing suicide:

• The logic used here is that life is a personal property, but the effects on immediate family members etc.
is ignored, thus this right to life is seen as an individualistic notion of capitalism. It is thus in line with
everything being viewed as private property, including one's life.
• State has a duty to prevent violence in the society, even when the violence is against the self, even
when it is self-inflicted. In 1996, Gian Kaur case, the apex court upheld sec 309, even though the law
commission in 1971 and 2008 advocated that sec 309 should be repealed.
• Mental Health Act, 2017, Section 115 has watered down the scope of Sec 309 of IPC, on the
presumption of the victim being under stress, unless proven otherwise.

Euthanasia: 0 00:48:20
• It can be of two types namely, Active and Passive Euthanasia.
• While active deals with an active lethal drug etc. that leads to death, passive deals with removing
the life support systems. In passive also there can be voluntary and involuntary.
• The issue of debate is that who will decide the decision for e.g. of declaring a person in permanent
vegetative state.
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In favor of euthanasia:
• It would end individual suffering.
• It is already practiced informally in India.
• Life support systems lead to financial burden and resource burden due to scarcity.
• Dedicated hospitals and beds scarcity, thus leading to high opportunity costs.

Against euthanasia:
• Violation of Hippocratic Oath of doctors, which says that a doctor's job is to save lives.
• Abused in involuntary euthanasia, since there is no surety that the patient would not be conscious
again, and can be used for conspicuous benefits.
• Miracles happening have been dismissed.
• Slowdown of research and loss of incentive to research if there is a euthanasia option
• Usually with euthanasia, the pain of the family members is relieved rather than the pain of the patient.
• In the Aruna Shaunbaug case, 2011, the apex court allowed passive euthanasia only for people who
are terminally ill or in a vegetative state.
o It further said that every case of euthanasia would be decided by a division bench of the local high
court which would decide on the basis of the opinion received from a panel of 3 doctors.
• In 20 16, a bill was introduced, called as The Medical Treatment of Terminally Ill Patients Bill, 2016 to
frame further detailed rules in this matter, but it could not be passed.
• In 20 18, in the Common Cause judgment too, the Supreme Court reiterated its stand of 20 11 on
passive euthanasia.

Advanced medical directive/living will: 0 01:05:45

• Suppose a person is suffering from a critical disease like Alzheimer, eventually with time his brain
functions will start shutting down. The person diagnosed with the disease knows that he would be in a
pitiable state in the future.
• Should the person be allowed to write a will with regards to his property, etc. and write in the will that if
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his situation reaches a point where he is totally incoherent, is totally dependent on other people for rt.
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• In 20 18 apex court gave legal sanctity to living will. In the year 2000, a person went to The Kerala High w
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Court, in CA Thomas Master case, and said that he was not under any stress, he was content with his
life having lived it to the fullest, and he had no obligations to anyone and hence wanted to choose the
time and manner of his death.
• This was a request for voluntary death. But the high court denied the permission.

Expansion of Rights under Article 2 1: 0 01:10:23 z

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• Most rights are a negative obligation on the state. :::E

• But how do you define life, in biological terms it is simply the physical act of breathing, but the
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domain has expanded and hence the negative role of state turns to positive role to preserve life. ::::)
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 • Exa m ples being hea lth , shelter, envi ron ment a n d hence the state's responsi b i l ity to ensure these, a n d
thus m a kes these positive obligations.
• List of th ings incl uded under Right to l ife:

Health Hea lthy environ ment Privacy Shelter

Livelihood Fair trial Human dignity Emergency medical

aid

Free legal aid Reputation Peacefu l sleep Speedy trial

• Thus Article 21 has become a ca nopy of rig hts u nder which va rious rig hts have fou n d nourish ment a n d
g rowth.

Note:
Some rig hts l i ke rig ht to l ive l i h ood is not with i n state's capacity while some rig hts l i ke right to peacefu l
sleep can not be the p rerog ative of the state as it depends on m a ny th ings.

Problem of Undertrials in Jails: 0 0 1 :22:27

• An undertri a l is a person who is put i n j a i l for a n accusation but when thejudg ment comes the person is
acq u itted for a cri me that is he has not co m m itted .
• There a re convicts a n d u n dertri a l s i n j a i ls, t h e undertrials are 70% o ft h e jai led popu l ation i n I n d i a .

Note: T h e global average of undertrails injails is 32%

Reasons:
• Overworked Police:
o U N norm is 2 2 2 pol ice per l a kh population , whereas I nd i a has 1 5 5 per l a kh popu lation
• Bail principle not followed:
o The princi ple of 'bail should be the norm.jail should be the exception' is not fol l owed .
• Judiciary is also over-worked:
o The average pendency of cases i n I nd i a n j u d ici a ry is 15 years, while i n Su preme Cou rt alone it is 4
yea rs.
• Prosecution standards are not high:
o It is said to be the wea kest l i n k i n the cri m i n a l j ustice system .
o There is shortage o f prosecutor as wel l as poor q u a l ity o f p rosecutors.
• Class bias:
o Poor strata of popu l ation a re not i n a position to affo rd tri a l s i n cou rts.
o Hence there is a class bias a n d overwhe l m i n g undertrials are from poor socioeconomic
 background.
• Legal aid mess:
o There is lack of awareness and systemic procedure to avail the benefit of legal aid. The accused
most of the times are not aware of the person who is going to defend them in the court of law.
o A person committing a crime not punishable by death can be released on own surety bond if he has
served half the sentence while being undertrial, if he would have been convicted. This provision
exists under section 436A of the CrPC, but it is not being implemented.
o In 20 14, the Supreme Court in Bhim Singh case chided the governments to implement it fully.

How do you measure a society's progress?

• By how it treats its prisoners and animals, but we violate it so much, as seen by the cases of custodial
violence.

Custodial Violence: 0 01:39:24

• It is the violence which happens on the persons in police custody.
• In the last 3 years, 5221 individuals have died in custody (judicial and police custody), and 348 have
died in police custody.
• In judicial custody death mainly occurs due to suicide, natural death, inferior food quality, heath
concerns, disease, etc.
• Custodial violence is mental, sexual and physical violence on persons in custody.
• Systemic factors like overworked police, media and societal pressure to deliver results and lack of
modern technological aids to investigate give result to custodial violence.
• In this context, right recruitment and right training is needed, and the right kind of person has to be
recruited.
• If the Rule of Law is set aside once, it is a slippery slope and hence it should be first at first sight.
• As we have signed the UN Convention against Torture, there should be proper laws and frameworks
against torture.
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• Constitutional provisions dealing with these: .-I
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o Article 20(3) : No one can be compelled to give self-incriminating evidence w
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o Article 21: Right to life includes right to live with dignity
o Article 22: Protection against arrest and detention in certain cases
• Other provisions:
o Sec 54 of CrPC: It talks about regular medical examination of the persons in custody
o Sec 176 of CrPC: It provides for a compulsory inquiry by magistrate if there is a death in custody
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 r:r:, FUNDAMENTAL RIGHTS
� - ARTICLE 2 1 (PART-2)
Custodial Violence:
Apex cou rt i n DK Basu judgement in 1997 laid out some g u i d e l i nes to address this p roblem:
• The police personnel ca rryi ng out the a rrest a n d h a n d l i n g the i nterrogation of the a rrestee should bear
accurate, visible and clear identification and name tags with their designations. The p a rticu l a rs of a l l
s u c h police personnel w h o h a n d l e i nterrog ation o f the a rrestee m u st be recorded i n a reg i ster
• That the pol ice officer ca rryi ng out the a rrest shall prepare a memo of arrest at the time of arrest and
such memo shall be attested by at least one witness, who may be either a member of the fa m i ly of the
a rrestee or a res pecta ble person of the loca l ity from where the a rrest is made. It s h a l l a lso be cou nter
sig ned by the a rrestee a n d s h a l l conta i n the time a n d d ate of a rrest.
• A person who has been a rrested or deta i ned and is being held in custody in a police station or
i nterrogation centre or other lock u p, shall be entitled to have one friend or relative or other person
known to him or having interest in his welfare being informed, as soon as practicable, that he has
been a rrested a n d is being deta i ned at the pa rticu l a r place, u n less the attesting witness of the memo of
a rrest is h i mself such a friend or a rel ative of the a rrestee.
• The time, place of arrest and venue of custody of an arrestee must be notified by the police where
the next friend or relative of the arrestee lives outside the district or town through the Legal Aid
Organization in the District a n d the police station of the a rea concerned telegra p h ica l ly within a
period of 8 to 12 hours after the arrest.
• The person a rrested m u st be made aware of his right to have someone informed of his a rrest or
detention a s soon a s he is put under a rrest or is deta i ned.
• An entry m u st be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has been i nformed of the
a rrest and the n a mes land p a rticu l a rs of the police offici a l s i n whose custody the a rrestee is.
• The arrestee should, where he so requests, be also examined at the time of his arrest and major and
minor injuries, if any p resent on h i s/her body, m u st be recorded at that ti me. The 'Inspection Memo'
m u st be signed both by the arrestee and the police officer effecti ng the a rrest a n d its copy p rovided to
the a rrestee.
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• The arrestee should be subjected to medical examination by the tra i ned d octor every 48 hours
d u ri n g his detention i n custody by a doctor on the panel of a p p roved doctors a p poi nted by D i rector,
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such a panel for a l l Tehsils a n d Districts as wel l .
• Copies of all the documents including the memo of a rrest, referred to a bove, should be sent to the
Magistrate for his record.
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...J i nterrogation .
• There should be a police control room in every district and state headquarters where information
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officer. This m u st be done within 12 hours of the arrest.
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 Note:
• At the international level there is an International convention against torture, India has signed
it in 1997, but has not ratified it. Even Pakistan and China have ratified it.
• In 20 17, the Law Commission came out with a draft bill detailing provisions related to
definition, punishment, protection of victim, and compensation.

Right to Life Today Under Article 21: 0 00:12:18

• The court has gradually moved from an anthropocentric to bio-centric interpretation of the term
'person' in Article 21, examples being the Jallikattu case.
• In the Prevention of Cruelty to Animals Act, 1960, an animal mentioned in the act, cannot be used for
exhibition, circus, trade, etc. In 20 1 1 bulls got included in the list and hence jallikattu got banned, in
20 1 4 court upheld the ban.
• The court said Article 2 1 also includes the Right to Life of animals too citing universal declaration of
animal welfare which mentions five freedoms:
o Freedom from hunger, thirst, malnutrition, etc.
o Freedom from physical discomfort
o Freedom from pain, injury, disease
o Freedom from fear and distress
o Freedom to express normal patterns of behavior
• Even Article 51A mentions to show compassion to animals.
• In 20 1 6, bulls were removed from the article by the central government. The Supreme Court again
placed a stay on this decision. In 20 17 the Tamil Nadu government came out with an ordinance to get
around the judgment. Eventually the Supreme Court has referred this matter to a constitution bench
and the decision is still pending.
• The matter pending before the constitution bench is also in the context of Article 29 ( 1) which says that
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any community has the right to preserve has a right to conserve a culture. �
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LGBTQ Rights (Lesbian, gay, bisexual, and transgender, queer) : 0 00:26:06
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• Traditionally gender was seen as a binary, but in NALSA case, 2014 the apex court held transgenders
to be the third genders.
• It cited Article 14 that the term 'person' in Article 14 consists of not only male and females but others
too.
• The court thus rejected binary conception of gender. Any such discrimination would amount to
violation of Articles 1 5 ( 1). 1 5 (2), and 16 which says no discrimination on grounds of sex.
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• Right under 1 9 ( 1) (a) also refers to freedom to express ones chosen gender. :::E
• The court said it is not determined biologically but the felt experience of the person. The self
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determination of gender is a part of autonomy and liberty under article 2 1. ::::)
LL
 • Thus the term 'person' in article 14 includes transgenders too. The transgenders are also to be treated
as OBCs as part of the horizontal discrimination they face. The court relied heavily on the Yogyakarta
principles.

Note:
Yogyakarta Principles were laid in 2006 in a UN backed conference and were concerned with
sexual minorities like LGBTQ

• Madras High Court in the Arun Kumar case, 2019, upheld the marriage between a transgender and
cisgender. (cisgender is a person whose gender is equivalent to the sex assigned to that person at the
time of birth)
• The first state to recognize the third gender nature of the transgenders was Kerala
• The government has also brought out the Transgenders Protection of Rights Act, 2019
o Though the court focused on self-certification, but the bill had the requirement of a transgender
certificate.
o Moreover, under the bill, sexual abuse of transgenders invites less quantum of punishment as
compared to cisgenders and thus it codifies inequality of genders.
0 00:40:28
Sec 377 of lPC:
• It talks about carnal intercourse against the order of nature.
• In the Naz foundation case, in 2009, the Delhi High Court said that we are not capable to decide the
order of nature.
• Since it talks about unnatural sex, even the use of sex toys by females etc. should be criminal offence
too, thus it also violated article 14 based on sexual orientation.
• Any investigation of what happens in the bedroom of a couple amounts to violation of privacy, and also
violates freedom to express sexual orientation under Article 19(1) (c).
• The court did not strike down the section, but read it down i.e. narrowed down its scope, thus making it
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applicable only to minors.
• In 2013, the Supreme Court reversed the verdict in Naz foundation case. The court cited that it was
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such cases was very less,
• But critics termed the courts abdicating its responsibility and not striking down a law that was
unconstitutional in nature which was the constitutionally defined duty of the courts.
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(!) • In Navtej Johar case, 2018 it was reversed finally and section 377 was decriminalized.
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0 00:50:15
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:[ Capital Punishment/Death Sentence:
• Life cannot be taken without procedure of law as mentioned in Article 2 1. There are many arguments
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Arguments in Favour of Death Sentence:
• It serves as deterrence to violent crimes.
• There are certain crimes that are so shocking that death sentence is a collective sense of anguish of
society. Based on the assumption that it is the ultimate punishment.
• Brings a sense of closure to victim's family based on retributive justice.

Arguments against Death Sentence:

• Irreversible and permanent:
o If there is some innocent executed and how does a society deal with this injustice.
• Cruel punishment:
o As per the Supreme Court, no punishment should be cruel.
o But punishments like electrocuted, hanged, lethal drugs, amount to cruel punishment.
• Retributive Justice:
o It endorses the principle of retributive justice, rather than reformative justice.
o A person sentenced to death implies that the person is beyond reform which humans are not
capable of deciding. Thus it is practically playing the role of God.
o Thus retributive justice is an old medieval notion of justice.
• Capital punishment often comes to people without capital:
o There is class bias involved in capital punishment.
o As rich people with the best legal help can escape from the punishment of death sentence even
after being convicted for a cruel crime.
o But it is not the case with poor strata of the population who do not have enough legal help.
• Doubtful deterrence:
o The deterrence nature of death penalty is still doubtful, example of US where the homicide rate in
the abolitionist state is lower than that of the retentionist states.
o In 1992, murder rate in India was 4.6 per 1 lakh population that came down to 2.7 per 1 lakh in
20 13. This in fact, was the period of the least executions under capital punishment which still
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o Deterrence against terrorists is questionable since execution invites martyrdom, revenge .-I
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attacks, more radicalism and propaganda training thus robbing any positive effect of the death w
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penalty.
o It is not the severity but the certainty of the punishment that deters the crime. But because of the
slow progress of judicial system, the system has been robbed of the certainty of the punishment.
Justice delayed is justice denied.
• Extradition issue:
o Any attempt in signing Mutual Legal Assistance Treaty (MLAT), extradition etc. becomes an issue z
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with the morals of European countries which have banned capital punishment. :::E

o Thus many countries are reluctant to sign MLAT treaties as they view death penalty as an abhorrent
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act. ::::)
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 • Law commission in its 3 5th report in 1967 endorsed capital punishment but in its 262 nd report
recommended to abolish it except for terror related offences or acts.
• In the International Criminal Court and U N war crime tribunals in Yugoslavia, Lebanon, Sierra Leone,
etc. accused were tried but capital punishment was excluded even for heinous crimes like genocide.
• South African constitution court in 1995 held death sentence unconstitutional as it said, the outcome
of the case depends on the manner of the investigation, way the case is presented by the prosecutor,
how effectively the accused is defended, personal attitude of judge, financial capacity of accused, thus
with so many factors, a permanent and irreversible death penalty is not tenable and justice becomes
subjective and judge centric.

Death Penalty in India: 0 02:36:25

• Bachan Singh Case, 1980
o Punishment has to be proportionate to the crime.
o Death sentence must be given in the rarest of rare cases where the alternative of life sentence is
unquestionably foreclosed.
o The judge has to judge whether end of justice will be served by a life sentence or not.
o Two factors must be considered, namely the aggravating factors and mitigating factors,
representing the circumstances of the crime and circumstances of the criminal, respectively.
o First the aggravating factors have to be looked into and later the mitigating factors to decide the
quantum of the punishment.
• Machhi Singh Case, 1983
o In Machhi Singh case, 1983, 'rarest of rare' was defined as follows:
► Look into manner of commission of crime, whether it shocks the conscience of society, judge
etc.
► Anti-social nature of crime: bride burning, killing a Dalit, etc.
► Motive of crime: motive shows extreme moral depravity like murder committed just for money.
► Magnitude of crime: how many murders, victims etc.
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► Personality of victim: helpless child, mentally disabled person, leader of the masses, old people
• In Bacchan Singh case, both aggravating and mitigating factors were mentioned, both have to be
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u • It gives rise to a balance sheet concept where the aggravating factors and mitigating factors are
compared against each other, but comparison against each other leads to absurd situations.
• Hence, the aggravating and mitigating factors should be dealt with separately, and should not be
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0
Previous Year's Questions
Q. Does the right to clean environment entail legal regulation on burning crackers
during Diwali? Discus in the light of Article 21 of Indian Constitution and judgements of
the apex court in this regard.
(2015)

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� - ARTICLE 2 1 (PART-3)
Cases Dealing with Death Sentence: 0 00:00:10
• The Bachan Singh Case and Machhi Singh case have already been discussed. The Bachan Singh case
talked about the rarest of rare doctrine and it also talked about that when the courts are delivering on a
particular judgement dealing with death sentence, then the mitigating factors and the aggravating
factors have to be kept in the mind.
• Even though the rarest of rare doctrine was conceived in the Bachan Singh case, the courts did not give
any kind of elaboration.
• Some kind of elaboration was conceived in Machhi Singh case as discussed before. This was the
progressive part of the judgement, while the balance sheet theory was the regressive part of the
judgement, which is not workable.
• In the Ravjijudgement (1996), the courts said to look at only the aggravating factors and ignore the
mitigating factors, thus the previous practice of aggravating and mitigating factors was nullified and it
was termed a regressive judgement.
• In the Bariya Case (2009), the apex court brought back the mitigating factors and the judgements
declared after Ravji case were declared 'per incuriam' (lack of due regard to law). but the balance sheet
theory was not rejected.
• The balance sheet theory that came up in the Machhi Singh case was rejected in the Sangeet Case
(2012) and thus the mitigating and aggravating factors were considered independently of each other.

Effectiveness of Rarest of Rare doctrine: 0 oo:06:49

• The nature of justice should be such that thejudgment pronounced should be predictable.
• It should not be the case that judgement is subjected to the subjective assessment of various judges
and a different outcome arises due to that, making the adjudication process judge centric and not
principle centric giving it some degree of predictability.
• But the criterion laid down to decide that if a case satisfies the rarest of the rare doctrine itself leads the
criterion to be judge centric. It is incumbent on the judge to decide, for example, if the crime shocks the
conscience of the judge, the socially abhorrent nature of the crime, the magnitude of the crime, and
thus very abstract and ambiguous.
• Thus a lot still depends on the subjectivity of the judge which is still often influenced by the media,
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public opinion etc. From 2000 to 2015, 1790 individuals were sentenced to death by the trial courts.
When these sentences went for appeals to the High Court, nearly 55% of the cases were commuted
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to life imprisonment and in 27% of the cases, the accused were acquitted.
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Concept of Clemency: 0 00:14:00
• It means mercy or lenience. These powers are available to both the President and the Governors. The
President avails this power under Article 72 and Article 161 for the Governors.
I
(!) • The natural question that should arise from this situation is that when the best and trained legal minds
...J of the country have awarded the death sentence to a convict, then why has the President or Governor
for that matter have the power of clemency and thus overturn the wisdom of the judiciary regarding
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the convict. These powers have been given because:
o To correct possible judicial errors arising out of an erroneous procedure, omitted facts of the
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 o To correct undue harsh punishment
o To address the problem of obsolete and archaic laws
o If some new facts come to light

Clemency/Pardoning Powers: 0 00:26:15

The clemency powers can be carried out through a composite of choices and any of these can be exercised
by the President or Governor:
• Pardon: The convict is absolved of the guilt and the convict's sentence is nullified
• Commutation: Changing the character of the sentence
• Remission: Reducing the sentence without changing the character
• Respite: A reduced sentence is given in light of some special circumstance.
• Reprieve: A temporary stay on the death sentence of the convict due to the pending of the clemency
petition with the President or Governor
In the CrPC there are certain sections like 432,433,433A which have statutory provisions for remission that
belong to the government.

Clemency Power between President and Governor 0 00:38:43

• The power to pardon a death sentence is exclusively held by the President of India and not the
Governor.
• In the Court Martial cases, the President has exclusive clemency powers.
• Clemency power rests with the President if the conviction is with respect to an offense in law to which
the executive power of the Union extends and in other cases the clemency powers is with the
Governors.

Supreme Court on Clemency: 0 00:47:51

• Kehar Singh Case (1991)
o In case the President/Governor misused the power of clemency, then can a person go to the courts
to redress this through judicial review.
o This question came up before the apex court and it held that the court cannot question the decision
of the clemency based on its merits, but the judiciary still has a limited power of judicial review to �
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ensure that the President and Governor consider all the relevant material pertaining to that case
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before coming to a decision. N
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o The President/Governor can examine the evidence afresh before deciding the decision to grant u
clemency.
o The petitioner cannot demand an oral hearing, but the President or Governor can allow this. But it
is not granted as a matter of right.
o Judiciary cannot lay down any guidelines for the exercise of clemency powers by the
President/Governor.
o The powers of clemency cannot be treated like an appeals court above the judiciary and have z
to be treated independently of the judiciary. w
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o These powers cannot be exercised by the President/Governor on their wisdom. These powers
have to be exercised on the advice of the Council of Ministers much like every power of the z
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 President/Governor.

• G.Venkata Reddy Judgement(2006)

o Clemency powers are prone to misuse and if there is clear evidence of misuse, the courts will step
in to conduct a limited judicial review on grounds of wisdom and merit.
o Clemency cannot be shown on undue grounds of caste, religion, political loyalty, etc.
o Regarding the question of clemency powers being a private act of grace, the courts termed it a
public act, thus the foremost thing that should weigh on the mind of the President/Governor is the
interest of the society and not the interest of the convict.

Issues Concerning Death Sentence: 0 01:04:21

• Undue delay in executions:
o Due to the long time process that takes place in deciding the death sentence and the consequent
appeals before execution of the person, the fundamental right of the convict is violated and he
receives double jeopardy of the imprisonment due to delay and the consequent death sentence due
to the conviction.
o It also affects the mental state of the convict and leads to trauma due to the anxiety of the outcome
of the decisions.
• Hurried or rushed executions:
o This issue came to light in the Afzal Guru hanging where it was termed a rushed hanging by many
individuals because much time was not provided before intimation of the death sentence.
o Thus the apex court in the Triveniben Case (1989) , said that undue delay in the exercise of death
sentence is grounds for commutation of the sentence to life imprisonment.
o In the Bhullar Case, the court took a unique view in this death sentence and said the commutation
relief in the Triveniben case is available to cases related to regular crimes like homicide and not to
terror-related crimes convicted under TA DA and thus it was a regressive judgement where the
court was trying to locate a rarest of rare category under the already existent rarest of rare category
related to death sentence.
o Finally, all these questions were clarified in the Shatrughan Chauhan Case (2014) which said that
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before deciding on a commutation, the supervening events (events during the period since the
judicial remedies are exhausted till the point the person is to be hanged) like undue delay and
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u thus regular mental health evaluation is necessary.
o A period of 14 days must be given to the convict to finally settle his earthly matters before
carrying out the death sentence. The execution should be done in a proper manner and right to life
is applicable to the convict till his last breath. Thus a post mortem also needs to be performed.
I
(!) • Desirability of a Clemency Board:
...J o In Malaysia, there is a Clemency Board which decides on death sentence, while some countries
have Advisory committees consisting of the Attorney General.
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:[
o In USA, the constitution of several states mentions a body that will decide on the clemency
powers, and in some states the Governor is a part of it. Thus the question arises that should we also
z have a clemency board or a pardon board in India.
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 o The clemency petition at the President's level faces much delay, partly due to the delay on the part of
Council of Ministers and partly due to the hesitation of the President to sign death warrants. This is
further accentuated if there is a new President in the office, since he can instruct to carry out the
process anew. This raises the demand for a clemency board.
o Firstly, to do this the Parliament would have to amend the relevant articles in the Constitution which
is not an easy task.
o Secondly, should the advice of the clemency board be binding on the government, since this power
rests with the government and the boards advisory role is similar to as in the case of Malaysia. Thus
any deviation from the clemency board's advice would invite needless controversy.
o Thus the need of a time bound process in death sentence is complex. Each case has different degrees
of complexity, thus imposing a statutory limit would not work well.
o A solution can be a notional time period of six months and any further delay will invite explanation
from the government with cogent reasons. This might aid in expediting the process as desired.

Rajiv Gandhi's Assassination Case: 0 0 1:29:46

• Due to the inordinate delay in the death sentence of the convicts, their sentence was commuted to life
imprisonment in 20 1 4.
• Further due to the statutory powers with the State Government, the Tamil Nadu Government started
proceedings regarding the remission of their sentence.
• Then the Central Government stepped in to claim that the convicts were being awarded double-dip
i.e. double benefits of clemency. The matter went to the Apex Court regarding questions of the
validity of double-dip and since the case was investigated by the CBI, the Centre's argument was that
remission cannot be granted without the consent of the Centre and hence can the Centre exercise
remission powers in the case.
• These questions were laid before the Apex Court. The court was also asked whether the application of
clemency be allowed if there is no application filed by the convicts themselves and thus can the State
Governments exercise unilateral powers of remission. This matter was sent to the Constitutional
Bench.
• In the Sriharan@Murugan Case (20 15) , the court termed that double-dip was allowed.
• With respect to the second question, the courts said that if the case is investigated by a Central �
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Agency, remission cannot be granted by the State Government. Thirdly, the courts said that there
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cannot be a unilateral application of remission by the State Government without the application N
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coming from the convicts themselves. u

Meaning of Life Sentence: 0 01:37:53

• The courts also talked about what the term 'life sentence' means.
• The courts said that if there was no possibility of parole or remission in a life sentence, how can there
be an incentive for a person to reform himself. Thus it is worse than a death sentence.
• Section 433A of the CrPC states the minimum of 14 years of sentence must be spent for any kind of
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remission or parole. Thus the Apex court said that in special cases, the court can lay out the w
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minimum number of years for remission or parole, apart from the 14 years already statutorily
mentioned looking at the gravity of the offense. z
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 River's Status as a Living Person: 0 01:42:35
• In 20 17, the Whanganui river of New Zealand was given the status of 'living person'.
• So, just as the government has the responsibility to protect the rights and lives of people, the same
rights will be conferred to the river.
• The Uttarakhand High Court declared Ganga and Yamuna rivers as 'living persons'. It also directed
that the Director of Namami Gange programme, the Chief Secretary of Uttarakhand and the Attorney
General of Uttarakhand, would be designated as parents of the rivers.
• The State Government approached the Apex Court regarding the conferment of responsibilities on the
Uttarakhand Government alone, while the rivers were interstate rivers. The Apex Court stayed the
order of the High Court.

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 FUNDAMENTAL RIGHTS - ARTICLE
fl] 2 1 (PART-4) AND ARTICLE 22
Right to Privacy: 0 00:00: 17

• Right to privacy has attracted the attention of the judiciary since long and has been subjudice many
times.
• In PUCL
1997 case, basically in the context of right to privacy, there was no Information Technology
(IT) revolution yet, IT act was not there too, but telephones were prevalent. Thus the case was dealing
with telephone tapping which amounted to the breach of privacy of a person.
• The court accepted that sec 5 of Telegraph Act, 1885 authorized the government to conduct
telephone tapping. But in this regard, no rules had been made. Without rules, this was an unchecked
absolute power primed for abuse.
• The courts said that unlawful tapping is a violation of right to privacy derived from article 19 (1) (a)
(fear of eavesdropping curbs speech) and article 21. Hence appropriate rules have to be made to do
the same.
• The court said that tapping can be done only under the following grounds
o Sovereignty and integrity of India
o Security of state
o Friendly relations with foreign countries
o Public order
o To prevent incitement of an offence
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w secretary, both at the centre and state level, with provisions of authorization for fixed time frame and
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reauthorization.
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0 cabinet secretary and chief secretary at the state level.
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With the advent of IT act and information age, the modes of communication expanded and telephone was
not the only medium through which communication was carried out.
Under sec 69 of the IT Act, 2000, there was an authorization to interception of messages, reading of
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< Puttaswamy J udgement, 2017: 0 00:08:30

A nine judge bench in the Puttaswamy Case was set up because, in Aadhaar all kinds of information
::r: including biometric was collected, but there were reported cases of leak of Aadhaar data, thus the central
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government was an automatic party to the case.
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• Right to privacy can be expanded to deduce that there is a private sphere that is unique to a person
z
w and that the person has total right to preserve it without disturbance i.e. basically the right to be left
alone.
z • The central government argued that:
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 o There is no right to be left alone because man is social animal, and hence negating the concept
that man can have a private domain and he is limited to a public domain.
o The government also said that right to privacy is demanded by people who have something to
hide.
o Right to privacy is an elitist notion, whereas poor are concerned with basic livelihood issues.
o Right to privacy is very difficult to define. Where the private sphere ends, and where the public
sphere starts is very ambiguous and difficult to determine.
► But this is relevant to all rights not just privacy, example freedom of speech and expression,
hence some contestation and debate exists for every right.
• The Apex Court in the nine judge bench set aside these arguments in 9-0 in the Puttaswamy case and
gave the judgment.
• The government had held that the apex court had never committed that right to privacy was a
fundamental right,
• In 1954, a 8 judge bench in MP Sharma case, and 6 judge bench in Kharak Singh case, the apex court
had held that right to privacy is not categorically mentioned in part Ill of the constitution.
• But a smaller bench in PUCL case had held right to privacy as a fundamental right, thus to overrule a
large bench of 8 judges in the MP Sharma case, a nine judge bench was required to uphold the
judgement in PUCL case.
• The courts also held that privacy cannot be compartmentalized in Art 19 and 21 only; it also includes N
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how a person expresses his sexuality and set the stage for finally decriminalizing section 377, food w
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preferences and other areas. The larger essence being right to privacy is a part of part Ill. u
• The courts also did an interesting thing, in the 1975 ADM Jabalpur case, 4-1 five judge bench held �
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that if a person is arrested or even killed during a national emergency, he has no recourse in law to C
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secure his freedom. <(
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• But the ADM Jabalpur case was made null and void by the 44 Constitution Amendment Act which
had the provision that Article 20 and 2 1 cannot be suspended during emergency, and if that �
amendment is removed later, the case still upholds. [
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• So finally in Puttaswamy case, the courts also overruled the ADM Jabalpur case. N
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• Once declared a fundamental right under Article 19 and 2 1, any restrictions under right to privacy can ...I
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be imposed only by law as decided in Maneka Gandhi case and already present in article 19.
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and political rights, and this was categorically rejected by the apex courts.
• Right to privacy is not concrete and is perhaps more ambiguous and fluid as compared to the other :::c
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fundamental rights.
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• Hence it will be allowed to evolve on a case to case basis.
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Right to privacy is not absolute and any restriction imposed has to be by law, be reasonable and subject to
test of proportionality.
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• Thus for example in the recent case under Pegasus, any use has to be done under a law that has been ::::)
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 legislated. But due to absence of a proper legal framework, it is a crucial issue of public concern and
privacy will be violated.

India is a signatory to the UN based International Covenant on Civil and Political rights, 1966 where Right
to Privacy is a right mentioned.
• Even in Constituent assembly a debate was held and legislation for the same was suggested.
• In 20 12, Justice AP Shah Committee was formed and it recommended a need for a privacy law to
protect one's privacy from both public and private encroachment. For e.g. big tech privacy
commissioners at centre and state levels need to be appointed, privacy commissions to deal with
privacy law cases, etc.
• RTI Act clearly says not everything can be disclosed, sec 8 gives a list of exemptions, a provision
includes any information that serves no public purpose but amounts to unwarranted invasion of
privacy, information held in fiduciary capacity, thus these elements were already present in RTI act.

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u • In today's information age, anything that is done is locked in digital memory permanently and thus
acts as double jeopardy and a constant reminder of a person's crimes or mischiefs.
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<I • Thus there is a debate about right to be forgotten where the information is no longer relevant, not
redundant to remove that data from the internet and hence the person shouldn't be stigmatized for
::r: the entire life
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• Delhi High Court termed right to forgotten as a fundamental right, the data protection bill, 20 19, also
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contains a similar provision.
z
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• Since internet is of a global nature, enforcement of orders is difficult and hence it may be removed from
the local internet but not from the global one
z
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u. • Can lead to censorship.
 • Compromise quality of internet.
• Compromise right to information of people.
• May amount to re-writing history.

Medical Termination of Pregnancy Act, 197 1 and Amendments: � 0 1:00: 16

• Principle issue with abortion has been the right of woman to her body or a woman's agency.
• Second issue is duty of state to protect life i.e. a foetus life.
• Another debate is when does life begin with questions bordering biology, morality, religious lines, does
a foetus have rights?

Note: With respect to abortion, even western states are regressive as seen Roe vs. Wade case in 1973 in the
US. While in other rights these countries are advanced but even there, abortion is a debatable issue.
• In India, it was put in Medical Termination of Pregnancy because of population control issue rather than
based on woman rights debate.

Original act:
• Up to 12 weeks medical termination of pregnancy can be performed with the help of a medical
practitioner.
• Any abortion between 12 and 20 weeks can be performed by 2 medical practitioners. N
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• Grounds of permission included physical well-being, mental well-being, unwanted pregnancy, failure w
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of contraception, foetal abnormalities, detected within 20 weeks. u
• Beyond 20 weeks, no abortion was allowed. �
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• But many foetal abnormalities can be detected only after 20 weeks, victims of rape discovered later of C
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being pregnant; it becomes difficult to terminate pregnancy because of the 20 week clause. <(
• Third problem was that only a women and her husband could abort, thus any pregnancy out of
wedlock went for illegal and unsafe abortions. �
• Thus MTP was amended in 202 1. [
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Amended Provisions: ...I
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• Upto 20 weeks, permission of 1 medical practitioner would be needed.
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• Between 20 and 24 weeks, some specific cases can be dealt in this window; it will require 2 medical <(

practitioners. Specific cases for e.g. victim of rape, mentally unfit, etc.
• For foetal abnormalities the upper limit of 24 weeks has been done away with, can abort later too, :::c
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but a permission of a state appointed medical board is necessary.
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• Women and husband replaced by women and partner, this has to be secret abortion and would be
punishable if privacy is breached. z
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• An issue with the amendment is that with poor doctor-patient ratio in the country, women would still
be compelled to go the auxiliary midwives and nurses for abortion.
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• Another issue is that women's agency i.e. right to decide what happens with her body, has been ::::)
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 robbed by a medical board.

Article 2 1A: � 01:17:36

• The State shall provide free and compulsory education to all children of the age of six to fourteen years
in such manner as the State may, by law, determine.
• It deals with Right to Education, added by 86th Amendment 2002.
• It is non-self-executory and enactable by law.
• It became a right in 2002 but was made through law in 2009. NCRWC recommended that the age 6-
14 should be changed to 6-18 for SC, ST and women.

Note: This provision was already present inDPSP but was not justiciable, today Article 45 under DPSP talks
about early childhood care and education since the provision for school education has been incorporated in
part Ill i.e. fundamental rights.

Article 22: � 01:21:37

• It deals with arrest or detention.
• It talks about right of persons (citizens and non-citizens) arrested which are:
► The person has the right to be informed about grounds of arrest.
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► He has the right to consult a legal practitioner of choice.
w ► He has the right to be presented before the judicial magistrate within 24 hours. The time will not
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 • These three rights can be denied to those declared enemy aliens, and those arrested under
preventive detention laws.

Note: Enemy aliens are subjects of a nation with which we are at war.
Even those people who live in India
who engage in business or trade with subjects of the nation with which we are at war would also be
treated as enemy aliens.

Preventive detention: 0 0 1:27:57

• Detention is of two types: punitive detention and preventive detention.
• Punitive denotes a punishment for a crime after the legal process, whereas preventive is condition
where there is suspicion of a crime, and the person is likely to commit the crime in future. Those who are
suspected can be detained and hence the person would not have the three rights mentioned under
article 22.
• It was brought during British rule, one safeguard that exist is that there should be a law to enact this,
• The person can be arrested only on specific grounds mentioned in Union list in entry 9 namely:
defense, foreign affairs, security of India.
• In concurrent list namely: matters related to public order, security of a state, maintenance of essential
supplies and services.
• The centre can make laws for both union and concurrent list while state only for concurrent list, thus N
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centre has more grounds under its ambit. w
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Note: No such law can provide detention beyond 3 months, unless the government acquires an opinion of an �
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advisory board consisting of members ranging from present or retired High Court judges or qualified to be C
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High Court judges (i.e. lawyers). <(

• This lawyer provision is prone to misuse. Thus NCRWC said that it should consist of only sitting High �
Court judges to impart fairness and objectivity to the process. [
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• But how long can a person be detained, NCRWC advised a cap of 6 months. N
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• By the 44th amendment act the 3 months detention period was brought down to 2 months, but no ...I
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date had been appointed to bring this into effect. Hence, it is yet to be operationalized.
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• But parliament can also make laws under Article 22 (7) (a) as it mentions that in certain specific cases <(
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the advice of the advisory board will not be needed.
• It also does not give a categorical timeframe for a person in detention to be informed about the :::c
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reasons for his detention.
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Laws authorizing preventive detention: z

w
• The Preventive Detention Act, 1950, which expired in 1969
• Maintenance of Internal Security Act, (MISA) 1971 repealed later in 1978
z
• The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ::::)
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 (COFEPOSA)
• National Security Act, 1980;
• Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities act, 1980
• Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) repealed in 1995
• Narcotic Drugs and Psychotropic Substances Act, 1985
• Prevention of Terrorism Act, 2002 (POTA), repealed in 2004.

Though the courts have termed it necessary evil, but they are undemocratic nevertheless, it can also
lead to arbitrary use or abuse.
• When a person is arrested preventively, his right to Article 2 1 is suspended, after the 44th amendment,
even in emergency that article can never be suspended, but it can be suspended under preventive
detention.
• In case of preventive detention, Article 2 1 can be suspended even during normal times, leading to a
semi emergency like situation according to constitutional experts.
• Thus it is violative of the basic structure.

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 r:1::1 FUNDAMENTAL RIGHTS - ARTICLE 23
� & 24, ARTICLE 25 & ARTICLE 26(PART - 1)
Right against Exploitation 0 00:00:10
Article 23:
• Prohibition of traffic in human beings and forced labour (Article 23):
o (1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited, and
any contravention of this provision shall be an offence punishable in accordance with law.
o (2) Nothing in this article shall prevent the State from imposing compulsory service for public
purposes, and in imposing such service the State shall not make any discrimination on grounds
only of religion, race, caste or class or any of them.
Explanation:
• Traffic in human beings includes treating humans as commodities. This also includes immoral traffic
like trafficking for sex work, prostitution etc. Begar is a form of forced labour.
• This right would also be executed through Law, thus it does not execute itself. Immoral Traffic
Prevention Act, 1956 and Bonded Labour Abolition Act, 1976 were enacted to execute this right.
• According to the Supreme Court, even if someone is paid for the forced labour, it is still a violation of
Right under Article 23 ( 1).
• In Clause (2) the term gender was not included as there can be need of compulsory military services
during war or any other emergency, and at that time the state can discriminate based on gender/sex as
per this article.
li:: • Clause (2) does not mention the requirement of law for its execution, thus only by executive action this
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expression "by law" is not mentioned in section 2, yet the compulsory service cannot be implemented
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o Concerned law regarding sex work is Immoral Traffic Prevention Act, 1956. Following activities
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N ► Running a Brothel.
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....I ► Soliciting prostitution in public places like Hotel, Guest house etc.
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o The Act does not explicitly mention soliciting prostitution in private confined of one's home as a
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<( crime. Different experts have different opinions on this issue.
o There is debate of legalizing the sex work in India. In many countries like Denmark, Germany, New
I
(!) Zealand etc. the substantial aspect of sex work have been de-criminalized.
....I o Pros of legalizing and decriminalizing sex work:
► If it is legalized, better regulation can be ensured. As currently almost all the sex work took place
z
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:[ in secretive manner and by legalizing all these activities will be on surface and state will be better
able to regulate this industry.
z
:::, ► State will be in better position to check the trafficking of women and forced prostitution.
u..
 ► The sex workers will be better protected from STD's, AIDS etc. by the increased access to
information by the government.
► Sex work will also be covered under the Labour Laws and through the various social protections.
► There may be decrease in case of Rapes, Sexual assaults etc.
► After providing legal status there will be no requirement of middlemen who often exploit the sex
workers.
► Improvement in hygiene, living conditions etc. can be ensured.
o Cons of legalizing and decriminalizing sex work:
► This will lead to spurt in demand of sex workers which may further increase the illegal sex
trafficking.
► There will be further enhancement of commodification of women.
► It may send wrong message that the government is encouraging or promoting sex work and
commodification of women.
o Instead of legalizing sex work in India, focus should be given on improving their conditions.
o The large proportion of sex workers are not engaging the sex work by choice; thus they should be
treated as victims rather than criminals.
o In many cases of rape of sex worker, the enforcement agencies often do not give enough attention
in investigating such case. Hence patriarchal attitude and inhuman treatment towards sex workers
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should be demoted.
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Article 24: � 00:28:20 w
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• Prohibition of employment of children in factories, etc. (Article 24):
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o No child below the age of fourteen years shall be employed to work in any factory or mine or <(
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engaged in any other hazardous employment. Ill
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• The list of hazardous employment is mentioned in the Child Labour (Prohibition and Regulation) Act,
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1986. 18 occupations and 65 industrial processes are listed under this Act. <(
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• Under the Act, employment of children in occupation other than hazardous employment is allowed. N
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But this conflicts with the Rights provided under Right to Education Act 2009 (Article 21A) (Free and (Y')
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compulsory education to the children of 6 to 14 years of age). w
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• Due to this, the law was amended in 20 16 and the amended law provides for the prohibition of Child
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Labour (Under 14 year) in all type of employment (hazardous as well as non-hazardous) except the <(

employment in:
o Family Run enterprises.
o Audio Visual Entertainment industry.
subject to the condition that it does not interfere in their studies. z
w
• The Act also introduced a new category of Adolescents (14 - 18 years of age) and employment of :::E

adolescents in hazardous occupations is prohibited. The list now only reduced to primarily 3 industries:
z
o Industries using Inflammable substances. ::::)
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 o Explosives industry.
o Mines.

Right to freedom of Religion (Article 25 to 28)

Article 25: 0 00:39:38

• Freedom of conscience and free profession, practice, and propagation of religion (Article 25):
o (1) Subject to public order, morality, and health and to the other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practise, and
propagate religion.
o (2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law -
► (a) Regulating or restricting any economic, financial, political, or other secular activity which
may be associated with religious practice.
► (b) Providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus.
Explanation I:
The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II:
li:: In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to
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persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions
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Explanation
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Supreme Being is completely up to him/her. The person is completely free to either believe in any
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....I Supreme Being (god/religion) or do not believe in any supreme being.
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• Right to profess includes the freedom to openly proclaim the choice of religion. It can be done either
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<( verbally or through visible representation like wearing Turban, Crucifix, Kirpan etc.
N • Right to practice provides freedom to perform practices like rituals, ceremonies etc. which are integral
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M to their religion.
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....I • Right to propagate religion: It gives freedom to propagate the teachings, values etc. of a particular
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religion. There are many issues in the interpretation of this right.
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<( o The most controversial question regarding this is whether Right to Propagate includes Right to
Convert or not.
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(!) o In Stanislaus Case, 1977 the Supreme Court observed that the Right to Propagate religion does
....I not include the Right to Convert. It also ruled that the conversion to any other religion should not

z be by force, fraud, or allurement.

w
:[ o Issues with the judgment:
► If the Right to propagate religion does not include the Right to convert then the Right to
z
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u.. Propagate religion is a hollow/illusory right.
 ► The only intention behind propagation of the teachings of religion is to encourage people to join
their religion.
► If religion is a matter of conscience then no amount of force, fraud or allurement can change that.
Proving and defining that the conversion happened by force, fraud or allurement is very difficult.
o Many states have laws prohibiting forceful religious conversion. Gujarat government has recently
amended its religious conversion law and the amended law have following important and
controversial provisions:
► The priest who is involved in conversion has to take permission from the DistrictMagistrate.
► The person undergoing conversion has to intimate the same to the DistrictMagistrate.
► It also criminalizes conversion through inter-religious marriages by force, fraud and allurement.
Though the problem of defining Force, fraud and allurement remains unresolved and it is also
difficult to choose to whom the burden to prove use of force, fraud or allurement be assigned.
► State can order a police inquiry for such a case.
► Family of the person can file FIR for such conversion.
o Gujarat High Court stayed the implementation of some of these provisions due to many
discrepancies in interpretation of these provisions.

Article 26: 0 01:11:28

• Freedom to manage religious affairs (Article 26): �
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Subject to public order, morality and health, every religious denomination or any section thereof shall �
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have the right - w
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o (a) to establish and maintain institutions for religious and charitable purposes.
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o (b) to manage its own affairs in matters of religion. <(
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o (c) to own and acquire movable and immovable property; and Ill
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o (d) to administer such property in accordance with law. w
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Explanation
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• In this right collective/group right is given to decide the religious customs, ceremonies, and religious <(
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practices etc. which have been given for individuals under Article 25 as Right to Practice religion. N
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• Nikhil Soni Case, 2015: (Y')
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o In this case the Rajasthan High Court banned a Jain practice called Santhara. Santhara is practice w
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of starving unto death practiced among Jains.
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o According to the Court, the people have the right to practice religious practices but it is subject to <(

the some restrictions provided in Article 25 under which the right cannot violate any other right
provided in part Ill of the Constitution. This practice of Santhara violates the Right to Life under
Article 2 1 and it is also invoking section 309 (Attempting suicide) and section 306 (Abatement to
suicide) of the IPC.
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right to die but it includes Right to die with dignity and Santhara facilitates the Right to die with
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dignity. ::::)
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 o The court further said that the Santhara is not an Essential Religious Practice for the Jain religion.
• The Supreme Court stayed the order of Rajasthan High Court. The court on multiple occasions ruled
various conditions based on which the religious practices are allowed. These conditions are:
o The practice should not be in larger public interest.
o It should be in conformity with the reformist spirit of the constitution.
o It must be Essential Religion Practice (to be decided by courts).
• Essential Religion Practice test:
o Court does not have sufficient knowledge to decide the essentiality.
o Court tends to provide privilege to certain practices over other practices.
o Court tends to give black and white answers to those questions which are always subject to debate
and always have conflicting opinions.
• Women's entry into shrines:
o Important temple entry movements regarding women's entry are Haji Ali, Shani Shingnapur and
Sabarimala.
o The Bombay High Court in 20 1 6 allowed entry of women in Shani Shingnapur Temple.
o Sabarimala case reached the Supreme Court in 20 17 and in 20 1 8 the court upheld the entry of
women in the temple. After the review petition was filed the Court set up a larger bench in 20 1 9 to
review the issue.
li:: • The dynamic interplay among the 4 important factors give rise to many issues, these factor/rights are:
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iD" o Rights to individuals against the State.
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o Group right against the State.
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LO • Right to worship is an implicit part of Right to religion.
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loud speakers in Islam) is Essential religious practice or not. The Court Ruled that Azaan is essential
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<( religious practice but use of loudspeakers for Azaan is not essential practice and can be banned
N especially during COVID pandemic. During COVID period the Azaan through loudspeakers may
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 r:7= FUNDAMENTAL RIGHTS - ARTICLE
� 26 (PART - 2) , ARTICLE 27 & 28
Article 26 (Clause c and d) : 0 00:00:10
• These clauses include right to own and acquire movable and immovable property; and right to
administer such property in accordance with law.
• States right to acquire the Private properties:
o The 44th Constitutional Amendment Act, 1978 removed Right to property as fundamental right
provided under Article 19 (1) (f) and inserted it as legal right under Article 300A. But the right to
property is still guaranteed to the religious denominations under Article 26.
o This means that the 'eminent domain right' of state to acquire private properties for the public
purposes is not applicable to religious properties.
o The Courts ruled that the state can acquire the religious property, but it has to suitably rehabilitate it
in a manner that will not threaten the survival of the shrine.
• Regulations of the temples:
o East India Company in the 19th century started regulating the Temples of South India due to
immense wealth that is being held by these temples. For this in 1817, Madras Regulation Act was
passed.
o In 1840 due to the resistance by Christian missionaries the temples were released from the
regulation.
o From 1900 onwards the British Government realized that these temples are also a place of social
and nationalist activities (Anti-government propaganda). In 1925, Madras Religious and
Charitable Endowments Act, was passed which allowed control of religious shrines. Because of
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opposition from minority communities the government excluded minorities from this Act and the
"N Act became Madras Hindu Religious and Charitable Endowments Act, 1927.
w o After Independence the regulation continued with the same Act in the form of Madras Hindu
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u Religious & Charitable Endowments Act of 1951. This Act was challenged in Court in the:
� ► Shirur Mutt Case 1954: The apex Court upheld the law. The Court ruled that Article 25 gives
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N° state power to manage and regulate the secular activities by law and management of donations,
Ii: economic activities of the temples, management of properties etc. are secular activities and not
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religious practices. It also mentioned that the State will not interfere and decide the religious
practices. Government was of the view that religious authorities do not have experience and
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o After 1954 there took place rationalization of Hindu religion by the courts in the form of tests of
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<( essentiality, attack on superstitions etc.
o Multiple Temples like Tirupati, Jagannath, Vaishno Devi, Badrinath and Kedarnath etc. are managed
I
(!) by the Statutory Boards/trusts which are controlled by the state. This led to Nationalization and
...J bureaucratization of the Hindu Shrines.
z o But in case of Sikh religion the Gurdwaras are regulated by the committee (Shiromani Gurdwara
w
:[ Parbandhak Committee) having members elected by the members of Sikh religion under
Gurdwaras Act of 1925.
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:::, o In 20 19 Uttarakhand Chardham Devasthanam Management Act, 2019 was passed which
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 includes management of Kedarnath, Badrinath, Yamunotri and Gangotri Temples by a Statutory
Board. The Act defines these temples as Public Temples.
o Courts denied Hinduism the status of a religious denomination by calling it a way of life due to the
absence of features of a religious denomination. Due to this, it has been justified that the temples of
Hindu religion are Public Temples and should not be managed by the religious authority. The
features are:

Absence of I t does not Absence of N o si ngle

No co m m on
com mon set believe i n o n e one centra l centra l
set of rituals
of beliefs God scri pt u re Authority

o Court denied the status of religion to various small sects like Arya Samaj, Ramkrishna Mission etc.
and considered them a part of Hinduism.
o Due to government interference in the Temple management, corruption has been reported from
these shrines.
• Ramesh Prabhoo case, 1996:
o The Court said that Hindutva like Hinduism is a Way of Life. There was opposition to this judgment
as many experts believe that Hinduism is inclusive and a way of life, but Hindutva is exclusive in
nature which excludes many other religions from its fold. They believe that Hindutva is a political
ideology, and it cannot be considered the same as Hinduism. Many attempts were made to make
the court revisit this judgment.
• In 20 11 the Kerala High Court had taken away the management of Padmanabhaswamy Temple of CX)
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Kerala from Travancore Royal Family and gave the management to a Board. The Supreme Court, as an all
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exception to its earlier stands, restored the management right of Travancore Royal Family in 2020. w
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Article 27: 0 00:52:37 �
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• Freedom as to payment of taxes for promotion of any particular religion (Article 27):
o No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated
in payment of expenses for the promotion or maintenance of any particular religion or religious
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denomination. U)
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o Government provides many types of support to religions like Haj Subsidy, Pilgrimage support to
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Char Dham Yatra etc. but it cannot collect any dedicated tax specifically for maintenance of any <(

particular religion.
For example, during Mughal period Jaziya tax was imposed for promotion of a specific religion
(Islam), this type of tax is non-constitutional and not allowed under Article 27. ...I

o The Court said that collection of fee from the pilgrims visiting a particular shrine and proceeds of z
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which is being used for the management of that particular shrine, is allowed and it does not violate �
Article 27.
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 * Important Information
H ey Subsidy,
o Hey is an annual Islamic pilgrimage to Mecca. Saudi Arabia (holy shine of Islamic Religion).
o It was introduced in i,32 by the British.
o In Rafiq ue Bhikan Case. 2012 the Court ruled that the Hey subsidy should be phased out within
10 years. As per the Court. according to Islamic Law the Hey should be performed by the
pilgrims with the money they themselves have earned. Hence the use of government .f'unds
makes this practice un-lslamic in nature.
o Government phased out the subsidy in 2018 ..

Article 28: 0 01:00:28

• Freedom as to attendance at religious instruction or religious worship in certain educational
institutions (Article 28):
o (1) No religious instruction shall be provided in any educational institution wholly maintained out of
State funds.
o (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State
but has been established under any endowment or trust which requires that religious instruction
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shall be imparted in such institution.
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"N o (3) No person attending any educational institution recognised by the State or receiving aid out of
w State funds shall be required to take part in any religious instruction that may be imparted in such
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� premises attached thereto unless such person or, if such person is a minor, his guardian has given
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N° his consent thereto.

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o Whether religious instruction be provided in education institutions?
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o Owned and administered by the State: No religious instructions can be provided.
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(!) o Aided and recognized by the State: Instructions can be provided but no student can be compelled
...J to attend those instructions without their consent (for minors the consent of their parents is
z needed).
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:[ o Institutions set up by Charitable/religious Endowments: Instructions can be provided, and
students can be compelled to attend such instructions even if the institution is administered by the
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Some important cases and issues:
• Aruna Roy Case, 2002:
o It was the case registered against the National Curriculum Framework for School Education
which provided for religious education.
o Government justified that there is no provision of religious instructions but by religious education
the intention is to impart knowledge about all the religions to enhance student knowledge and
provide value-based education e.g. Teachings of Nanak, Swami Vivekananda and Jesus etc.
o The court also accepted this framework and emphasized the distinction between religious
instructions and religious education.
• DAV College vs. State of Punjab, 1971: The held that there is nothing wrong in teaching the sayings
and teachings of Guru Nanak in education institutions.
• Prayers in Schools:
o Many cases have been filed against the practice of reciting prayers taken from Sanskrit Scriptures,
Upanishads etc. in schools prayers.
o These cases have been filed based on following arguments:
► It violates Article 28.
o These are religious instructions.
o It is against scientific temper and rationality.
• There are many Atheists who do not want to recite such prayers. 00
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o Argument in favour: all
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prayer affects rationality is very vague. �
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• The Morning Prayer is part of Indian culture and tradition.
o The prayers in school should not be considered as religious instruction and there should be efforts
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to develop an all-faith prayer or there can be recited prayers from all the religions on dW 0 0 l :22:10 rt.
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Mob Lynching: w
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• Even if it has been known that crime is committed by someone, it does not give to anyone the right to
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take the law into their own hands. In such cases there should be a Rule of Law. <(

• Due to high incidences of lynching, government formed two committees in 20 18. Nothing substantial
has come out of these committees. Many states like, Manipur, West Bengal etc. have tried to pass the
law to check mob lynching but these laws were reserved for the President by the Governors and -I

President have not taken decision regarding this yet. z

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• Tehseen Poonawalla Case, 2018 : :::E

o Court ordered to assign nodal officer in every district of the rank of Superintendent of Police and the
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nodal officer should form a task force and through this task force take all required measures to curb ::::)
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 mob lynching.
o State government will identify Areas/district/TehsilNillages where mob lynching has taken place or
Areas/district/TehsilNillages which are sensitive. Special focus should be given to these areas.
o Nodal officers will be required to have regular meetings and must regularly review the situation.
o The DGP will have to take review meetings with nodal officers on a regular basis.
o Dispersal of mobs is the responsibility of police officers. And the officer who will not perform his
duty will face punitive action accordingly.
o Central and State government should coordinate for curbing mob lynching.
o Government should go for large scale campaigns through various media platforms for awareness
generation and warnings.
o Government should take steps to curb such messages on social media which promote mob
violence.
o There should be immediate registration of FIR and investigation in a time bound manner and to be
supervised by the nodal officers. There should be special designated courts for such cases and trials
should be completed within 6 months.
o Also instructed states to start schemes for the compensation to the victims of the mob violence,
their families etc. � 0 1:32:27

Babri Masjid issue:

• Places of Worship Act, 1991:
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According to this, whatever was the character of the religious shrine on 15th August 1947 will continue
"N to be the same. Nobody can convert one religious shrine into a shrine of another religion. It excluded
w the Babri Masjid from its purview as the case regarding this was subjudice.
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u This Act was challenged based on following arguments:
� o The cutoff date is arbitrary.
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N° o The character of shrines before independence was decided by the British.

Ii: o It stops the various religions from claiming those sites which were converted to other religion's
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shrines in the past.
• The lssue:
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...J o Babri masjid was constructed in 1528 by Mir Baqi with Babur's order.
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o In 1949 there was an attempt to place Ram idol on this site.
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<( o The Supreme Court formed a constitutional bench for title suit of Babri Masjid site.
► In the judgment the Court accepted that placing Ram idol in 1949 and destruction of Babri
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(!) Masjid in 1992 were illegal acts.
...J ► The Court said that evidences given by the Archeological Survey of India are inconclusive. As ASI
z had confirmed that there was another structure on which the Masjid was built.
w
:[ ► Court accepted that the Mosque has been existing on that site for the last 500 years.
► The possession of site to be given to Hindu organizations, as the Muslim Organization were not
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u.. be able to prove continuous and exclusive possession of the site before 1856.
o There are many legal discrepancies in the judgment:
► There is a time limit up to which case related to possession of property can be filed.
► When any case is subjudice then the status quo must be maintained till the time the judgment is
given. Any forceful occupation of property weakens the claim of the party in the Court. By
demolition of Babri Mosque the Hindu Side showed aggression even when the case was in the
Court. Despite this the possession has been given to the aggressive side.
o At the end both the communities have acted maturely and respected the judgment which led to
peaceful resolution of matter.

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 � SECULARISM AND COMMUNALISM
� IN INDIA (PART - 1)
Secularism
Introduction: 0 00:00: 10
• A British Social reformer named George Holyoake is credited to be the first person who used the term
Secularism in the 19th Century.
• It is a system/arrangement of ordering or organizing communities, states and nations during modern
times.
• Key features of Secularism:
o State-Church (any organized religion) separation: It means the State does not subscribe to any
organized religion and any organized religion does not have influence over the State. This element
started developing in the 18th century in the western societies, especially in Europe.
o Freedom of Belief and Faith: Everyone has the freedom to follow and practice the religion/belief of
their choice.
o No discrimination between people/citizen on the ground of Faith and Religion.
• These features describe the ideal goal that each State should strive to achieve. As presently, there is no
State in which these features are fully implemented.

Secularism in France: 0 00:09:45

• Until the late 18th century (Till French revolution), France was governed by the Autocratic rulers and at
the same time there was rule of the Roman Catholic Church. The Church used to perform many
administrative functions like registration of birth, deaths and marriages etc. and many of the Laws
implemented by the Autocratic rulers were inspired by the Christian Morality. The people were
oppressed by the rulers as well as the Catholic Church.
• The French revolution was as much against the Church as it was against the Autocratic Rule. As there
was antipathy towards the State as well as towards the Church.
• The changes that took place during the French revolution are often referred to as De-Christianization
b:: of French social, political and economic life. During this period (especially between 1789 and 1799)
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land of the Church which was earlier the largest land holder was confiscated and other orthodox
i5 influence of the Church was reduced.
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z • In France the people supported secularism to protect themselves from religious dogmas.
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z • Features of Laicite concept of Secularism:
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the USA the religion is protected from the State and in India protection is given to one religion from
another religion.
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Vl o Freedom to practice one's religion: Under this type of secularism, the religion is a private affair and
 is not linked to the State.
• In 2004, a law was passed which banned wearing headscarf and other types of headgears which
conspicuously tell about one's religion, by the School children.
• In 2010, another law was passed banning veils in public places, which is also against the Burqa
practice followed by Muslims. Thus, in France the religion is private affairs and the Secularism there is
anti - religion.

Secularism in USA: � 00:30:21

• In the USA during the American Revolution there was no anti-religion character. American society is
deeply Christian.
• The American constitution mentions that all men are created equal by the creator. Hence the word
creator is mentioned here, and this denotes the religious character of American society.
• In 1791 Bill of Rights was introduced. The First Amendment mentioned that the legislature cannot
make any law respecting the establishment of any religion or free exercise of the religion.
• Features of secularism:
o State has no religion.
o State should not promote/discriminate against any religion.
• In France the state is anti-religion while in the USA the state has a neutral stand towards the religion. In
case of any anti religion act by the State the society develops reaction against.
• In the USA at many instances the Courts have interfered in religious affairs and moulded Secularism in
the country with time.
• Hence in the USA secularism is based on protection of religion from State oppression.

Secularism in India: � 00:40:10

• Since the Ancient period India has had large spiritual diversity. During the Ancient time the priestly
�
class was highly respected by the rulers but the priestly class did not have any direct State power or
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administration power unlike the case of Europe.
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• In Ancient times almost all the kings gave patronage to one or the other religion but they remained
tolerant towards the other religions except in a few cases. z
• In the Medieval period many Islamic rulers followed religious oppression policy but despite this the �
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State-Church (organized religion) relation in India was similar to the relation that existed in Europe. ::i
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• Many of the medieval rulers like Akbar followed the policy of tolerance towards the other religions e.g. :::>
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Akbar abolished the Jizya tax. The development of Sufism and Bhakti also promoted tolerance and �
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peaceful coexistence. Sikhism also developed during the 15th century. u
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• By the 18th century India had already developed a very long heritage of active management of z
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diversity in the country. �
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• The British, despite being deeply involved with the Church in England never pursued religious goals as 0::
State policy. Though they allowed the Christian missionaries to spread Christianity in India. The British ::S
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introduced rule of law and further strengthened Secularism. w
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 • But from the late 19th century the British started promoting the Hindu-Muslim divide which led to the
partition.
• After Independence India adopted the Secularism due to following reasons:
o The horrors of partition influence the leaders for the need of Secularism.
o 1940's and l0S0's was the peak of secularism globally.
o Gandhi and Nehru were deeply secular and influenced the adoption of Secularism. The idea of
Mahatma Gandhi's Secularism derived from the idea of Tolerance, Peaceful coexistence etc. while
Nehru emphasized on modern western ideas and was against the dominance of organized religion.
• Hence in India the people do not want one religion to develop antipathy against another religion due to
the experience of incidences like Partition.
• Features of Indian Secularism:
o No Theocracy/no state religion.
o It is neither anti-religious (France) nor irreligious (USA).
o No religious Institution should have influence on State matters.
o State can interfere:
► To promote all religions equally.
► To regulate the non-religious aspects.
► To reform religion and to bring about social welfare.

• Why Secularism?
o It promotes individual freedom in the religious sphere. As per the 'Harm Principle" of J. S. Mill
everyone should have individual freedom and the freedom should be curtailed only in the case
when it is likely to harm others.
b:: o It promotes fairness in society. The secularism is fairer than the other alternatives available like
� Theocracy. In John Rawls Theory of Justice, thinking under the 'veil of ignorance' has been
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i5 emphasized. Under the veil of ignorance, the person is ignorant of the type of gender, religion, caste
� etc. assigned to him/her, thus the person does not know the place which he/she is going to take in
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:E the society. Under this ignorance the kind of society the person wants, and imagines will always be
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a fair society. In terms of religion the person will realize that a fair society should not have dominance
z of any one religion, thus there is need for secularism for the society to be fair.
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:E o It promotes Peace. If there is communalism in the society, there will be either physical or mental
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z o It promotes modernity. As in the presence of old orthodox dogmas, modernity cannot be achieved.
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:E There is a need for secularism to realize modernity.
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o It promotes Democracy. Secularism allows equal participation of all communities in the social,
u economic and political life which is an important feature of true democracy.
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 Note :

When majority of the popu lation practice com m u nalism it is called Majority Com m u nalism while
com m u nalism practiced by m i nority com m u nities is called Minority Com m u nal ism. Both the types of
com m u nalism are dangerous for the society but the Majority Com m u nalism is worse. This is d u e to
the reason that the Majority Com m u nalism can be easily passed off as National ism because it is
practiced by majority of the popu lation of the nation .

Problems in Secularism in India:

• The concept of Secularism is narrowly conceived.
o Indian Secularism despite being different from Secularism in France and USA, the conception of
Secularism in all of these countries is based on the attitude of the State towards religion. Thus, the
State centric perspective of secularism is narrow.
o The goal of Indian Secularism is narrowly conceived. The goal is to promote religious tolerance and
demote communal disharmony. The concept of Tolerance is very insecure and can be exploited at
any point of time. Instead of tolerance the focus should be on promoting acceptance. By accepting
the fact that all religions lead to the same goal despite being different paths, communal harmony
can be ensured. For developing acceptance there requires scientific temper. Hence the focus should
be on promotion of scientific temper.
o Secularism mainly considers the type of com munalism which is concerned with the inter­
faith/Inter-religion tensions, but the com munal tensions also exist within the same religion/faith
also. This narrow conception of com munalism and Secularism ignores the tensions between
different castes systems, sects etc. within a single religion.
• Extreme Religiosity:
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o The core philosophy of all the religions is a similar set of values like Humanity, Compassion, and �
u niversalism etc. The only values which differentiate one religion from the other are the peripheral
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values like rites, rituals, type of shrines, costumes etc. Overemphasis on the peripheral values leads
to extreme religiosity and com munal disharmony. Excessive focus on peripheral values fu rther z
widens the gap among different religions. The focus should be on the core values. �
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• Absence of legal and institutional Framework to check communal violence and promote national <(
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harmony: :::>
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o There is no dedicated law against com munal violence. �
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o There is also absence of any dedicated organization/institution for comm unal harmony. u
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o There is the National Integration Council (NIC) set up by Pandit Nehru in 1962 which includes z
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members from all the spheres of society in India and the Council is chaired by the Prime Minister. But �
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this council was not very active, regular and effective in realizing its objective. Between 1992 and 0::
2005 not even a single meeting was held. It was revived in 2005 but still very few meetings were
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 held every yea r. This council is a type of conference a n d does not have rea l power.
o The Punchhi Commission on Centre-state Relations (2007) suggested some reforms reg a rd i n g
N I C w h i c h a re:
► N IC should meet twice a yea r and if not twice then it should defi n itely meet at least once a yea r.
► It should be g iven a clear m a n d ate.
► There should be a yea rly p l a n of action a n d it should be em powered to i m plement that p l a n .
o I n 1992 a n a utonomous body under the M i n istry of Home Affa i rs na med N ational Fou n d ation for
Com m u n a l H a rmony was set u p. Pri m a ry objectives a re:
► Support to the ch i l d ren who a re victi ms of com m u n a l violence.
► Funding fel l owsh i ps, Scholars h i ps etc.
► Confer awards to I n d ivid u a l s/org a n i zations.
• Social Institutions have failed i n provid i n g va l ues a n d education on tolera n ce, soci a l h a rmony,
accepta nce etc.:
o Fa m i ly as a n institution fa i led to teach these core va l u es.
o Education institutions a lso fa i led i n this task.
o Pol itical institutions to ca ptu re pol itica l power performed i n a way that fu rther p romoted com m u n a l
violence a n d disha rmony. Com m u n alism is a typica l homogen izing concept with t h e g o a l of
ca ptu ri ng politica l power. Consideri n g religions homogenous for presenti ng them in the form of
confl icti ng com m u n ities is being done for ca ptu ri ng power. By this the heterogeneity of rel i g ions is
being ignored.
Com m u n alism should be cu rbed by the seco nd rou n d of l a rge sca le soci a l constructive work as done by
M a h atma G a n d h i d u ring the Freedo m movement.

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 � SECULARISM AND COMMUNALISM
� (PART - 2) , ARTICLE 29 & 30
Problems in Achieving Secularism in India (Continued) : 0 00:00:10
• Right wing Propaganda and Demonization of Minorities:
o This has acquired virulent form in recent past and incidents like lynching, oppression in the name of
Love Jihad, Cow vigilantism etc. have increased in the country.
• Imbalances in the development:
o Imbalances in development between different communities lead to the feeling that adequate
attention has not been given to development needs of some communities.
o This feeling gives rise to insecurity and communal behavior. It is the duty of the State to give equal
attention to all the communities in terms of developmental interventions.
o In 2006 the government appointed Sachar Committee to look into the socio-economic condition of
Muslims. The committee mentioned in its report that the accusation of Muslim Appeasement is a
myth. It said that in terms of socio-economic parameters the Muslim Community's status is worst
among all major religious communities and they were slightly better than only SC/ST's. And it
cannot be the case if there would have been any Muslim appeasement.
o This type of neglect in terms of development erodes the sense of belongingness and oneness
among less developed communities.
• Excessive focus of Singular Identity: 0 00:10:00
o Amartya Sen made the argument that at any given point of time a person has multiple identities like
Religion, caste, profession, Gender, linguistic etc. In one form or the other everyone is a minority in
the country for example a person may come under majority in terms of religious identity but that
person will come under minority in terms of his/her linguistic identity or profession or any other
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communal tensions.
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o Amartya Sen also mentioned that excessive focus on singular identity also affects the Global
<( Justice Movement. If people are too much identified with singular identity then they cannot be able
N to participate in the justice movements which are focused towards ending injustice in the world.
Ii: They will not be able to work beyond the narrow conception of their identity and they will only serve
l the people of similar identity. For example most of the NGOs do not discriminate between people
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framework at National, State, District and Village level.
o Legal framework should be put in place and a Communal Violence Bill should be passed. Such bill
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 ► Prevention of Communal Violence.
► Punitive measures.
► Reparations and compensation.
o Amend the RPA, 1951: If the Political Parties are repeatedly violating the Undertaking/Oath it
submitted to the Election Commission then by amending the RPA, 1951 the Election Commission
should be empowered to de-register or de-recognize Political parties.
• Long term steps:
o There is a need for constructive work for social engineering. Approach the masses through various
mediums for transforming the attitude of the society.
o Educational system should be used positively for focusing on inculcating the value of national
harmony and Integration.
o Voluntary Organizations/NGOs/Civil Societies etc. should be involved in such activities positively.

U.S. Commission on International Religious Freedom:

• This is a government autonomous body which gives suggestions to Congress and the U.S.
government regarding the status of secularism in different parts of the country, Minority persecution,
Oppression etc.
• It maintained two types of list: Special Watch list and Country of Particular Concern (CPC) list. Under
SPL countries where some problems regarding secularism are present are included. If the problems
are very severe like persecution of minorities etc. then the country is included in the CPC list.
• In 2020 the USCIRF recommended that India should be placed in the CPC list but the US government
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rejected the proposal. But it may hurt India's International image. (Y')
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Cultural and Educational Rights (Article 29 and 30) 0 00:40:12

For the minorities there are two types of provisions in the Constitution. Those provisions which are for �
everyone but carry special significance for minorities can be categorized under Common Domain, for �
example Secular word in preamble, Article 14, 15, 16, 25, 26, 27, 28, mention of liberty of faith and worship �
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in preamble, Article 46, Duty of common brotherhood and Duty for rich heritage and composite culture etc. ::i
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Examples of Special Domain are Article 29, Article 30, Article 15 (5) and Article 25 (Wearing Kirpan). �
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the language spoken by them should also be recognized as the official language of the State then the 0::
President can direct the State government to do so, if he/she finds substantive merit in the proposal. ::S
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• Article 350A: It is the duty of every state to provide education in mother tongue at least up to the w
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 primary level to the children belonging to the linguistic minority of that state and such direction can be
issued by the central government to the state governments.
• Article 350B: It provided for creation of the office of Special Officer for Linguistic Minorities to review
the implementation of provision regarding linguistic minorities and for other related functions.
• There is a dedicated statutory body named National Commission for Minorities set up under National
Commission for Minorities Act 1992.
• There is another statutory body named National Commission for Minority Education Institutions set up
by National Commission for Minority Education Institutions Act 2004.

Article 29 and Article 30: � 01:00:30

• Protection of interests of minorities (Article 29) :
o (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve the same.
o (2) No citizen shall be denied admission into any educational institution maintained by the State or
receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Note:
In Clause 1 the term "Any section" implies that this right is available for everyone and not only to
minorities.

• Right of minorities to establish and administer educational institutions (Article 30):

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o (1A) In making any law providing for the compulsory acquisition of any property of an
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educational institution established and administered by a minority, referred to in clause ( 1), the
<( State shall ensure that the amount fixed by or determined under such law for the acquisition of
N such property is such as would not restrict or abrogate the right guaranteed under that clause.
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(Constitutional (44 Amendment) Act 1978).

l o (2) The State shall not, in granting aid to educational institutions, discriminate against any
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been demanded that the religious minorities should also be identified on a State to State basis. As
Hindu's are in Majority at national level but they are in minority in many States/UT's like Jammu and
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 o Hence to ensure that the religious minorities at state level get the benefits given to minorities, the
Religious minorities should also be identified on a State to State basis.
o Court has rejected this idea on the basis that the religions do not have borders and it does not
spread or limited to any specific region but linguistic communities are regionally confined. Hence
the Linguistic minority should be identified on a State to State basis and Religious minorities should
be identified on a national basis.
► Religious minorities in India are - Muslims, Sikhs, Christian, Zoroastrian (Parsis), Buddhist and
Jain (20 14).
► Some other sects like Lingayats (Karnataka), Bahai community also demanded such recognition.

• Issue related to Minority Education Institution: 0 01:16:34

o According to the Supreme Court all citizens have the right to establish and administer Education
Institutions, not only the minorities.
o Article 29 (2) mentions that there should not be any discrimination on the ground of religion in
providing admission to education institutions aided by the state. The very purpose of Minority
Education Institutions is to give preference to children of minority communities. Hence if Minority
Education Institutions receive any State aid then under Article 29 (2) it will not be able to
discriminate on the basis of religion which defeats the very purpose for which the Minority
Education Institutions are being set up. This issue was raised in the Apex Court also and the Court
ruled that:
► If a Minority Education Institutions is aided by the State then it is required to admit a reasonable
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percentage of children of non-minority communities. (Y')
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► Court authorized the State Governments to decide the percentage. en
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Education Institutions to ensure that merit criteria are being followed. u
► Unaided MEi's can have its own admission procedure but it has to be fair, open and transparent. <(

► The State can also lay out minimum qualification for teachers for both aided and unaided
Minority Education Institutions to maintain the quality and excellence in education. �
o West Bengal Madrasah Service Commission Act, 2008 provides for establishment of Madrasah �
Service Commission for appointing teachers in the aided Madrasahs in the State. This function of �
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appointing the teachers in MEi's has not been provided for in the earlier discussed judgment also. ::i
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The Supreme Court in 2020 upheld this Act and mentioned that for maintaining the quality and :::>
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excellence of education the teachers must be qualified. It also mentioned that for religious �
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education the Institutions are given adequate freedom for administration but for secular education u
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in aided institutes State can interfere as it did through this act. The Court said that MEi's are being z
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given the right to administer the education institutions, not the Right to mal-administer the �
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Institutions. 0::
o In a contrasting judgment in Pramati Case, 2014 the Apex court denied the implementation of 25% ::S
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reservation for students belonging to Economically Backward Classes in the Minority Education w
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 Institutions under the Right to Education Act, 2009.
o The objective of RTE Act 2009 is not only to provide education but to also make children from
privileged classes understand the reality of the society by sharing school space with students of
economically weaker sections. Hence this quota of 25% should also be applicable to Minority
Education Institutions. The institutions should at least provide such reserved seats to the students
of minority communities. Hence the Pramati Judgment should be revisited by the Apex Court.
o Minority Education Institution's status for Aligarh Muslim University:
► There is a case in the Court whether the AMU should be given status of Minority Education
Institutions or not. If any aided Institution is given such status then it can reserve 50% of the seats
for the minority community (Muslims in case of AMU) and the reservation provisions for the
SC/ST/0 B C are not applicable on such Minority Education Institutions.
► AMU was founded in 1875 as Muhammadan Anglo-Oriental College and it became a university
under an Act in 1920.
► In 1967 the Supreme Court said that it is not a Minority Education Institution.
► In 1981 Parliament amended the AMU Act and MEI status was restored.
► In 2006 the Amendment was struck down by the Allahabad High Court.
► This matter went to Apex Court and the Court stayed the judgment of Allahabad High Court. The
government presented an argument that the Institution Set up by the State cannot be given the
status of Minority Education Institution. The Right to set up such institutions has been provided to
minority communities only. The Supreme Court in 20 19 referred the case to a 7 Judge bench.
• Issue related to Government schemes for minorities:
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► It violates Article 15 (1).
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► There is the presence of the National Commission for Backward Classes for the weaker sections,
<( thus there is no need for the National Commission on Minorities.
N o Government opposed the case and said that the government schemes fulfill the reasonable
Ii: restrictions provided under Article 14. It also mentioned that these schemes are targeted toward
l the underprivileged people and women in the minority communities.
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 � RIG HT TO PROPERTY, ARTICLE 32,
=.at 33 & 34 & RELATED DOCTRI N ES
Right to Property 0 00:00: 10
Background:
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• Right to property was removed from the Fundamental Rights by the 44 Constitutional Amendment
Act 1 978. The original Constitution included following rights:
o Article 19 (1) (f): It included Right to lawfully acquire, hold and dispose off property subject to
reasonable restriction in public interest and in the interest of Scheduled Tribes.
o Article 31 (1): Under this no person can be deprived of his property except by authority of law. By
executive action the State can acquire the property as any other person by paying market value of
the property. But to compel the individual to sell the property the government needs law.
o Article 31 (2): The State can only acquire property for the public purposes and the State should pay
the compensation.
• For the development of rural areas after independence the government implemented Land reforms like
Zamindari abolition, Land ceiling, Land acquisition etc. For implementation of the Land Reform the
government needed to pay a large amount of compensation as per Article 3 1 (2) which was not
possible and feasible at that moment of time. For this the framework of Right to Property was
weakened in two ways - one by series of amendments in already existing sections and another by
adding new sections as exceptions to Right to Property.

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• 4 Amendment 1955: It amended Article 3 1 (2) and it added that the compensation cannot be
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compensation must be fair and just.
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• 25th Amendment Act 1971: In 31 (2) the word 'Compensation' was replaced by the word 'Amount'.
Still, the Court maintained that the amount should not be too low as would practically amount to
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� Exceptions to Right to Property: Following four main exceptions were introduced - 0 00:20:00
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o By this amendment there was added the 9th Schedule in the Constitution. As per 3 1 B, if a law is
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violating any of the rights in part Ill of the Constitution and is enumerated in the 9 Schedule then

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such a law would be immune from Judicial Review. And Article 13 (2) will not be applicable in such
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Cl. 9 h Schedule. The only protection in this case is that for listing any law in Schedule 9 there is need of
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Constitutional amendment by the Parliament, Thus States cannot include laws in the 9 Schedule.
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J: o Mainly Land reform Acts are listed in the 9 schedule but there are some other Acts also such as
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ct Tamil Nadu (Reservation) Act 1993,MRTP Act 1969 (abolished) etc.
 o I. R. Coelho Case (2007) : Question was raised that the Article 318 may also violate the Basic
Structure of the Constitution. In the Basic Structure doctrine, the Court said that no constitutional
amendment can alter the Basic Structure of the Constitution. Under this case the Court ruled that
those Laws in the Schedule 9 which are violating those elements of Part 1 1 1 of Constitution which are
held to be part of Basic Structure and included in the Constitution after April 24th 1973 (Date on
which the Basic Structu re Verdict a n nou nced) can be challenged in the Court and can also be
struck down by the Court.
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• Article 31C (Added by 25 Amendment Act 197 1) :
o According to this Article, if a law is made to give effect to Article 39 (b) and 39 (c) (Pillars of
Socialism) shall be immune from judicial invalidation and review even if they violate Article 14 and
19.
o These two clauses of Article 39 mentions that:
► (b) the ownership and control of the material resources of the community are so distributed as
best to subserve the common good;
► (c) the operation of the economic system does not result in the concentration of wealth and
means of production to the common detriment.
o The 3 1C was further amended by 42 nd Amendment Act 1976 and under this the protection in
Article 3 1C was extended to all Directive Principle instead of only Article 39 (b) and 39 (c). This (/)
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expansion was struck down by M i nerva Mills Case, 1980. It restored the protection to Article 39 (b) z
and 39 (c) only. 0:
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• Article 3 1 D (Added by 42 Amendment Act 1976) : As per this Article, any law that provides for
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checking Anti-national activities shall be immune from being struck down on the grounds of violation 0
of Article 14 and 19. By 43 rd Amendment Act 1977, the Article 31D was repealed. w

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44 Amendment Act, 1978: 0 00:47:25 �
�
• By this amendment Article 19 (1) (f) and 31 (2) were eliminated/repealed and Article 31 (1) was ,q­
('I')
removed from Part 3 and the same provision was made legal right and placed under Article 300A. �
('I')
• Article 300A mentions that no person shall be deprived of his property save by authority of law. ('I')

• Though Right to Property is completely removed but the exception to Right to Property which were N
('I')

3 1A, 318 and 3 1C remained in the Constitution. w

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• There is no provision in the Constitution which can compel the State to provide compensation on
acquiring property of an individual. The earlier provision which provided for the compensation/amount
(Article 3 1 (2)) was removed from the Constitution. �
• Right to compensation still exists for the religious denominations (Article 26) and Minority education �
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institution (Article 30 (lA)). 0
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• Article 31A also provides for compensation for acquisition of land within the ceiling limit held by a a.
person under his personal cultivation and for other structures. Article in this regard mentions that- �
1-
o Provided further that where any law makes any provision for the acquisition by the State of any ::c
(.!)
estate and where any land comprised therein is held by a person under his personal cultivation, it 0:
 shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit
applicable to him under any law for the time being in force or any building or structure standing
thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or
structure, provides for payment of compensation at a rate which shall not be less than the market
value thereof.
• Land Acquisition Act 20 13 provides for compensation but there is no constitutional obligation to pay
compensation for acquiring property of individuals.

Provisions protecting violation of Fundamental Rights:

• Article 13 (2).
• Article 32 (Writ Jurisdiction of Supreme Court).
• Article 226 (Writ Jurisdiction of High Court).

Note:
This Article 226 is not a Fundamental Right unlike Article 32. Hence the High Court can deny exercise of its
Writ Jurisdiction but the Supreme Court cannot deny providing remedy under Article 32. The High Court can
also issue Writs for enforcement of other rights like Legal rights etc. along with for the Fundamental Rights,
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while Supreme Court can only issue the writs for enforcement of Fundamental Rights.
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0 352).
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Article 32: 0 00:59:45
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c:: • Remedies for enforcement of rights conferred by this Part (Article 32):
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'I:!' o (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
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M o (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
N nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
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o (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction
� all or any of the powers exercisable by the Supreme Court under clause (2).
c:: o (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by
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ct • The Supreme Court can also be empowered to issue Writ for other purposes also. The Constitution
 include Article 139 under which:
o Parliament may by law confer on the Supreme Court power to issue directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
or any of them, for any purposes other than those mentioned in clause (2) of article 32. (So far no
such Law has been passed).
• Writs:
o Habeas Corpus ("To have the body of"): In case of any illegal/unlawful detention the Court can
issue directions to public authorities/private entities to release that person and to produce that
person in the Court. This is also referred to as bulwark of individual liberty, thus this writ can be
demanded as a matter of Right.
o Mandamus ('to command') : It is issued principally against public authorities/officials, directing
them to perform their statutory duties. It cannot be issued against:
► President and Governor.
► Private individual.
► In exercise of discretionary power.
► Chief Justices of High Courts.
► Legislator for performing legislative function.
o Prohibition and Certiorari: (/)
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► These both writs are issued by the Higher Courts to Lower Judicial and quasi-judicial bodies. In z
Certiorari ('to inform') the higher court can call for record in the case where the lower court has no 0:
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jurisdiction. If the proceeding in such a case starts, then the Higher Courts can stop the
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proceeding and if the verdict has been issued then the Higher Courts can strike down that 0
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judgment. Hence the writ of Certiorari is both preventive as well as curative in nature.
► In 1991 the Supreme Court said that the Certiorari can also be issued against the Public w
Authorities whose functions and duties, affects the Fundamental Rights of the people. c::
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► A writ of prohibition is normally issued when an inferior court or tribunal proceeds to act without ,q­
('I')
jurisdiction. By this the Court can stop hearing in a matter over which the lower Courts/quasi­ �
('I')
judicial bodies have no jurisdiction. It is purely preventive in nature. ('I')
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o Quo warranto ('by what authority') : The writ calls upon the holder of a public office to show to the ('I')

court under what authority he is holding the office in question. The writ is also used to protect a w
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citizen from the holder of a public office to which he has no right.
o Injunction (Taken from USA): This writ is not mentioned in the Constitution, but has been used by
the Courts in India. This Writ is basically an order of the Court asking any entity to do something or �
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refrain from doing something. This writ is of two types: w
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► Mandatory Injunction: It is like mandamus but it is issued against private individuals/bodies 0
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while mandamus is only issued against public authorities. a.
► Preventive Injunction: It is like Prohibition but it is not issued to lower courts like the writ of �
1-
prohibition. It is issued to the litigating parties. ::c
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0:
 Article 34 (Martial law)
• Under Martial law, civil administration of an area is suspended and the military rules, laws, norms etc.
are imposed. It is being made applicable when the law and order situation of any area is beyond the
control of civil administration.
• Martial Law is not defined in the Constitution. The grounds on which it should be imposed, the duration
of its imposition and the powers that military can exercise are also not mentioned in the Constitution.
Hence lots of discretion is given to the Government regarding Martial Law.
• It was frequently used before Independence but has not been imposed after independence. No clear
norms are mentioned regarding suspension of rights in case of imposition of Martial law like that
mentioned in case of imposition of National Emergency (Article 352).
• Restriction on rights conferred by this Part while martial law is in force in any area (Article 34) :
o Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law
indemnify any person in the service of the Union or of a State or any other person in respect of any
act done by him in connection with the maintenance or restoration of order in any area within the
territory of India where martial law was in force or validate any sentence passed, punishment
inflicted, forfeiture ordered or other act done under martial law in such area.

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Related Doctrines � 01:48:25
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ct o Laws inconsistent with or in derogation of the fundamental rights (Article 13):
1-
u ► (1) All laws in force in the territory of India immediately before the commencement of this
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of such inconsistency, be void.
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► (2) The State shall not make any law which takes away or abridges the rights conferred by this
c:: Part and any law made in contravention of this clause shall, to the extent of the contravention, be
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� o Article 13 ( 1) and 13 (2) mentions that the only part which is violating the Fundamental Rights (to
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M the extent it is inconsistent with provisions of Fundamental Rights) will be struck down by the
N Courts. This is called the doctrine of severability. The Court will declare the whole Law
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the unconstitutional part of the law.
• Doctrine of Eclipse: Courts by interpreting the term "Void" in Article 13 (1) mentioned that the pre­

� constitutional laws which are violating the Fundamental Rights will not be completely void but will be
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w eclipsed by the Fundamental rights to the extent of their inconsistency. If that Fundamental Right is
Cl.
0 removed or changes (Eclipse removed) then the Law again becomes applicable.
c::
Cl. • Doctrine of Waiver (giving up the claims) : Court said that the people cannot waive their Fundamental
g1- Rights as they are not only the rights given to the people but also the obligation on the State to honor
J: those rights. Nobody has the Right to relieve the State from this obligation.
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 EE
ARTI CLE 35 & OTH ER ASPECTS O F
FU N DAM ENTAL RI G HTS
Article 35 0 00:00: 10
• Part Ill of the Constitution provide for creation of laws in number of Articles such as:
o Article 16 (3)
o Article 32 (3)
o Article 33
o Article 34
o Articles which includes offences like-
► Article 17
► Article 23
• Under Article 35 Parliament shall have, and the Legislature of a State shall not have, power to make
laws :
o (i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32,
article 33 and article 34 may be provided for by law made by Parliament; and
o (ii) for prescribing punishment for those acts which are declared to be offences under this Part.
• Article 16 (3). 32 (3), 33 and 34 mentions that the law will be made by the Parliament. Articles like 17
and 23 only provide for creation of law and do not specify the agency which has the power to make
such laws. Article 35 provides that for such Articles of Part Ill the Law making power is given to the
Parliament only. This is primarily done for uniform application and enforcement of Fundamental Rights
across the nation without any variation.

Critical Evaluation of Part Ill of the Constitution 0 00:05:57

J: • Excessive Restriction: There are excessive restrictions in the Constitution, for example in Article 19
(!)
large part of the Article covers only restrictions.
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• Lack of clarity: There are use of vague terminologies and statements in many of the Articles. There are
z
w many terminologies like Public Order, Morality, Public health, Reasonable restriction etc. which are not
clearly defined and are subject to different interpretations by different governments.
z • Fundamental Rights can be violated by putting such violating laws in the Schedule 9. They can be
::::>
LL amended and they can also be suspended during the National Emergency. These provisions dilute the
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0 Fundamental character of the Fundamental Rights.
• The remedy available in case of violation of Fundamental Rights (Article 32 and 226) is:
w o Complicated as a person has to approach the Supreme Court (Article 32).
a..
Vl o Expensive as legal services in India are very costly. Hence it is out of the reach of the common man.
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c:: • Presence of Preventive detention provisions in Part Ill:
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J: o Preventive detention was useful during the colonial period but after independence its continuation
is the violation of Article 2 1 and Article 22.
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LO • Part Ill only emphasizes Libertarian principles which includes mainly political rights influenced by
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w western philosophies and focuses very less on Egalitarian and Socialist principles. These Egalitarian
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u and Socialist principles are included in Part IV under Directive Principles which are not even
enforceable and justiciable.
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 • Part Ill has also been criticized for lack of consistency. Though this criticism is not very convincing
because different types of Rights are needed to be incorporated in the Part Ill. As some Articles are
borrowed from the Western Liberal Democracies, some Articles like Article 18 are based on the bitter
colonial experience and some Articles like Article 17 are based on the desire to reform social practices.

Significance of Part Ill: 0 00:21:08

• Without Part Ill dignity and liberty of Individual cannot be reinforced.
• Without the Rights mentioned in Part Ill no citizen can realize life and its potential to the fullest.
• The Part Ill enforces Rule of law in the country (Article 14, 15, 16).
• As many of the Rights are in the nature of negative obligations on the State, thus Rights are limiting the
powers of the Government. Hence the limitations provided by Rights in Part Ill ensures that the State
does not become autocratic or authoritarian. Part Ill provides for limited government.
• Several provisions in Part Ill help in enforcing Social Justice. These provisions includes:
o Affirmative actions under Article 15 and 16.
o Abolition of untouchability under 17.
o Minority Rights.
o Article 23 and 24.
• Part Ill reflects and underlines the democratic functioning of the State. The crux of democracy is not
only in the Elections but in what happens in the period between the elections. The Right to Life, Liberty,
Freedom to peacefully protest, freedom of speech and expression, freedom to form association etc.
keeps democracy alive in the time between two consecutive elections.
:I:

Rights outside Part Ill

0 00:30:05 l!)

• These Rights are constitutional rights but are not Fundamental Rights, thus these are non­
Fundamental Rights. z
w
• Statutory rights are the Rights which are available outside the constitution and are provided by any �
statute/law e.g. Right under Food Security Act 20 13, Right under MGNREGA etc. z
• Legal Rights are the rights which are backed by the law. Thus in this sense every right under the :,
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constitution or provided by any statute can be classified under Legal Rights. 0
• Various Rights outside Part Ill are: V)
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o Article 300A (Property Rights). u
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o Article 326-Provides Right to be registered as a voter in the Electoral Roll. V)
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o Article 301-Freedom of trade and commerce. c:::
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o Article 265 - No tax can be levied and collected save by the authority of Law. It can also be :I:

mentioned that this Right justifies the statement 'No taxation without representation'. The Law by
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which the tax can be levied and collected can only be passed by the legislature having members LO
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which are the representatives of the people (Mps). w
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Various types of Rights
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 • Rights can be viewed as entitlements and if Right is backed by law then it becomes a legal entitlement.
• Natural Rights: According to John Locke natural rights are the rights possessed by humans by virtue of
being humans who are created equally by nature. He talked about three rights of Right to Life, Liberty
and Property. These Rights are not provided by any law or Constitution they are provided by Nature.
• Human Rights: The scope of these rights is wider than Natural Rights, Human Rights are elaborately
mentioned for the first time by adoption of the Universal Declaration on Human Rights on December
10th 1948. December 10 has since then been celebrated as International Human Rights Day.
• Fundamental Rights: These Rights are mentioned in the Part Ill of the Constitution and they are
Fundamental for the overall development of a person or community.

Human Rights
• New Rights emerge when society faces any new threats or when new ideas on Human Dignity
emerge. The evolution of Human Rights can be understood by following description:
o Civil and Political Rights (1st Generation) : These are the initial conception of Rights and are
conceptualized in the 17th and 18th Century. Most of these rights are of the nature of negative
obligations. These Rights include Right to Life, Right to Liberty, Freedom of Religion, Freedom of
expression, Right to Property etc. They are also referred to as the first generation of Human Rights.
They are mainly individual rights and are of immediate application.
nd
o Social, economic and Cultural Rights (2 Generation) :
► These Rights emerged in the 19th Century.
► These are also Individual Rights.
J: ► These Rights include Right to Work, Right to Livelihood, Right to education, Right to Health,
(!)
Right to decent wage etc.
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► With the Industrial Revolution the idea of human dignity underwent a change. The civil and
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w political rights were not sufficient for Human dignity, thus Social, economic and Cultural rights
emerged.
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z o Solidarity Rights (3 Generation) :
::::>
LL ► These Rights emerged in the 20th Century.
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0 ► These are the Collective Rights.
► These include Rights of Minorities (Linguistic, Religious and LGBTQ Rights), Right to
w Development, Right to Peace, Right to Humanitarian Assistance, Right to Healthy Environment
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Vl and Right to Self-Determination.
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c:: ► Right to Self-determination is very controversial and many countries do not provide for this
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J: Right. There are also different perceptions regarding Right to Humanitarian Assistance. India's
refugee policy is also full of strategic ambiguities.
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LO o In the present time there have emerged Rights like Right against genetic manipulation, Right to
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w benefit equally from exploration of Cosmic Space, Right to access internet etc. These Rights can be
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u termed as 4th Generation Rights.
• The manifestation of Human Rights in India can be seen in:
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 o Part Ill of the Constitution.
o Part IV of the Constitution.
o Supreme Court's interpretation of Article 2 1.
o Protection of Human Rights Act 1993.
0 01:15:45
Protection of Human Rights Act, 1993
• This Act provides for the formation of National Human Rights Commission and State Human Rights
Commissions. The formation of NHRC is mandatory but formation of SHRC's is optional. Even if SHRC
exists in any state the person from that state is not prohibited from approaching NHRC directly. The
has been amended in 20 19 but there first should be clear understanding of the original provisions,
which are discussed below:
• Constitution of a National Human Rights Commission (Section 3):
o (1) The Central Government shall constitute a body to be known as the National Human Rights
Commission to exercise the powers conferred upon, and to perform the functions assigned to, it
under this Act.
o (2) The Commission shall consist of-
► (a) a Chairperson who has been a Chief Justice of the Supreme Court;
► (b) one Member who is, or has been, a Judge of the Supreme Court;
► (c) one Member who is, or has been, the Chief Justice of a High Court;
► (d) two Members to be appointed from amongst persons having knowledge of, or practical
experience in, matters relating to human rights.
o (3) The Chairpersons of the National Commission for Minorities, the National Commission for the :I:
c:,
Scheduled Castes, the National Commission for the Scheduled Tribes and the National
Commission for Women shall be deemed to be Members of the Commission for the discharge of
functions specified in clauses (b) to (j) of section 12. z
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o (4) There shall be a Secretary- General who shall be the Chief Executive Officer of the Commission �
and shall exercise such powers and discharge such functions of the Commission as may be z
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delegated to him by the Commission or the Chairperson, as the case may be. LL
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o (5) The headquarters of the Commission shall be at Delhi and the Commission may, with the 0
previous approval of the Central Government, establish offices at other places in India.
w
Q.
• Appointment of Chairperson and other Members (Section 4): V)
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o (1) The Chairperson and the Members shall be appointed by the President by warrant under his c:::
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hand and seal: Provided that every appointment under this subsection shall be made after :I:
obtaining the recommendations of a Committee consisting of-
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► (a) the Prime Minister - chairperson; Ill
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► (b) Speaker of the House of the People - member; w
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► (c) Minister in-charge of the Ministry of Home Affairs in the Government of India - member; u
► (d) Leader of the Opposition in the House of the People - member;
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 ► (e) Leader of the Opposition in the Council of States - member;
► (f) Deputy Chairman of the Council of States-member.
Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be
appointed except after consultation with the Chief Justice of India.
o (2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy
of any member in the Committee referred to in the first provison to sub-section ( 1).

• Resignation and removal of Chairperson and Members(Section 5) :

o (1) The Chairperson or any Member may, by notice in writing under his hand addressed to the
President of India, resign his office.
o (2) Subject to the provisions of sub-section (3), the Chairperson or any Member shall only be
removed from his office by order of the President of India on the ground of proved misbehaviour or
incapacity after the Supreme Court, on reference being made to it by the President, has, on inquiry
held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported
that the Chairperson or the Member, as the case may be, ought on any such ground to be removed.
o (3) Notwithstanding anything in sub-section (2), the President may, by order, remove from office
the Chairperson or any Member if the Chairperson or such Member, as the case may be, -
► (a) is adjudged an insolvent; or
► (b) engages during his term of office in any paid employment outside the duties of his office; or
► (c) is unfit to continue in office by reason of infirmity of mind or body; or
► (d) is of unsound mind and stands so declared by a competent court; or
:c ► (e) is convicted and sentenced to imprisonment for an offence which in the opinion of the
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President involves moral turpitude .
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Note:
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w The Supreme Court said that any act which is contrary to Justice, Honesty, Modesty and good morals comes
under the ambit of moral turpitude.
z
:::> • Term of office of Chairperson and Members (Section 6) :
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0 o ( 1) A person appointed as Chairperson shall hold office for a term of five years from the date on
which he enters upon his office or until he attains the age of seventy years, whichever is earlier.
w o (2) A person appointed as a Member shall hold office for a term of five years from the date on which
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l/) he enters upon his office and shall be eligible for re-appointment for another term of five years:
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Provided that no Member shall hold office after he has attained the age of seventy years.
:c o (3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further
employment under the Government of India or under the Government of any State.
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LO • Officers and other staff of the Commission (Section 1 1) :
(Y)
w o ( 1) The Central Government shall make available to the Commission-
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u ► (a) an officer of the rank of the Secretary to the Government of India who shall be the Secretary­
General of the Commission; and
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 ► (b) such police and investigative staff under an officer not below the rank of a Director General of
Police and such other officers and staff as may be necessary for the efficient performance of the
functions of the Commission.
o (2) Subject to such rules as may be made by the Central Government on this behalf, the
Commission may appoint such other administrative, technical and scientific staff as it may consider
necessary.
o (3) The salaries, allowances and conditions of service of the officers and other staff appointed under
sub-section (2) shall be such as may be prescribed.

Note:
The secretary general is sent by the government which is subject to criticism. The position of secretary
general should be filled through an open merit based recruitment process to avoid any conflict of interest.

• Functions of the Commission (Section 12): The Commission shall perform all or any of the following
functions, namely -
o (a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf or on a
direction or order of any court, into complaint of-
► (i) violation of human rights or abetment thereof; or
► (ii) negligence in the prevention of such violation, by a public servant;
o (b) intervene in any proceeding involving any allegation of violation of human rights pending before
a court with the approval of such court;
o (c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or :I:
other institution under the control of the State Government, where persons are detained or lodged
for purposes of treatment, reformation or protection, for the study of the living conditions of the
inmates thereof and make recommendations thereon to the Government; z
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o (d) review the safeguards provided by or under the Constitution or any law for the time being in �
force for the protection of human rights and recommend measures for their effective z
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implementation; LL
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o (e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and 0
recommend appropriate remedial measures;
o (f) study treaties and other international instruments on human rights and make recommendations w
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for their effective implementation; (/)
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o (g) undertake and promote research in the field of human rights; a:::
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o (h) spread human rights literacy among various sections of society and promote awareness of the :I:
safeguards available for the protection of these rights through publications, the media, seminars
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and other available means; It)
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o (i) encourage the efforts of non-governmental organisations and institutions working in the field w
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of human rights; u
o (j) such other functions as it may consider necessary for the promotion of human rights.
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 • Inquiry into complaints (Section 17): The Commission while inquiring into the complaints of
violations of human rights may -
o (i) call for information or report from the Central Government or any State Government or any other
authority or organisation subordinate thereto within such time as may be specified by it: Provided
that-
► (a) if the information or report is not received within the time stipulated by the Commission, it
may proceed to inquire into the complaint on its own;
► (b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry
is required or that the required action has been initiated or taken by the concerned Government
or authority, it may not proceed with the complaint and inform the complainant accordingly;
o (ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to
the nature of the complaint, initiate an inquiry.

• Steps during and after inquiry (Section 18): The Commission may take any of the following steps
during or upon the completion of an inquiry held under this Act, namely -
a (a) where the inquiry discloses the commission of violation of human rights or negligence in the
prevention of violation of human rights or abetment thereof by a public servant, it may recommend
to the concerned Government or authority-
► (i) to make payment of compensation or damages to the complainant or to the victim or the
members of his family as the Commission may consider necessary;
► (ii) to initiate proceedings for prosecution or such other suitable action as the Commission may
::t deem fit against the concerned person or persons;
(.!)
► (iii) to take such further action as it may think fit;
...I
o (b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as
z
w that Court may deem necessary.

z • Procedure with respect to armed forces (Army, Navy, Air Force and CAPF's) (Section 19):
:)
LL o (1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of
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0 human rights by members of the armed forces, the Commission shall adopt the following
procedure, namely -
w ► (a) it may, either on its own motion or on receipt of a petition, seek a report from the Central
a.
(/) Government;
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► (b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may
::t be, make its recommendations to that Government.
o (2) The Central Government shall inform the Commission of the action taken on the
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LO recommendations within three months or such further time as the Commission may allow.
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• Annual and special reports of the Commission (Section 20):
u o (1) The Commission shall submit an annual report to the Central Government and to the State
Government concerned and may at any time submit special reports on any matter which, in its
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 opinion, is of such urgency or importance that it should not be deferred till submission of the annual
report.
o (2) The Central Government and the State Government, as the case may be, shall cause the annual
and special reports of the Commission to be laid before each House of Parliament or the State
Legislature respectively, as the case may be, along with a memorandum of action taken or
proposed to be taken on the recommendations of the Commission and the reasons for non­
acceptance of the recommendations, if any.

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 =n HUMAN RIGHTS FRAMEWORK IN
=:1.:1 INDIA & NHRC
Various other Provisions of the Protection of Human Rights Act,
1993 are as follows:
• Constitution of State Human Rights Commission (Section 21): � 00:00: 10

o (1) A State Government may constitute a body to be known as the.................. (name of the State)
Human Rights Commission to exercise the powers conferred upon, and to perform the functions
assigned to, a State Commission under this Chapter.
o (2) The State Commission shall, with effect from such date as the State Government may by
notification specify, consist of -
► (a) a Chairperson who has been a Chief Justice of a High Court;
► (b) one Member who is, or has been, a Judge of a High Court or District Judge in the State with a
minimum of seven years experience as District Judge;
► (c) one Member to be appointed from among persons having knowledge of or practical
experience in matters relating to human rights.
o (3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and
shall exercise such powers and discharge such functions of the State Commission as it may
delegate to him.
o (4) The headquarters of the State Commission shall be at such place as the State Government may,
by notification, specify.
o (5) A State Commission may inquire into violation of human rights only in respect of matters
relatable to any of the entries enumerated in List II (State list) and List Ill (Concurrent List) in the
Seventh Schedule to the Constitution. Provided that if any such matter is already being inquired
into by the Commission or any other Commission duly constituted under any law for the time being
in force, the State Commission shall not inquire into the said matter.
• Appointment of Chairperson and Members of State Commission (Section 22):
u o (1) The Chairperson and Members shall be appointed by the Governor by warrant under his hand
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::r: and seal: Provided that every appointment under this sub-section shall be made after obtaining the
z recommendation of a Committee consisting of -
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< ► (a) the ChiefMinister - chairperson;
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z ► (b) Speaker of the Legislative Assembly - member;
z ► (c)Minister in-charge of the Department of Home in that State - member;
� ► (d) Leader of the Opposition in the Legislative Assembly - member.
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Provided further that where there is a Legislative Council in a State, the Chairman of that Council and the
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Leader of the Opposition in that Council s h a l l a l s o be m e m b e r s of the C o m m i t t e e :
Provided also that no sitting Judge of a High Court or a sitting district judge shall be appointed except after
consultation with the Chief Justice of the High Court of the concerned State.
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o (2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely
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z by reason of any vacancy of anyMember in the Committee referred to in sub-section ( 1).
<� • Resignation and Removal of Chairperson or a Member of the State Commission (Section 23)
::, o (1) The Chairperson or a Member of a State Commission may, by notice in writing under his hand
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 addressed to the Governor, resign his office.
o ( 1A) S u bject to the p rovisions of s u b - section (2) , the Chairperson or any Member of the State
Com m ission s h a l l o n ly be removed from his office by order of the President on the g round of proved
misbehaviour or incapacity after the Su preme Cou rt, on a referen ce being made to it by the
President, has, on i n q u i ry held i n accorda nce with the proced u re prescri bed i n that behalf by the
Supreme Cou rt, reported that the C h a i rperson or such Mem ber, as the case may be, ought on a ny
such g round to be removed.

Note:
I n case of State Com m issions, the appointment is done by the G overnor but the C h a i rm a n a n d mem bers a re
removed by the President. S i m i l a r protection is also g iven to the C h a i rm a n and mem bers of State Public
Service Com m issions.

o (2) N otwithsta nding a nyth i n g i n s u b - section ( lA)] the President may by order remove from office
the Chairperson or any Member if the C h a i rperson or such Mem ber, as the case may be, -
► (a) is adjudged a n i nsolvent; or
► (b) engages d u ri n g his term of office i n a ny paid employment outside the d uties of his office; or
► (c) is u nfit to conti n u e i n office by reason of i nfi rm ity of m i n d or body; or
► (d) is of u nsound m i n d a n d sta nds so decl a red by a com petent cou rt; or
► (e) is convicted a n d sentenced to i m p rison ment for a n offence which i n the opinion of the
President i nvolves moral tu rpitude.
• Term of office of Chairperson and Members of the State Commission (Section 24) :
o ( 1) A person appointed as C h a i rperson s h a l l h o l d office for a term o f five years from t h e d ate on
which he enters u pon his office or until he attains the age of seventy years, whichever is earlier. u
o (2) A person a ppoi nted as a Mem ber shall hold office for a term of five years from the d ate on
c::
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which he enters u pon his office a n d shall be eligible for re-appointment for a n other term of five
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yea rs: Provided that no Mem ber s h a l l hold office after he has atta ined the age of seventy years. <(
o (3) O n ceasing to hold office, a C h a i rperson or a Mem ber shall be ineligible for further employment i5
z
u nder the G overn ment of a State or under the Govern ment of I n d i a . z
• Annual and special reports o f State Commission (Section 28) : �
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o ( 1) The State Co m m ission shall submit an annual report to the State Government a n d may at a ny 0
time s u b m it speci a l reports on a ny m atter which, i n its opinion, is of such u rgency or i m porta nce that
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it should not be deferred ti l l subm ission of the a n n u a l report.
o (2) The State G overn ment s h a l l cause the a n n u a l and specia l reports of the State Com m ission to be
laid before each House of State Leg isl atu re where it consists of two Houses, or where such
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Leg isl ature consists of one House, before that H ouse along with a memora n d u m of action ta ken or
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proposed to be ta ken on the recommendations of the State Com m ission a n d the reasons for non­ z
accepta nce of the recommendations, if a ny. <(
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 • Human Rights Courts (Section 30):
For the pu rpose of p roviding speedy tri a l of offences a rising out of violation of h u m a n rig hts, the State
Govern ment m ay, with the concu rrence of the Chief Justice of the High Court, by notification, specify for
e a c h d i st r i ct a C o u rt of S e s s i o n to b e a H uman Rights Cour t to try t h e s a i d offe n c e s :
Provided that noth ing i n this section s h a l l a pply if-
o (a) a Cou rt of Session is a l ready specified as a speci a l cou rt; or
o (b) a speci a l cou rt is a l ready constituted, for such offences u nder a ny other law for the time being i n
force.

Note:
There a re h a rd ly a ny Special Courts established by the States ti l l now. In 2 0 1 9 the Su p reme Cou rt criticized
the State govern m e nts for not i m plementi ng this p rovision.

• Special Public Prosecutor (Section 3 1): For every H u m a n Rig hts Cou rt, the State G overn ment s h a l l ,
b y notification, specify a Public Prosecutor or a p point a n advocate w h o has been i n p ractice as a n
advocate for not less th a n seven yea rs, as a Speci a l Public Prosecutor for t h e pu rpose o f con d u cting
cases i n that Cou rt.
• Matters not subject to jurisdiction of the Commission (Section 36):
o (1) The Com m ission s h a l l not i n q u i re i nto a ny m atter which is pend i n g before a State Com m ission
or a ny other Co m m ission d u ly constituted under a ny law for the time being i n force.
o (2) The Com m ission or the State Com m ission s h a l l not i n q u i re i nto a ny m atter after the expi ry of one
yea r from the d ate on which the act constituting viol ation of human rig hts is a l leged to have been
com m itted.
u
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::r: Note:
z This l i m itation period has been criticized as it is very low for the cases related to H u m a n Rig hts Violation.
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z Role of NH RC 0 00:23:47

z • Role of N H RC is to look i nto the d ifferent types of co m p l a i nts reg a rd i n g violation of H u m a n Rig hts. The
� natu re of com p l a i nts that N H RC receives a re:
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0 o Com p l a i nts with respect to Pol i ce a d m i n i stration such as custod i a n deaths, encou nters, custod i a n
violence, fa bricated cases, i l legal detentions. j a i l cond itions etc.
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o Com p l a i nts with respect to SC/STs.
o Com p l a i nts with respect to bonded l a bo u r.
o Com p l a i nts with respect to child labour.
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o Com p l a i nts with respect to com m u n a l violence.
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z o Com p l a i nts with respect to Dowry deaths a n d sexu a l h a rassment etc.
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Some achievements of N H RC 0 00:26:40
• C h i l d m a rriage Restra i nt Act, 1929 was replaced by new Act Child M a rriage Prohi bition Act, 2006 on
the i n itiative a n d encouragement of N H RC . U nder the new act a ny of the parties either g i rl or boy on
reaching the m atu rity (18 yea rs of Age) a n d for a fu rther period of 2 yea rs can a pply for decl a ration of
m a rriage n u l l a n d void.
• N H RC reg u l a rly notifies the l ist of I nd u stries where child l a bo u r is ra m p a nt and by the efforts of the
N H RC severa l children worki ng as child l a bo u r i n m a ny hazardous i n d u stries h ave been rescued a n d
reh a b i l itated.
• N H RC worked to cu rb trafficki n g of women a n d ch i l d ren. N H RC issued m a ny booklets for sensitizing
the Lower J u d ici a ry to h ave more sym pathetic attitude towa rds women who h ave been trafficked or
who h ave been wo rki ng a s sex worker. N H RC reg u l a rly conduct sensitization workshops for hoteliers
reg a rd i n g sex tourism, pedop h i l i a etc.
• N H RC has been in the forefront of the Right to Food ca m p a i g n .
• T h e N atio n a l Action p l a n on M a n u a l Scavenging has b e e n adopted b y t h e efforts o f N H RC .
• N H RC worked extensively on t h e cases o f h u m a n rig hts viol ation o f SC/ST's. N H RC con d u cted m a ny
researches a n d stu d ies on deprivation of h u m a n rig hts for SC/STs. I n ST's the N H RC focused on the
problems faced by the denotified tri bes. Denotified tri bes a re the tri bes which were earlier notified as
cri m i n a l tri bes under Cri m i n a l Tri bes Act, 187 1 by the B ritish. They h ave been de-notified after
I ndependence but a lot of stigmas a n d problems i n those com m u n ities conti nued.
• N H RC also focused on Rig hts of disa bled and problems of H IV positive patients. N H RC a lso secu red
com pensation for the victi ms of h u m a n rig hts viol ations.

Issues i n worki ng of N H RC and SH RCs 0 00:39:05

• N H RC is dependent on the govern ment for its staff, officers a n d fi n a n ces. Hence there is a case of u
confl ict of i nterest. There is a l so the issue that there is not adequ ate staff a n d fi n a nce ava i l a ble to the
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N H RC . This also leads to huge pend ency of cases i n the N H RC.
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• There is a n overwhe l m i n g dependency of N H RC and S H RC on government machinery for the <(
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i nvestigation of cases of human rig hts violation. z
• The Secreta ry Genera l of N H RC is a govern m e nt officer on deputation a n d DG (i nvestigation) is also a z
govern ment officer a n d lacks independence, th us there is h uge confl ict of i nterest. There should be a n �
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o p e n merit based recru itment p rocess for fi l l i n g these posts t o ensure their independence. 0
• Engag ement of N H RC with H u m a n Rig hts Vol u nta ry O rg a n izations/N GOs is bare m i n i m u m .
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• T h e com position o f N H RC lacks p l u ra l i s m a n d t h e q u a l ification for t h e a ppointment o f c h a i rm a n a n d
m e m b e r is very restrictive a n d incl udes o n ly j u d icial mem bers. T h e other two mem bers can also b e
d rawn from t h e reti red b u reau cracy, t h u s fu rther red ucing t h e scope o f a ppointment. Soci a l activists,
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h u m a n rig hts activists etc. should also be considered for the post of chairm a n a n d mem bers.
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• Almost 95% of the recommendations a re a ccepted by the govern ment but the govern ment creates too z
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• The 1 yea r l i m itation period is too short. ::>
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 • Human Rights Courts have hardly been set up.
• NHRC has not been able to adequately address the violation of human rights allegations against the
Armed Forces.
• In some states SHRC has not been set up and if set up there is lack of adequate staff, finances and
infrastructure. Majority of States have set up SHRC but they remained defunct throughout these years.
• Representation of SC, ST, minority, women etc. is grossly inadequate in NHRC.
• Physical distance from Delhi (Office of NHRC) prevents people from approaching NHRC. Hence there
is a need for Regional offices to increase the accessibility.
• Publication of annual reports in public domain by NHRC is always delayed due to delay in the Action
Taken Report by the Government.
• NHRC many times showed reluctance in taking human rights violation cases which are politically
sensitive.
• The composition of the selection committee has a majority of government members and the two
members who are leader of opposition in Parliament also do not take the appointment matter
seriously.

Paris Principles - 1993

• These were adopted by the United Nations in 1993.
• These are adopted to inform the functioning of National Human Rights Commission's.
• The principles include the provisions regarding the Working, Composition, Power, Finance of NHRCs
and their association with NGOs etc.

Global Alliance of National Human Rights Institutions (GAN HRI)

u • It works in close collaboration with the United Nations Human Rights Council.
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• India has been given Status A in 1 999, 2006, 20 1 1, and in 20 18.

::r: Amendment to Protection of Human Rights Act, 2019 0 0 1:06:03

• The qualification of chairman has been changed to and now the qualification is:
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<� ► (a) a Chairperson who has been a Chief Justice of the Supreme Court or Justice of Supreme
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 ► (b) one Member who is, or has been, a J udge of the Su preme Cou rt;
► (c) one Member who is, or has been , the C h ief J ustice of a H i g h Cou rt;
► (b) Three Members to be a p pointed from a m ongst persons h aving knowledge of, or practical
experience in, matters rel ati ng to h u m a n rig hts. And there should be one wom a n member out of
these th ree mem bers (Added by a mendment ) .
• N ow t h e l ist o f p a rt ti me ex- officio mem bers h ave been a mended a n d new mem bers ( 3 ) a re incl uded
which a re:
o C h a i rm a n of N atio n a l Comm ission of Backwa rd Classes.
o C h a i rm a n of N atio n a l Comm ission on Protection of C h i l d Rig hts.
o Ch ief Commissioner for Person with Disa b i l ities.
• Ten u re of chai rperson and mem bers of N H RC and S H RCs has been reduced to 3 years. Now the
chairperson is also eligible for rea ppointment.
• N ow the Secreta ry General of N H RC and SH RCs has been g iven fi nancial and a d m i n i strative powers
with res pect to the C o m m i s s i o n . E a r l i e r these powers we re s u bject to d e l egation by the
Com m i ssion/C h a i rm a n of the Commission to the Secreta ry Genera l .

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 D I RECTIVE PRI NCI PLES O F STATE
PO LI CY (PART - 1)
Sources and Inspirations of DPSC 0 00:00:25
• Instrument of Instructions framed under Government of India Act 1 935.
• Sapru Committee Report (1945) : The committee mentioned two types of rights - Justiciable Rights
(Part - Ill) and Non-justiciable Rights (Part - IV).
• Irish Constitution.
• The inspiration is also derived from Socialistic principles, Gandhian Principles and Liberal Intellectual
Principles.

Directive Principles of State Policy

0 00:05:20

• Definition of State (Article 36):

o In this Part, unless the context otherwise requires, -the State has the same meaning as in Part Ill
(Article 12).
• Nature of DPSP:
o The Provisions in Part IV can be referred to as Fundamental Principles. The word Fundamental is
mentioned in Article 37.
► Application of the principles contained in this Part (Article 37) :
The provisions contained in this Part shall not be enforceable by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall be
the duty of the State to apply these principles in making laws.
o They are non-justiciable.
o They are completely non-self executory. These Rights are not made justiciable and self executory
due to following reasons:
► Administrative and financial constraints of the governments of the developing countries like
India.
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► Many of them are in the form of moral principles like Article 5 1 and these moral principles cannot
be made justiciable.
� ► Inadequacy of socio-economic development: For example the principles like Local Self
:J Government (Article 40) and Uniform Civil Code (Article 44) can only be implemented when
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� o Relationship between Fundamental Rights and DPSP:
� ► In the Judgments like Champakam Dorairajan Case,1951 in the initial decades the Court
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0 ► The view of the Court began to change in the late 1 960's and 1 970's. By series of judgment the
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does not violate Basic Structure.

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 Court.
• If a law which is made to give effect to any Directive Principle violates Article 14 and Article
19 then the Court may uphold it if it satisfies the test of Reasonable Classification under
Article 14 and test of Reasonable Restriction under Article 19.
• In general the DPSP cannot override Fundamental Rights but the Court said that it will try to
give effect to both Part Ill and Part IV as much as practicable and as much as possible. In the
case of conflict involving Articles other than Article 14 and 19 the court will resolve the issue
using theory of Harmonious Construction or Harmonization.
• Courts ruled that there should not be any assumption of inherent conflict between
Fundamental Rights and DPSP. They both complement and supplement each other. They can
also be viewed as means (Fundamental Rights) and ends (DPSP). Part Ill and Part IV
constitute the Conscience of the Constitution.

� 00:36:03
Classification of DPSP

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DPSP

Social ist Princip les

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Ga n d hi a n
A
Li be ra l/I nte l lectua l
P r i n c i p les P r i n c i p les
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Principles under DPSP �

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• State to secure a social order for the promotion of welfare of the people (Article 38) (Socialistic 0
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Principle) :
o (1) The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall inform all �
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the institutions of the national life. 0
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o (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to ...I
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 • Certain principles of policy to be followed by the State (Article 39) (Socialistic Principle):
The State shall, in particular, direct its policy towards securing-
a (a) that the citizens, men and women equally, have the right to an adequate means of livelihood;
o (b) that the ownership and control of the material resources of the community are so distributed as
best to subserve the common good;
o (c) that the operation of the economic system does not result in the concentration of wealth and
means of production to the common detriment;
o (d) that there is equal pay for equal work for both men and women;
o (e) that the health and strength of workers, men and women, and the tender age of children are not
abused and that citizens are not forced by economic necessity to enter avocations unsuited to their
age or strength;
o (f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.

• Equal justice and free legal aid (Article 39A) (Socialistic Principle):
The State shall secure that the operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any
other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.

• Organisation of village panchayats (Article 40) (Gandhian Principle):

The State shall take steps to organise village panchayats and endow them with such powers and
authority as may be necessary to enable them to function as units of self-government.

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• Right to work, to education and to public assistance in certain cases (Article 41) (Socialistic
� Principle):
:J The State shall, within the limits of its economic capacity and development, make effective provision
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� sickness and disablement, and in other cases of undeserved want.
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0 The State shall make provision for securing just and humane conditions of work and for maternity relief.
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 and, in particular, the State shall endeavour to promote cottage industries on an individual or co­
operative basis in rural areas.

• Participation of workers in management of industries (Article 43A) (Socialistic Principle):

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.

• Promotion of co-operative societies (Article 438) (Socialistic as well as Gandhian Principle):

The State shall endeavour to promote voluntary formation, autonomous functioning, democratic
control and professional management of co-operative societies.

• Uniform civil code for the citizens (Article 44) (Liberal/Intellectual Principle):
The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of
India.

• Provision for early childhood care and education to children below the age of six years (Article 45)
(Socialistic as well as Liberal Principle):
The State shall endeavour to provide early childhood care and education for all children until they
complete the age of six years.

• Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other
weaker sections (Article 46) (Socialistic as well as Gandhian Principle) :
The State shall promote with special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall �
protect them from social injustice and all forms of exploitation. �

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• Duty of the State to raise the level of nutrition and the standard of living and to improve public 0
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health (Article 47) (Socialistic as well as Gandhian Principle) : LU
The State shall regard the raising of the level of nutrition and the standard of living of its people and the
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improvement of public health as among its primary duties and, in particular, the State shall endeavour (/)

to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks 0
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and of drugs which are injurious to health. ...I
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• Organisation of agriculture and animal husbandry (Article 48) (Socialistic as well as Gandhian
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The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines i'.=
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and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the LU
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slaughter, of cows and calves and other milch and draught cattle.
 • Protection and improvement of environment and safeguarding of forests and wild life (Article
48A) (Liberal Principle) :
The State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country.

• Protection of monuments and places and objects of national importance (Article 49) (Liberal
Principle) :
It shall be the obligation of the State to protect every monument or place or object of artistic or historic
interest, declared by or under law made by Parliament to be of national importance, from spoliation,
disfigurement, destruction, removal, disposal or export, as the case may be.

• Separation of judiciary from executive (Article 50) (Liberal Principle) :

The State shall take steps to separate the judiciary from the executive in the public services of the
State.

• Promotion of international peace and security (Article 51) (Liberal Principle):

The State shall endeavour to-
o (a) promote international peace and security;
o (b) maintain just and honourable relations between nations;
o (c) foster respect for international law and treaty obligations in the dealings of organised peoples
with one another; and
o (d) encourage settlement of international disputes by arbitration.

Implementation of DPSP
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• Article 39:
o Clause b and c are implemented through various programs and policies like:
� ► Nationalization: It was also indicated by Article 19 (1) (g). Civil aviation sector, Banks and
:J Insurance sector etc. were nationalized by the government.
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� ► Five Year Plan
� ► Monopolies and Restrictive Trade Practices Act, 1969
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a. o Clause e has been implemented by:
0 ► Child Labour (Prohibition and Regulation) Act, 1986.
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• Article 39A:
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 District Legal Service Authority at district level.
• Article 40:
o The 73rd Constitutional Amendment Act 1992 added part IX and Schedule XI in the Constitution.
This amendment provided constitutional status to panchayats thus making it mandatory for the
States to set up panchayats.
• Article 41:
o National Rural Employment Guarantee Act, 2005.
o National Policy for Older Persons, 1999.
o Old age homes in several Districts.
o Senior citizens are given concessions in air fare, railway fare etc.
o Maintenance and Welfare of Parents and Senior Citizens Act, 2007
o Rights of Persons with Disabilities Act, 20 16 and affirmative actions for them (Reservation).
• Article 42:
o Factories Act, 1948.
o Maternity Benefit Act, 196 1.
• Article 43:
o Minimum Wages Act, 1948.
o Labor Laws Code
o Khadi and Village Industries Commission, Handloom Board, Silk Board etc. were set up regarding
Cottage Industries.
• Article 43A:
o Trade Unions Act, 1926.
• Article 43 B:
o Cooperative Societies Act at central level and other Cooperative Acts at State level.
o Part IX-B of the Constitution. �
• Article 45: �
o Earlier provision of this Article was provided by including Article 2 1A in the Constitution by the 86th
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Amendment Act 2002. The Right to Education Act, 2009 provides for its implementation. 0
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o For current provision there is Integrated Child Development Scheme (ICDS). LU
• Article 46:
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o Whole gamut of Affirmative Actions is the best illustration of implementation of this Article. (/)

• Article 47: 0
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• Article 48: i'.=

o MSP policies.
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o Institutions like Indian Council for Agriculture Research, National Dairy Research Institute.
 o Dedicated agriculture institutions in the States.
• Article 48A:
o Wildlife Protection Act, 1 972.
o Forest (Conservation) Act, 1980.
o National Green Tribunal
o Environmental Impact Assessment process
o Bharat Stages VI norms
o Project Tiger etc.
• Article 49:
o Ancient and Historical Monuments and Archaeological Sites and remains (declaration of national
importance) Act, 1 9 5 1
• Article 50:
o Code of Criminal Procedure, 1 973 took away the power of District Magistrate to conduct Criminal
trials as he is part of the Executive. Hence the separation has been done by taking away the judicial
power from the District Bureaucracy (executive).
• Article 51:
o Panchsheel Principles.
o The whole gamut of foreign policy of the Government of India.

Indian Socialism 0 01:25:50

• Any framework which is aimed at welfare of society, bridging gaps between have and have nots,
reducing inequality in social and economic sphere and where individual interest is subordinate to
larger public interest, can be termed as Socialism.
• India subscribes to the Fabian Socialism concept and this Socialism is different from
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Marxism/Communism. The Difference between the two is as follows:

� Marxism/Communism Fabian Socialism

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� Revolution. with gradual implementation of State Policies.
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...I to subserve larger public good .
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extension of the elite class only.
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a:: Totalitarian Government. Democracy.
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Critique of DPSP
• Due to their non-justiciable nature they have been termed:
o Window Dressing
o Pious superfluities
o Cheque which will not be encashed till the time the bank has money.
o Like New Year resolutions which have been forgotten on the next day.
• Unsystematic enumeration and a lot of repetitions.
• Some of them lack clarity. This is also a positive thing as lack of clarity allows the government to
interpret the principle in light of emergent circumstances.
• Some principle are reactionary in nature:
o Reactionary means increased focus on the past and revival of old methods, traditions, morals etc.
o It means some of the principles are unfit for the present modern times, for example ban on alcohol
and ban on cow slaughter.
• Lack of consistency in the provisions: Some modern rational principles like Separation of power,
uniform civil code etc. are combined with the principles based purely on sentiments like alcohol ban
and ban on cow slaughter.
• Part IV is combining abstract principles like Justice with those which look like concrete policy
prescriptions like ban on alcohol. Hence not all the provisions of Part IV can be considered as principles
as principles are very broad and abstract.
• According to some experts there is no conceptual difference between part Ill and Part IV. Shifting of
any principle mentioned in the Part IV to Part Ill automatically makes it a Right, e.g. Article 2 1A. It is
very easy to convert the principle into a Right.
• There is a lack of clarity in the interpretation of the word 'Duty of the State'. It is not clear whether it is
moral duty or legal duty.
• The President and Governor take the oath to preserve, protect and defend the Constitution. Whenever �
the Central Government/States violate the directives of DPSP then there may arise constitutional �
conflict between President and Council of Ministers and between governor and State council of
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Significance of Part IV
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• It amplifies the social and economic justice pledge of Preamble. (/)

• It embodies the idea of a Welfare State. 0

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• They are complementary and supplementary to Fundamental Rights.
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• They are justiciable in people's court as they can be used as yardstick for measuring performance of i'.=
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• Even with liberalization, privatization etc. all provisions have not become redundant. As with these
 development:
o Crime against women and SC/STs have increased,
o Environment degradation have also increased drastically,
o New diseases and other lifestyle diseases have increased,
o With privatization exploitation of labor has increased,
o Inequality has increased,
o New emerging global order having lots of conflicts.
Hence with increase in these above mentioned problems the principles in D PSP became more and more
important.

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D I RECTIVE PRI NCI PLE O F STATE
PO LI CY (PART-2)
Issue related to Prohibition under Article 47 0 00:00:39
• Some of the states which have enforced prohibition on Liquor are Gujarat, Mizoram, Bihar and
Nagaland.
• Critical appraisal:
o Ineffective: There is not a single example of successful implementation of prohibition from
anywhere in the world. It was not even successful in western countries where it led to the rise of
organized crime and smuggling rackets.
o Organized Crime/Smuggling rackets: There is illegal sell and consumption of liquor in the States
where it is banned which leads to organized crime and smuggling rackets.
o It promotes Corruption in administration
o Against Liberalism: Liquor and some of the drugs are legalized in most parts of the World. Even in
the States where it is banned the members of Armed forces are allowed to consume. Also in States
like Gujarat liquor is allowed in Special Economic Zones (SEZ's). It should be left to freedom of
choice whether one wants to consume it or not.
o Cigarette not banned: Cigarettes are equally harmful but they are not banned by the government.
o States Revenue: Around 20% of the total revenue of the States from taxes comes from the tax on
liquor, thus it is a huge source of income for the States.
o Victimize poor: The poor are not able to purchase the high priced illegal liquor, thus they are
dependent on spurious/poisonous liquor prepared in unhygienic conditions. This poorly prepared
liquor often causes blindness and deaths. Rich people can come out of prosecution by bribing and
other means but poor people are not able to do it.
o It has been reported that the drug consumption in the States under prohibition is increasing.
• In 20 14 Kerala Government released a new policy regarding liquor consumption which only allowed
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the liquor consumption in 5 star hotels and though government registered sellers and banned
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consumption and sale in small bars and hotels. This was a clear violation of Article 14 but the Kerala
High Court and Supreme Court upheld it.
(J • Narula Case, 1967: The Court said that if State considers any profession, occupation, trade and
:J business is inappropriate then it can be banned, but the Court further said that if it is allowed then State
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� • Khoday Distilleries Case, 1995: Apex Court said that nobody has the Fundamental Right to trade in
� liquor. The same logic is applied by the Court in Upholding Kerala Government Policy.
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a. Article 48 and Issue related to Cow Slaughter
0 • The Article 48 mentioned that the State shall endeavour to organise agriculture and animal husbandry
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breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
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• Many constitutional experts believe that the later part of the Article should be interpreted in the
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 • The preservation, protection and improvement of Stock and prevention of Animal diseases is
mentioned in State list under Schedule 7, thus the Central government cannot ban cow slaughter on
national level.
• There is complete ban in UP, Maharashtra, Gujarat and Karnataka.
• Partial ban is there in West Bengal. This includes slaughter of unfit and unproductive animals after
acquiring a certificate.
• There is no ban in the States like Meghalaya, Nagaland and Mizoram.
• Hanif Quareshi Case, 1958: Court said that complete ban will be violation of Article 19 (1) (g) as there
will be disproportionate burden on farmers for maintaining unproductive animals. Court also said that
a complete ban will be against the larger public interest as beef is a source of protein for a large section
of the population in the Country.
• Mirzapur Moti Kureshi Case, 2005: Under this case the Court upheld the complete ban on cow
slaughter.
• Despite being banned from slaughter, the rate of growth of the cattle population is slower than the rate
of growth of the buffalo population (Around 40% of the buffalo population is slaughtered every year).
• Despite being banned from slaughter in Maharashtra and UP the Cow population declined in these
States since the last animal census.
• Due to increased financial burden on farmers for maintaining the unproductive Cows the farmers are
becoming reluctant to domesticate Cows, thus producing the exact opposite results from as expected
by ban on cow slaughter. This also leads to stray cattle menace.
• There should be a partial ban on cow slaughter and the slaughter should be allowed in a controlled
way.
• Assam Cow Protection Bill, 2021:
N°
o Prohibits the sale and purchase of beef in areas inhabited by non-beef eating population.
o It prohibits beef up to 5 km radius from any Temple. �
o Interstate transport of cows is only allowed if it is for the purpose of agriculture and animal t
husbandry. This provision is infringement on the will of other States as geographically Assam is the �
route to connect the North-Eastern States with rest of India. :J
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Uniform Civil Code (Article 44) 0 00:56:37 I-'

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• Laws which govern personal matters like marriage, divorce, maintenance, adoption, succession and 0
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inheritance etc. should be the same for every citizen of the country. And these uniform civil norms/laws a..
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are termed as Uniform Civil Code. Presently different personal laws are applicable in the country. 0
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• UCC was not adopted immediately after independence for giving concessions to the minority
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communities like Muslims. This was done because the identity of these communities especially
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Muslims revolve around their personal law and these laws are their way of life. i'.=
• It was also argued by some members of the Constituent assembly that community based personal
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laws would come in the way of national consolidation and achieving the status of Secular State.
 • Women also opposed the community based personal law as these laws are discriminatory and women
are at disadvantage in these laws e.g. Triple Talaq, Polygamy etc.
• By applying UCC the burden on the legal system can be reduced as the Court has to apply different
laws for different communities in the proceedings.
• Hindu Code Bills were introduced for applying UCC within the Hindu Community (Also applicable to
Sikh, Buddhist and Jain Communities) itself as there were intra-faith differences in civil norms in the
Hindu Community. These Bills includes:
o Hindu Adoption Act, 1956
o Hindu Minority and Guardianship Act, 1956
o Hindu Marriage Act, 1955
o Hindu Succession Act, 1956
• After the amendment in Anand Marriage Act 1909 in 20 12 Sikh marriages can also be registered
under this Act also.
• For Christian there is Christian Marriage Act, 1872 and for Parsis there is Parsi Marriage and Divorce
Act, 1936.
• Principle Acts which govern the Muslim Personal Law are The Muslim Personal Law (Shariat)
Application Act, 1937 and Dissolution of Muslim Marriage Act, 1939.
• Special Marriage Act, 1954 is the Act under which the civil marriages are performed and this Act is
Religion neutral and Caste neutral. Usually the interfaith marriages are registered under this Act.
Under this Act, a 30 day notice period is given to allow any objection to that particular marriage. But
this 30 day notice period is being exploited by the family or relatives to pressurize or threaten the
couple. The Allahabad High Court in 202 1 made this provision of 30 day notice optional. Court said
that if a couple wants to give a 30 day notice period then it will be given otherwise the couple can go for
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marriage immediately.
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t Supreme Court Opinion on UCC: 0 0 1 : 1 5:04

(J • UCC is desirable but sudden implementation may produce some adverse consequences for the Unity
:J and Integrity of the Country.
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� • The Court cannot direct the legislature to make Law for the implementation of UCC.
� • Shah Bano Case, 1985:
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a. husband on monthly basis in case of divorce subject to the condition that she does not remarry.
0 o Section 127 of CrPC mentions that if under the personal law wife is entitled to some kind of
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� maintenance payment then the Section 125 that shall not apply.
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Muslim Husband for the Wife during the marriage is divorce payment or not (Section 125 applies or
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 o The Court ruled that the Mahr is not Divorce payment and Section 125 will apply to the Muslim
Couple. Court also ruled that the Mahr amount is very less and the lddat Period of 3 month is not
sufficient.
o The Government enacted Muslim Women (Protection of Rights on Divorce) Act, 1986 to reverse
the Court Judgment and maintaining status quo.
o In the Danial Latifi Case, 2001 the Court upheld this Act and also ruled that the maintenance
payment paid in the lddat Period should be large enough to sustain the Wife for the substantial part
of her Life.
• Shayara Bano Case 2017:
o There are many un-lslamic elements in the laws governing the personal law for Muslims. Triple
Talaq is one such practice. Under this judgment the Court declared this practice illegal.
o The Government also passed Triple Talaq Act, 20 19 which made it criminal offence. This Act was
also criticized on the basis that civil offence should be considered as criminal offence and the Court
had already delegitimised it.
o There is a need for a law dealing with the abandonment of the wife by the Husbands in the Country.

Polygamy
• Shariat law allowed Polygamy subject to following conditions:
o This is done for the purpose of social service to help destitute women.
o The person will treat all wives equally.
• Bigamy is offence under Section 494 of IPC. It is not applicable to Muslim male up to marriage to 4
wives.
• For justifying multiple marriage people often convert to Islam.
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• Sarla Mudgal Case, 1995: The Court said that conversion of non-Muslim person into Islam to
legitimize the second marriage is not legal and the section 494 will be applicable on them. �
• In the Lily Thomas Case, 2000 the Court reiterated the Sarla Mudgal Judgment. t
• According to National Family Health Survey (NFHS- 20 1 1) the people who have more than one �
surviving wives are : :J
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o Muslim-2.5% of their Population
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 DIRECTIVE PRINCIPLES OF STATE
POLICY (PART-3)
Benefits of Uniform Civil Code: 0 00:00:48
• Reduce burden of legal system:
o As when people bring religious cases to the court, the court has to refer to different religious acts,
which makes the adjudication process much more complicated.
• Promote national consolidation:
o As different communities are subject to different set of laws, it amounts to discrimination based on
religion.
o This discrimination will be done away with once there is uniform civil code.
• Promote secularism:
o As it would bring also religious personal laws under one umbrella.
• Address women's rights issue:
o It would help in addressing the violation of women's rights found in personal laws of most of the
religions as these laws were framed during ancient or medieval times, which by their very nature
were patriarchal.

N ational
consolidation

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� Problems with uniform civil code: 0 00:03:43
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0 • Diversity of the country:
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o As India has so many subsets and denominations with their own customs, norms and beliefs, it
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would be difficult to replace it with UCC.
0 o Moreover, the constitution under Articles 25 and 26 guarantees the right to practice one's religion
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and to decide the religious practices and customs, respectively.
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> o Even today our way of life is very much involved in religion, associated superstitions, myths and
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mythologies, etc. Aspects like rationality and morality are still evolving.
a:: o This was one of the main reasons why UCC was not made justiciable by the constituent assembly in
 1950.
• Lack of legislative action:
o The legislature has not taken steps towards gradual implementation of UCC.
o Sometimes even the efforts of the judiciary towards UCC were countered by the governments. For
e.g. The Shah Bano case.
o Lack of legislative action is a result of vote bank politics.
• Lack of uniform criminal code:
o For example, some states have stringent cow protection laws, while others do not such laws at all.
• Obsession with one DPSP:
o Other directive principles like right to work, livelihood, protection of women and children, weaker
sections, right to food, right to healthcare, labour welfare, etc. are not being delivered adequately.
o Even 70 years after independence, we have not been able to give clean drinking water to every
citizen in the country.
• How to build the UCC:
o It would be difficult to decide on important personal matters which are different in different
religions.
o For example, different religions have different periods for separation before a divorce. Hence it
would be difficult to decide the most acceptable and ideal time period for separation.
• Perceived as imposition of Hindu personal law:
o It may be perceived especially by the minorities as an imposition of provision in the Hindu Personal
law.
0 00: 1 7 : 1 7
What to do?
• Strengthen the voice of progressive elements in all religions who want change in the society.
• Norms against freedom, equality, dignity, especially of women should be legislatively annulled
following a broad based debate.
• Leave the rest of the personal law untouched, as the issues would be taken care of already.
• Roll out an optional National Civil Code on the lines of Special Marriage Act, 1954, without any �
imposition. Give society time; allow it to progress to reach a level of modernity where people �
themselves start insisting to not be governed by the personal laws of the past, but by neutral, ::J
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modern and progressive laws. c..
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• Article 44 says that state shall 'secure' for citizens a Uniform Civil Code. Hence, the word 'secure' does
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not mean to impose. �
• Till the time society reaches the needed maturity, focus on other directive principles of work, LL
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livelihood, food, health, etc. (/)
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Shayra Bano Case, 2017: 0
• In this case, the apex court struck down section 2 of the Sharia Act, 1937, thereby striking down the
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provision of Triple Talaq. c..
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• Yet the Triple Talaq Act was enacted in 2019 by the government. It had the provision of awarding a >
three year jail term to the person who pronounces triple talaq. w
• Even though marriage is a civil contract, it was treated as a criminal offence. 0::
 • Moreover, a Muslim man would no longer pronounce triple talaq due to the fear of imprisonment, but
he would now just abandon his wife without pronouncing triple talaq. Such abandonment takes
place in almost every religion.
• Hence, if at all a penal offence has to be made; it should be made of abandonment of one's wife,
which is religion neutral.
• Even when the women complains about the triple talaq pronouncement by her husband and the
husband lands in jail, the situation of the entire family would be affected for the worse, if he happens to
be the sole bread-winner for the family.

Shariat courts: 0 00:30:05

• The All India Muslim Personal Law Board (AIMPLB) is an NGO set up in 1 973 to preserve and protect
Muslim personal law in India.
• Under its ambit, a number of Sharia Courts have been set up which are also referred to as 'Dar-ul­
Qaza'. However, these are not legally recognized courts.
• When a matter comes up to the Sharia court, it issues a 'fatwa' which is nothing more than an
expression of opinion.
• In the V. L. Madan case of 2014, the apex court said that these 'fatwas' are not directions or orders
but are opinions, which are non-binding in nature.
• Such fatwas are also not enforceable in the court of law. The Sharia courts are also not allowed to
issue fatwas unilaterally without the parties actually involved approach the sharia court to get its
opinion. The apex court also directed the sharia courts against issuing fatwas that specially go
against fundamental rights.

0 00:35:07
Directives outside Part IV:
• Article 335: Claims of Scheduled Castes and Scheduled Tribes to services and posts shall be taken into
consideration, consistently with the maintenance of efficiency of administration, in the making of
appointments to services and posts
� • Article 350A: It shall be the endeavor of every State and of every local authority within the State to
� provide adequate facilities for instruction in the mother-tongue at the primary stage of education to
::::i children belonging to linguistic minority groups; and the President may issue such directions to any
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State as he considers necessary or proper for securing the provision of such facilities.
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• Article 351: Directive for development of the Hindi language.
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 gm FUNDAMENTAL DUTIES
The Fundamental Duties are contained in Part IV-A of the Indian Constitution in Article 51-A. Fundamental
Duties were not part of the original constitution but was added later through the 42 nd Constitutional
Amendment Act, 1976 on the recommendation of the Sardar Swaran Singh Committee.
The justification/rationale given by the committee to have this chapter of the Fundamental Duties in the
constitution is as follows:
• The prevailing atmosphere of indifference towards-
o Nation-building
o Matters of state/government
o Larger public issues/interest, etc.
• It will help in securing a balance between individual freedom (given by various articles of the
constitution, largely by part 3) and larger public interests.

Before the addition of the Fundamental Duties to the constitution of India, duties still existed in the form of
various provisions of the constitution such as the Preamble of the Constitution which says, "We the People
of India...." The Preamble has the inherent idea about citizens' obligations and responsibilities by pledging
for the things provided in the preamble.
The 42nd Constitutional Amendment Act, of 1976 added ten fundamental duties to the constitution. Later,
the 86th Constitutional Amendment Act, 2002 added one more fundamental duty to the list. Therefore, there
is a total of eleven fundamental duties in the constitution.

Criticism of Fundamental Duties

• Vagueness - A common criticism for both the fundamental duties and the directive principles of state
policy (DPSP) is that both use vague terms.
• Moral Character - Some of the fundamental duties are moral in nature, meaning there is no idea of
concrete expectations from the citizens. Such moral duties are even difficult to enforce by law as they
are not clear in their message. Moral Duty is very general and mentioned in abstract terms such as
"uphold and protect the sovereignty", etc.
Some duties are civic in nature, meaning that duty gives a concrete idea of the expectation from the
citizen. For example: "To respect the National Flag of India" is a civic duty, it is also codified through the
Flag Code.

List of Fundamental Duties

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j::: (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National
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....I Anthem; (a civic duty)
z (b)to cherish and follow the noble ideals that inspired the national struggle for freedom; (a moral duty)
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:[ (c) to uphold and protect the sovereignty, unity and integrity of India; (a moral duty)
(d)to defend the country and render national service when called upon to do so; (a civic duty)
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 transcending religious, linguistic and regional or sectional diversities and to renounce practices
derogatory to the dignity of women; {(a moral duty) or a blend of both moral and civic duty}
(f) to value and preserve the rich heritage of the country's composite culture; (a moral duty)
(g)to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have
compassion for living creatures; (a blend of both moral and civic duty)
(h) to develop scientific temper, humanism and the spirit of inquiry and reform; (a moral duty)
(i) to safeguard public property and to abjure violence; (a civic duty)
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to higher levels of endeavour and achievement; and (a moral duty)
(k) to provide opportunities for education to his child or ward between the age of six and fourteen years. (a
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civic duty) (Added by the 86 amendment act, 2002).

The notion of Duties under the Constitution

• Codification of very Indian way of life: In general, since the hoary past, the Indian community has
placed a lot of emphasis on the concept of " Dharma" - in the sense of duty. The concept of duty is
emphasised more as opposed to rights.
Specific duties - such as pluralism, tolerance, taking care of the environment, taking care of own
children, respecting women, etc. are symbolic of the Indian way of life derived from Indian traditions,
Indian mythology, beliefs, and practices.
• Rights and Duties are two sides of the same coin - Being the citizen of the collective identity called
India, as there are certain rights being enjoyed as being its citizen, so, there are certain duties towards
the state as well to fulfil. With every right comes a corresponding duty - as a citizen, we have the right
to practice our own religion, by this, it also means that we have the duty to respect the beliefs of other
religions.
Mahatma Gandhi believed that if each citizen focusses more on the duties, rights will come
automatically.
• Fundamental Rights (FR) and Directive Principles of State Policy (DPSP) -The promises mentioned
in part Ill as fundamental rights and part IV as DPSP cannot be fulfilled or realised unless citizens
perform their fundamental duties in part IV-A. For example - education being a part of all the three
parts of the constitution-Part 1 1 1, Part IV, and Part IV-A. These three parts of the constitution form the
organic whole within the constitution and these parts interact with each other, feed off each other,
complement each other and supplement each other.
• Serves as a warning - The duties also serve as a warning against those citizens who tries to engage in V)
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anti-social activities, which is likely to influence our brotherhood, unity, integrity, harmony, etc. j:::
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• Message -The fundamental duties send a message to the citizens that they are not mute spectators, ...J
rather they are active participants in the process of nation-building. z
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• Apex Court on the fundamental duties - :::E
o The legal status of part IV-A is no different from part IV: Meaning part IV (DPSP) gives policy
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directions/guidelines towards the states without legal sanction and part IV-A (fundamental duties) :::>
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 are directed towards the citizens, also without legal sanctions.
o Though the state can make laws to prevent violation of fundamental duties.
o Also, citizens cannot claim that they are properly equipped to perform these duties.
o Fundamental duties cannot be enforced through writs.
o It is applicable/confined to the citizens of India only. Though the foreigners should not disrespect or
violate the fundamental duties.
o Part IV-A has disproportionately increased the burden of fundamental rights. If a law conflicts with
article 14 or 1 9 of the constitution, but the law is trying to implement a fundamental duty, it will not
be immediately struck down under Article 1 3(2), but it will be seen to what extent it stands the test
of reasonable classification (Article 14) and test of reasonable restriction (Article 19) . Hence, a
law giving effect to fundamental duties can also be upheld regardless of the fact that it is also
violating article 14 or article 19 of the constitution.

MC Mehta Case,1988
This case is related to the environmental issues, in which the Supreme Court said that:
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• The government must ensure that all students up to )( standard must be given compulsory lessons on
the environment.
• The government should have textbooks prepared on environmental protection and distribute them at
subsidised rates or free of cost.
• There should be short term training courses for teachers at the school level in environmental studies.
• Cleanliness weeks should be introduced every year to keep the own local area clean from the pollution
of land, air, etc., free. This should include people from eminent positions such as executive, legislature
and judiciary as well, rendering free services to keep their locality clean.

Yamuna Shankar Mishra Case, 1997

This case is related to fundamental duty 51-A ( j). In this judgement, the court said that:
• When the seniors are filling the Annual Performance Report (APR) of their juniors - do so
objectively and in such a manner that a fair and better assessment is given to them. It means that
they should keep in mind article 51-A ( j) : to strive towards excellence in all spheres of individual
and collective activity so that the nation constantly rises to higher levels of endeavour and
achievement.

V) National Anthem
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and pay respect to the National Anthem. The apex court further gave justification for the judgement that This
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:[ will help in instilling constitutional patriotism
But in 20 1 8, the Supreme court modified its 20 1 6 judgement and made it optional for cinema halls to
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play the anthem before screenings in cinemas. It left the choice of whether to play the anthem or not to
the discretion of individual cinema hall owners. However, if the anthem is played, patrons in the hall are
bound to show respect by standing up. The court clarified that the exception granted to disabled persons
from standing up during the anthem "shall remain in force on all occasions".
The prevention of Insult to National Honour Act of 1971 states " Whoever intentionally prevents the singing
of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished
with imprisonment for a term, which may extend to three years, or with fine, or with both." But this act says
nothing about standing.

Jehovah witness case / Emmanuel versus state of Kerala case 1986

This case dealt with three children belonging to the Jehovah Witnesses sect refusing to sing the anthem in
the school assembly because of their religious constraints though they stood up in respect, to drive in the
point that standing up is indeed a sign of "proper respect" to the anthem.

Jammu & Kashmir High court Judgement 2021

In a significant judgment, the Jammu & Kashmir high court has held that while not standing up for the
national anthem could be considered 'disrespect' to the anthem, it does not constitute an offence under the
Prevention of Insults to National Honour Act, 1971.

Critique of Part IV- A

• The terminologies used in Duties are vague in nature. E.g., Scientific temper, composite culture, the
spirit of enquiry.
• A good number of duties are not actually enforceable.
• Fundamental Duties has further increased the burden of Fundamental Rights.
• According to National Commission to review the working of the Constitution NCRWC -suggests that
duties must be further expanded: -
a. Duty to vote (SW EEP - Scheme.)
b. Duty to pay taxes.
c. Duty to instil the spirit of family values & responsible parenthood.
d. Duty of Industrial organisation to provide education to the children of their employees.
• Citizens perform these duties even without state coercion. Ideally. they should not be part of
fundamental law.
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operationalizing a programme initiated countrywide for the purpose of teaching fundamental duties and z
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making it enforceable in every educational institution. :::E

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 � U N I O N EXEC UTIVE -
� TH E PRES I D E NT O F I N D IA (PART- 1)
Article 52
• There s h a l l be a President of I n d i a .

Election of the President of India: 0 00:0 1 : 2 1

Provisions of the Constitution
• Article 54 - Electoral college
o The President s h a l l be elected by the mem bers of a n electora l col lege consisti ng of
► The elected members of both Houses of Parliament; a n d
► T h e elected members o f t h e Leg isl ative Assem b l ies (M LAs) o f t h e States.
o Explanation: I n this a rticle a n d Article 55, the state incl udes the National Capital Territory of Delhi
and
Union Territory of Pondicherry also.
o It does not include Members of Legislative Councils or nominated members i n the Pa rliament. The
exclusion of Mem bers of Leg isl ative Councils is beca use Leg isl ative Cou ncil don't exist i n all states.
o Even though the President is the Head of State at the centra l leve l , the state M LAs a re included in
the election, to avoid the situation where the President is j ust the 'creature of the ruling party at
Centre' a n d rem a i n s as the 'pale shadow' of the Prime Minister. Also, as the President is not merely
the head of the executive, but also is the symbol of unity and integrity of the nation. Therefore, the
M LAs also form a part of the Electora l Col lege.

Why is the election of the President a n indirect election?

• It is a n i n d i rect e lection beca use the President is the ceremonial/nominal/ constitutional

head. H e is the De-j u re head and the Pri m e M i n ister is the De-facto head. H e n ce a d i rect
e lection for the President wou l d resu lt i nto a waste of taxpayers' ti me, money a n d energy,
a d d i n g to the log istica l n i g htm a re for the E lection Com m ission of I nd i a .
• A d i rect election cou ld a lso l e a d t o attitudinal problems where t h e President wou l d sta rt
0 to misread his constitutional position a n d assu me de -facto powers thereby lead i n g to
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0 • A d i rect e lection for the President wou l d be fought on personal issues rather tha n real
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::r: strife based on rel igion, caste, class etc.
I • F u rthermore, a d i rect election wou l d com pel him to compromise on the statesmanship
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> he is s u p posed to show while h o l d i n g the office of the President. H e may become p rone
� to di rty politics, name calling, derogatory campaigning, etc.
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 0 00:32:11
• Article 55 - Manner of election of President
o (1) As far as practicable, there shall be uniformity in the scale of representation of the different
States at the election of the President.
o (2) For the purpose of securing such uniformity among the States as well as parity between the
States as a whole and the Union, the number of votes which each elected member of Parliament
and of the Legislative Assembly of each State is entitled to cast at such election shall be determined
in the following manner: -
Value of Vote of an
► (a) every elected member of the Legislative
Population of the state ( 1 9 7 1 census)
Assembly of a State shall have as many votes as M LA ·HOOO
Total number of Elected members
there are multiples of one thousand in the
quotient obtained by dividing the population
of the State by the total number of the elected members of the Assembly;
► (b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred,
then the vote of each member referred to in sub-clause (a) shall be further increased by one;
(Value of vote of an MLA from UP is 208 and that from Sikkim is 7, due to difference in
population and hence the number of MLAs)
► (c) each elected member of either House of Parliament shall have such number of votes as may
be obtained by dividing the total number of votes assigned to the members of the Legislative
Assemblies of the States under sub-clauses (a) and (b) by the total number of the elected
members of both Houses of Parliament, fractions exceeding one-half being counted as one and
other fractions being disregarded. (Value of vote of an MP was 708 in last Presidential elections)
o (3) The election of the President shall be held in accordance with the system of proportional �
representation (achieve votes above a certain quota) by means of the single transferable vote [
and the voting at such election shall be by secret ballot. <(
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system. It is not proportional as only one candidate is being elected; rather it is a majoritarian I
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system. It is neither a single transferable vote system, as multiple votes get transferred after >
elimination of the candidate receiving the least first preference votes. �
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o Explanation: In this article, the expression "population" means the population as ascertained at the
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last preceding census of which the relevant figures have been published. Provided that the
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reference in this Explanation to the last preceding census of which the relevant figures have been 0
published shall, until the relevant figures for the first census taken after the year 2026 have been z::::,
 Criticism of election system for President:
• It is a highly complex system.
• Value of votes of M LA from different states is different.
• It is neither proportional representation nor single transferable vote system.

Facts:
The Returning Officer:
• For Lok Sa bha or state assembly elections, genera l ly the District Collector/Magistrate is the
Returning officer.
• He/she performs the task of scrutinizing nomination papers of ca ndidates a n d fu rther rejects or
accepts the same.
• He/she ensures that the election is conducted in a proper lawful manner, incl u d i ng fair cou nting
of votes, announcement of resu lts, etc.
• For President's election the Retu rning officer is the Secretary General of Lok Sabha and Secretary
General of the Rajya Sabha, by rotation.

Notification:
• The Election Commission comes out with the notification for the election of the President within
60 days prior to the expiry of the term of the serving President.

Colour Coding:
• G reen Ba llot Pa per - M Ps
• Pink Ba llot Paper - M LAs
01:30:22
Other:
• Proxy vote and NOTA a re not allowed in the election of the President.

0 • Article 56 - Term of office of the President

1- o (1) The President shall hold office for a term of five years from the date on which he enters upon his
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v; ► (a) the President may, by writing under his hand addressed to the Vice-President, resign his
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a. office;
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I in the manner provided in article 6 1.
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shall forthwith be communicated by him to the Speaker of the House of the People.
z • Article 57 - A person who holds, or who has held, office as President shall, subject to the other
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provisions of this Constitution be eligible for re-election to that office.
 • Article 58 - Qualifications for election as President
o (1) No person shall be eligible for election as President unless he-
► (a) is a citizen of India;
► (b) has completed the age of thirty-five years, and
► (c) is qualified for election as a member of the House of the People.
o (2) A person shall not be eligible for election as President if he holds any office of profit under the
Government of India or the Government of any State or under any local or other authority subject to
the control of any of the said Governments.
Explanation: For the purposes of this article, a person shall not be deemed to hold any office of
profit by reason only that he is the President or Vice-President of the Union or the Governor of
any State or is a Minister either for the Union or for any State.

In order to discourage non-serious candidates:

1. According to the Representation of People Act (RPA) of 1951, each candidate has to submit a
security deposit of Rs. 15,000 which would be forfeited if the candidates does not get at least 1/6th
of the votes required to win the election.
2. Nomination form of the candidate to be subscribed by 50 electors (MPs a nd MLAs), acting as
proposers of the candidate and another 50 electors acting as seconders.

• Article 59 - Conditions of President's office 0 01:44:51

o (1) The President shall not be a member of either House of Parliament or of a House of the
Legislature of any State, and if a member of either House of Parliament or of a House of the
Legislature of any State be elected President, he shall be deemed to have vacated his seat in that
House on the date on which he enters upon his office as President. �
o (2) The President shall not hold any other office of profit. [
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o (3) The President shall be entitled without payment of rent to TH E PRESIDENT'S EMOLU M ENTS AND <(
PENSION ACT, 1951
the use of his official residences and shall be also entitled to
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such emoluments, allowances and privileges as may be d eterm i n es th e emohJ m ents, 0
determined by Parliament by law and until provision in that a l l' owa nces a n d previ l' eges 1-
•Any cha nges i n the emol u m ents of
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behalf is so made, such emoluments, allowances and t h e Presi d ent ' ha,v e to a. m m end t h i;s 0
privileges as are specified in the Second Schedule. Act en
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Taxation) Act, 1961, if the President chooses to su rrender his salary to the Consolidated Fund of I n d ia,
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 • Article 62 - Time of holding election to fill vacancy in the office of the President and the term of
office of person elected to fill casual vacancy
o (1) An election to fill a vacancy caused by the expiration of the term of office of President shall be
completed before the expiration of the term.
o (2) An election to fill a vacancy in the office of President occurring by reason of his death, resignation
or removal, or otherwise shall be held as soon as possible after, and in no case later than six months
from, the date of occurrence of the vacancy; and the person elected to fill the vacancy shall, subject
to the provisions of article 56, be entitled to hold office for the full term of five years from the date on
which he enters upon his office.
• Article 71 - Matters relating to, or connected with, the election of a President or Vice-President
o (1) All doubts and disputes arising out of or in connection with the election of a president or vice
President shall be inquired into and decided by the Supreme Court whose decision shall be final.
Note: 39th Constitutional Amendment Act, 1975 changed it to an authority to be created by
Parliament by law, however 44th Constitutional Amendment Act, 1978 restored the status quo
ante and made the Supreme court the decider on election disputes of the President. This petition
can only be filed by the losing candidate or 20 or more electors together
o (2) If the election of a person as President or Vice President is declared void by the Supreme court,
acts done by him in the exercise and performance of the powers and duties of the office of
President or Vice President, as the case may be, on or before the date of the decision of the Supreme
Court shall not be invalidated by reason of that declaration.
o (3) Subject to the provisions of this constitution, Parliament may by law regulate any matter
relating to or connected with the election of a President or Vice President
o (4) The election of a person as President or Vice President shall not be called in question on the
ground of the existence of any vacancy for whatever reason among the members of the electoral
college electing him.
• President and Vice Presidents Elections Act 1952
0 • President and Vice Presidents Election Rules 197 4
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 � U N I O N EXECUTIVE -
=ii TH E PRESI D ENT O F I N D IA (PART-2)
Vacancy in the office of the President: 0 00:00:26
• Death - Office temporarily to be held by Vice President
• Resignation - Office temporarily to be held by Vice President
• Impeachment (Article 61) - Office temporarily to be held by Vice President
• Setting aside election by the Supreme Court - Office temporarily to be held by Vice President
• Temporary Vacancy - Office temporarily to be held by Vice President
• Expiry of term - Office to be held by the current President until the new President assumes office.

VACANCY I N TH E OFFICE OF
PRESI D E NT

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� • As per the President (Discharge of Functions) Act, 1969, in the absence of the Vice President as well,
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C his absence as well, the judge next in seniority will officiate, so on and so forth.
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i= president. There is no scope for a member of the judiciary to become the president of the United States
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 Impeachment (Article 61) : 0 00:13:25

CONSTITUTIONAL ARTICLE
Article 61. Procedure for impeachment of the President: -
( 1) When a President is to be i m peached for violation of the Constitution, the charge sha ll be preferred
by either House of Pa rliament.
(2) No such charge sha ll be preferred u n less-
(a) the proposa l to prefer such charge is conta i ned i n a reso l ution which has been moved after at least
fou rteen days' notice in writi ng signed by not less than one-fo u rth of the tota l n u m ber of
mem bers of the House has been given of their intention to move the resol ution, and
(b) such resolution has been passed by a majority of not less than two-thirds of the tota l
mem bership of the House.
(3) When a charge has been so preferred by either House of Pa rliament, the other House shall
i nvestigate the charge or ca use the charge to be investigated and the President shall have the right to
a ppea r a n d to be represented at such investigation.
(4) If as a result of the i nvestigation a resol ution is passed by a majority of not less than two-thirds of the
tota l mem bership of the House by which the charge was investigated or ca used to be investigated,
decla ring that the charge preferred against the President has been susta ined, such resolution shall
have the effect of removing the President from his office as from the date on which the reso l ution is
so passed.

Explanation
• The only ground for impeachment of the President of India is 'violation of the constitution'.
• Proceeding for impeachment can be initiated in either House
of the Parliament. IMPEACH M ENT �
• A 14 day notice has to be served to the President, signed by at •The word �
least one-fourth of the total members of the house. ' I M PEACHM ENT'constitutionally and
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• After the expiry of 14 day notice, the resolution is discussed by legally only refers to the President of z
the house and put to vote. It must be passed by the highest India LL
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majority i.e. two-thirds of the total membership of the house. �
After getting passed, the resolution goes to the second house (investigating chamber) . z
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• In the investigating chamber i.e. the second house, the President is given opportunity to defend 0
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himself. When the second house also passes the resolution with a majority of two-thirds of the total c::
membership of the house, the President stands impeached. !l.
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• No such proceedings have been initiated for any president in Indian history. :I:
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0 00:21:47
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Powers and duties of the president: >
• Article 53: The executive power of the Union shall be vested in the President and shall be exercised �
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by him either directly or through officers subordinate to him in accordance with this Constitution. u
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• Executive power denotes the power to carry out business of the government. It also denotes the
power that remains after removing the judicial and legislative powers from the total corpus of the
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 • Article 74 - There shall be a Council of Ministers with the Prime Minister at the head to aid and advise
the President who shall, in the exercise of his functions, act in accordance with such advice:
o Provided that the President may require the Council of Ministers to reconsider such advice, either
generally or otherwise, and the President shall act in accordance with the advice tendered after
such reconsideration.
o The question whether any, and if so what, advice was tendered by Ministers to the President shall
not be inquired into in any court.
Additional Information:
• As per the 42 nd Constitutional Amendment Act, 1976, the President was bound to act as per the
aid and advice of the council of ministers. It codified the obvious.
• However, the 44th Constitutional Amendment Act, 1978, mentioned that the President can send
back the advice for reconsideration. After reconsideration, he shall act on the revised advice of the
Council of Ministers.
• However it must be understood that the President is not bound by every advice of the Council of
Ministers. He is guided by his oath of preserving, protecting and defending the constitution if the
advice is unconstitutional. The president even though does not have a legal authority, but has a moral
authority.
• For eg. -Former President K R Narayanan in 1997 sent back the advice of the Council of Ministers to
impose President's Rule in Uttar Pradesh.

Executive Powers:
0 00:53:35

• Administrative powers
o Article 77: Conduct of business of the Government of India
► ( 1) All executive action of the Government of Ind ia shal l be expressed to be taken in the name of
the President.
► (2) Orders and other instruments made and executed in the name of the President shal l be
authenticated in such manner as may be specified in rules to be made by the President, and the
valid ity of an order or instrument which is so authenticated shal l not be cal led in q uestion on the
ground that it is not an order or instrument made or executed by the President.
► (3) The President shal l make rules for the more convenient transaction of the business of the
Government of India, and for the allocation among Ministers of the said business.

Additional information:
• Government of India (Transaction of Business) Rules, 1961 and Government of India (Allocation
of Business) Rules, 1961 are the rules under which ministries are created, abolished, divided,
amalgamated, etc.
• These rules are framed under Article 77(3) .

o Right to seek information

Article 78 - Duties of Prime Minister as respects the furnishing of information to the President,
etc.-
► It sha l l be the d uty of the Prime M i n ister-
► (a) to com m u n icate to the President a l l decisions of the Cou ncil of M i n isters relating to the
a d m i n istration of the affa i rs of the U nion and proposa ls for legislation
► (b) to furnish such information relating to the administration of the affa i rs of the U n ion a n d
proposa ls for legislation as t h e President m a y ca ll for; and
► (c) if the President so req u i res, to submit for the consideration of the Cou ncil of M i n isters a ny
matter on which a decision has been ta ken by a M i nister but which has not been considered by
the Council.
o Article 75: Other provisions as to Ministers: -
► ( 1) The Prime Minister shall be appointed by the President and the other M i n isters sha l l be
a p poi nted by the President on the advice of the Prime M i nister.
■ ( lA) The tota l n u m ber of M i nisters, including the Prime M i nister, in the Cou ncil of M i n isters
sha ll not exceed fifteen per cent. of the tota l n u m ber of mem bers of the House of the People.
■ ( 1B) A m e m ber of either House of Pa rliament belonging to a ny politica l pa rty who is
disq u a l ified for being a m e m ber of that House under pa ragra ph 2 of the Tenth Sched u l e shall
a lso be disq u a l ified to be a p poi nted as a M i nister u nder clause ( 1) for d u ration of the period
com mencing from the date of his disq u a l ification till the date on which the term of his office
as such m e m ber wou l d expire or where he contests a ny election to either House of
Pa rliament before the expiry of such period, till the date on which he is declared elected,
whichever is earlier.
► (2) The M i n isters shall hold office d u ring the pleasure of the President. (2) The M i nister shall
hold office d u ring the pleasure ofthe President.
► (3) The Cou ncil of M i n isters sha ll be collectively responsible to the House of the People.
► (4) Before a M i nister enters u pon his office, the President shall a d m i n ister to him the oaths of �
office and of secrecy accord i ng to the forms set out for the pu rpose in the Th i rd Sched ule l�
► (5) A M i n ister who for a ny period of six consecutive months is not a m e m ber of either House of
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► (6) The sa l a ries and a l lowa nces of M i n isters sha l l be such as Pa rli a ment may from time to time by LL
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law determine a nd, u ntil Pa rl iament so determ ines, shall be as specified i n the Second 1-
Sched ule . z
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• Purity of administration ensures that the administration is clean, non-corrupt, lawful and rules >
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• The president can act on evidence against the Governor, the Council of Ministers as well as the u
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Prime Minister, depending on the graded scale of the strength of evidence with the highest scale of
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 • Military Powers
o President of India is the supreme commander of the defense forces.
o He/she ca n declare war, conclude peace on the advice of the Cou ncil of M i nisters headed by the
Prime M i n ister.
• Diplomatic Powers
o President is the Head of state and often represents India in i nternational affa i rs.
o He appoints India's diplomatic missions a b road l i ke Am bassadors, H igh Com missioners, etc.
o He also receives diplomatic missions from a b road.
• Legislative Powers
o President is a part of the Parliament but not a member.
o He has the power of addressing, summoning and proroguing the house, giving assent to the bills
passed by the Pa rl i a ment.
o He ca n a lso dissolve the Lok Sabha.

• Process of calling all members of the

Parliament to meet
SU M MON

• P ro rogation is t h e e n d of a sessi o n .
P ROROGATIO N

• Adjou r n m e nt terminates the sitting of

the House w h ic h meets aga i n at t h e time
ADJOURN M E NT a ppoi nted for t h e next sitting
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Com mission, etc.
LL o Article 85 - Sessions of Parliament, prorogation and dissolution.
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o Article 86 - Right of President to address and send messages to Houses
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i= and for that pu rpose req u i re the attenda nce of mem bers.
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Bill then pending i n Pa rliament or otherwise, a n d a House to which a ny message is so sent shall
z with a l l conven ient dispatch consider a ny matter req u i red by the message to be ta ken i nto
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 o Article 87 - Special address by the President
► At the com mencement of the first session after each general election to the House of the
People and at the commencement of the first session of each year the President shall address
both Houses of Pa rlia ment assem bled to g ether and i nform Pa rlia ment of the ca uses of its
sum mons.
► Provision sha l l be made by the ru les re g u latin g the proced u re of either House for the allotment
of time for d iscussion of the matters referred to i n such address.

Explanation:
► The President g enera l ly talks about the retrospective record of the achievements of the
g overnment and also a bout the policy proposals that the g overnment is l i kely to fol low i n the
ensuin g yea r.
► This address is not actua l ly that to the President, it's prepared by the U n ion Government.
► To comment and skipped part of speech by the President a re beyond the norms of
constitutional propriety.
► At the end of the d iscussion of the President's address, a motion of thanks is passed by the
Pa rlia ment. If it is not passed, it amounts to almost a vote of no-confidence against the
government.

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 iE
UNION EXECUTIVE -
THE PRESIDENT OF INDIA (PART - 3)
• Legislative power also includes power to nominate members.
o He/she can nominate 12 members to the Rajya Sabha from amongst persons who have
distinguished themselves in fields of art, science, social service, literature, on the advice of Council
of Ministers.
o Earlier he/she could also nominate 2 Anglo-Indians to the Lok Sabha, which has now been done
away with. (104th Constitutional Amendment Act extended the reservation for Scheduled Castes
and Scheduled Tribes in the House of the People and the Legislative Assemblies of the State for
another 10 years and ended that of the Anglo-Indians).

Bills requiring prior sanction of the President for legislation: 0 00:05:39

• Article 3 - bills regarding reorganization of states. It requires president sanction before they are
introduced in the parliament.
• Money Bills: Article 110 in the Constitution of India.
• Article 27 4: Prior recommendation of President required to Bills affecting taxation in which States
are interested.-
( 1) No Bill or amendment which imposes or varies any tax or duty in which States are interested, or
which varies the meaning of the expression "agricultural income" as defined for the purposes of the
enactments relating to Indian income-tax, or which affects the principles on which under any of the
foregoing provisions of this Chapter moneys are or may be distributable to States, or which imposes
any such surcharge for the purposes of the Union as is mentioned in the foregoing provisions of this
Chapter, shall be introduced or moved in either House of Parliament except on the recommendation of
the President.

Explanation
� Prior recommendation of President required in: -
� o Bills regarding taxes in which states are interested
< o Any bill trying to alter the term 'agricultural income'.
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z o Any bill trying to alter the principle of distribution of revenues between the centre and the states.
LL o Any bill trying to impose a surcharge for the purpose of the Union.
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Notwithstanding anything in article 30 1 or article 303, the Legislature of a State may by law-
w (a) impose on goods imported from other States [or the Union territories] any tax to which similar
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(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or
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Explanation
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 impose reasonable restrictions on the freedom of trade, commerce or intercourse with or within that
state.
• Article 255: Requirements as to recommendations and previous sanctions to be regarded as
matters of procedure only.-
No Act of Parliament or of the Legislature of a State and no provision in any such Act, shall be invalid by
reason only that some recommendation or previous sanction required by this Constitution was not
given, if assent to that Act was given-
(a) where the recommendation required was that of the Governor, either by the Governor or by the
President;
(b) where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by
the President;
(c) where the recommendation or previous sanction required was that of the President, by the
President.

Explanation:
If in case the bill which required sanction of the President before its introduction gets introduced
without the sanction, then is it deemed to be passed once the President gives assent to it after its
passage in the Parliament. Hence, no extra procedure is required and it would be considered a valid
act.

Assent to legislation and veto powers:

0 00:17:25

• Veto power is a power held by any entity through which it can block a measure from going through.
• Absolute Veto - When the President rejects the bill after its passage and the bill becomes dead.
• Suspensive Veto - When the President rejects the bill after its passage, but the legislature passes the
bill again by simple majority to override the veto of the President and the bill becomes an Act. �
• Qualified Veto - When President rejects the bill after its passage, but the legislature passes the bill l�
again by special majority (greater than simple majority) to override the veto of the President and the
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bill becomes an Act. z
• Pocket Veto - When the President does not accept or reject the bill and takes no action. (In the United LL
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States, the bill is deemed to be passed if the President does not act upon it within 10 days). �
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Absolute Veto ✓ PEPSU (Appropriation) Bill, 1954 �
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 • In India, the president cannot return a Constitutional Amendment Bill or a Money Bill for
reconsideration of the Parliament.

Power to disallow state legislations: 0 00:32:04

• Article 200: Assent to Bills:-When a Bill has been passed by the Legislative Assembly of a State or,
in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature
of the State, it shall be presented to the Governor and the Governor shall declare either that he assents
to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the
President:
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent,
return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will
reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of
introducing any such amendments as he may recommend in his message and, when a Bill is so
returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the
House or Houses with or without amendment and presented to the Governor for assent, the Governor
shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but shall reserve for the consideration of the
President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the
powers of the High Court as to endanger the position which that Court is by this Constitution designed
to fill.

Explanation:
o In the case of the Governor, apart from veto powers enjoyed by the President, he has one more
power of reserving the Bill for the consideration of the President under Article 200.
� o When the President receives the consideration request from the Governor, he can disallow the
[ passage of that particular Bill.
< o The reservation of the Bill for President is mandatory when the bill threatens the powers of the
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w consideration of the President, the President shall declare either that he assents to the Bill or that he
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w Houses shall reconsider it accordingly within a period of six months from the date of receipt of such
> message and, if it is again passed by the House or Houses with or without amendment, it shall be
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o For a money bill reserved for consideration of the President, he can accept or reject it, but cannot
z return it.
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 o For an ordinary bill, the President can accept it, reject it or return it. On returning, the state
assembly must reconsider the bill within a period of six months. Even if the assembly passes the bill
again, the President is not obliged to give assent to the bill.
o Hence it is said that the Union has absolute veto over state legislation.
o As per the recommendation of the Sarkaria Commission, the central government must make up its
mind on the state legislation within 4 months.
o The Punchhi Commission recommended a period of 6 months for the same, in order to avoid the
violation of the federal scheme.

0 00:45:58
Ordinance making power of the President
• Article 123: Power of President to promulgate Ordinances during recess of Parliament:
o ( 1) If at any time, except when both Houses of Parliament are in session, the President is satisfied
that circumstances exist which render it necessary for him to take immediate action, he may
promulgate such Ordinances as the circumstances appear to him to require.
o (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of
Parliament, but every such Ordinance-
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six
weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions
disapproving it are passed by both Houses, upon the passing of the second of those resolutions;
and 88
(b) may be withdrawn at any time by the President.
Explanation.- Where the Houses of Parliament are summoned to reassemble on different dates,
the period of six weeks shall be reckoned from the later of those dates for the purposes of this
clause.
o 3) If and so far as an Ordinance under this article makes any provision which Parliament would not �
under this Constitution be competent to enact, it shall be void. l�
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are not in session. �
• It is passed by the executive headed by the President, and it should get passed/approved from the two
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houses of Parliament within six weeks of its reassembly. After six weeks, the ordinance automatically
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make laws on areas over which the Parliament can make laws), but it is not a parallel or a coordinate :I:
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power. It is available to the President only when the House is not in session.
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months plus six weeks as the maximum gap between two sessions of the Parliament cannot be more
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 be counted from later of those dates.
• The ordinance making power is neither available in the UK nor in the USA as it is considered a
violation of the separation of powers principle.

History of ordinance making power in India:

• The British had introduced the ord i nance maki ng power i n I n d ia in 1861.
• Til l 1947, no less than 400 ordinances were pro m u lgated by the British. They used as a tool to
disregard popular opinion.
• Post-independence, i n the constituent assem bly debates, the ord i nance maki ng power came to
be cal led a 'necessary evil' and was supported by leaders like Jawaharlal Nehru and BR
Ambedkar. It was built on the trust that it would not be abused .
• From 1952 to 1964, 66 ordinances were pro m u lgated by the Nehru government.
• In 1978, demonetization was routed through an ord i nance.
• Till 2014, 668 ordinances have been pro m u lgated. I n the last 7 years, 78 ordinances have been
pro m u lgated.
• I n totality, since independence, on an average, more than 10 ordinances were promulgated per
year.

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> 'Fait Accompli'.
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• Constitutional expert HM Seervai justifies the use of ordinance making power in India because India
has the provision of judicial review.
• For eg. There is a law in India concern ing an activity for the past 100 years. However under the powers
of judicial review, the judiciary strikes the law down on the basis of its unconstitutionality. This gives
rise to a legal vacuum.
• Hence, the ordinance promulgation is justified in order to fi l l such a vacuum created by jud icial review.
• However many other constitutional experts counter this view by givi ng the example of USA where the
jud icial review is even stronger, but there is no provision for an ordinance.

Issues:
• Cooper Case, 1979 -The wisdom of introducing an ordinance cannot be questioned, the only check
would be that of mala fide intent.
• But there is a difference between law made by the Parliament and law made by promulgating an
ordinance. A law made by the Parliament is backed by the collective wisdom of the legislature, which is
not the case with an ordinance. Hence there is a need to question the wisdom of the ordinance.
• DC Wadhwa Case, 1986-This case was in context of re-promulgation of ordinances. In the 14 years
between 1967 to 1981, the different Bihar governors promulgated 256 ordinances which were kept
alive for 1 to 14 years, without the approval of the state assembly, through repeated re­
promulgation. In the DC Wadhwa case it was said that such kind of re-promulgation of ordinances was
'fraud on the constitution.'
• On several occasions, bills which are pending in the Parliament are promulgated by an ordinance.
• When a law is made through an ordinance and decisions are taken under that law. However even
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Hence an ordinance has permanent legal effects.
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questioned in the court of law. Also, the cou rt said that the decisions taken under a lapsed ordi nance �
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Solutions proposed by constitutional experts: >
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reconsideration with respect to his duty to preserve, protect and defend the constitution, thereby
preventing abuse of the ordinance power.
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 Position of the President: 0 01:38:15
• There are 3 schools of thought debating the position of the President in India.

Ru bber Stamp - Golden

Zero Constitutiona I

• N o real powe r with the • They i nterpret the • A balanced view

P resident
• N o real d eci sion making
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constitution too literally
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P resid e nt has
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discretiona ry powers"
as a guardian of the
co nstitution.

Constituent Assembly on the position of President:

• According to Dr. Ambedkar, the President represents the nation, but does not rule it. (The draft
constitution also had a 'schedule of instructions' for the President and the Governor as ceremonial
heads to act on the advice of Council of Ministers, which was later dropped in the final constitution, as it
was considered obvious)
Supreme Court Judgements on President as Ceremonial head:
• Ram Jawaya, 1955
UN Rao, 197 1 - Even when the Lok Sabha gets dissolved after its tenure completion, the Council of
Ministers which was a product of it does not get dissolved, as there is no situation mentioned in the
� constitution under which the President can exercise his powers without the aid and advice of the
[ Council of Ministers
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Constitution Articles on the position of President as ceremonial head:
LL • Article 361 - The president or governor cannot be personally questioned in any court of law for any
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UNION EXECUTIVE -
THE PRESIDENT OF INDIA (PART - 4)
President's Discretion: 0 00:00: 1 1
• Although there are provisions outlining the discretionary powers of the governor, there is no such
provision mentioned regarding the discretionary powers of the President in the constitution of India.
• However, there are certain situations where the President can act independently of the Council of
ministers:
• Circumstantial discretion
o Choosing the Prime Minister who will form the
government in a hung Lok Sabha when no party enjoys President's
the majority. Discretion
o Duty to preserve, protect and defend the Constitution.
o To reject the advice of the Prime minister seeking Interpretation
Circumstantial
dissolution of the House and asking for fresh election of the
discretion
when he has lost majority in the House. The President can constitution
look at the possibilities to form an alternative government.

Note: The President can dissolve Lok Sabha only on the advice of the Council of Ministers, but the advice is
binding only if the government is a majority government.

o In the matter related to disqualification of a Member of Parliament, he need not consult the Council
of Ministers, but the Election Commission of India under Article 103.

• Interpretation of the Constitution

o Article 74-returning the advice of the Council of ministers for reconsideration
o Article 78-seeking information from the Prime Minister
� o Pocket veto - India Post Office (Amendment) bill, 1986
[ o Suspensive veto-Office of Profit Bill, 2006
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0 Moral Authority of the President:
1- When the President is confronted with an unconstitutional advice, he must bring to bear on the
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a. • Article 74 - Send the advice of the Council of Minister for reconsideration
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:I: For eg. President KR Narayanan sent back the advice to impose President's rule in UP in 1997
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> Thus, it can be said that the President is like a 'Great Grandfather in a large joint family'. The joint family
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Role of the President: 0 00:22:27

z • Constitutional Head
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 • Providing a stable government
• Exercising general oversight over the entire political system and having the right to warn and the right
to be consulted.
o In a limited manner, he can question government policies, bills and appointments as well.
o In a limited manner, he can also comment on the affairs of the state, but criticism of the
government must be muted and not strong, in a nature of raising an alarm.
o The President can admonish the Prime Minister, not publicly but in private.
o He can receive opposition leaders and forward their demands to the Prime Minister.
o He can decide the stipulated time period to be given to the Prime Minister to prove his majority in the
House.

P res i d e nt's Ro l e
Wo rki ng P resi d e nt
R u bber Sta m p Activist P resi d e nt
( M i d d l e Pat h )

A Working President (term coined by former President KR Narayanan): � 00:32:33

• Avoiding the two extremes of being a rubber stamp or an activist President.
• He would neither be a blind follower of the advice nor will be over involved in the governance issues.

Additional information:
• Apolitical President-President should not have any bias towards any party, be equidistant form all
political parties and decide matters on the merit of the situation and facts of the case.
• Non-political President-A person having no background from the field of politics Eg. Dr. APJ Abdul �
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Q. Re.sorting t o ordinances has always raised concern on violation of t h e. spirit of separation of c::
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 U N I O N EXECUTIVE -
COU NCI L O F M I N ISTERS (PART- 1)
Portfolio System: 0 00:00:22
• It is the division of government work into separate departments and assigning these departments to
specific individuals who are called Ministers. For eg. Finance Portfolio, Defense Portfolio etc.
• Portfolio is a group of activities sufficiently related or allied to each other, which when housed in an
organization is called a department or a Ministry.
• Lord Canning was the person to introduce the portfolio system in India in 186 1.

Council of Ministers (CoM) : 0 00:06:42

• Council of Minsters are real executive codified under Article 7 4 of the Indian Constitution.
• The overall size of the CoM cannot exceed 15% of the total Lok Sabha strength.
• Following hierarchy exists among the Council of Ministers:

Cabinet Ministers

Minister of State (I ndependent

charge)

Minister of State

Deputy Min ister

Parliamentary Secretary

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z cabinet minister can also be appointed without a portfolio. They generally head the Big 4 ministries -
Defense, Finance, Home and External Affairs. He attends the meeting of the Cabinet on his own right
0 and is generally assisted by a Minister of State or a Deputy Minister or both.
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> • Minister of State: They are appointed within the portfolio of the cabinet minister and work under the
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• In the earlier times, the hierarchy was extended below the minister of state to include the position of a
z Deputy Minister. The deputy Minister was kind of a trainee post to train the future ministers. In recent
z times it has been done away with.
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 • Below the Deputy Minister in the hierarchy was the Parliamentary Secretary. It was a ministerial post.
His responsibility was to take care of the parliamentary responsibilities with respect to the ministry like
ensuring smooth passage of the bills, answering questions on behalf of the ministry, etc. However this
position has largely gone dormant since 1967.

Additional information:
• The word 'Cabinet' appears only once in the Constitution under Article 352, relating to the Emergency
provisions, as provided under the 44th Constitutional Amendment Act, 1978.

Formation of Council of Ministers: 0 00:28:38

• In case of a clear majority, the President must appoint the leader of the single largest party.
• In case of a hung Lok Sabha, as per recommendation of the Punchhi Commission following order
should be followed by the President for inviting political parties to form the government:

A pre-election coalition which has the numbers to form the government

Single largest coalition with support of others

Single largest Party with support of others

Post-election Majority Coalition

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have ideological and policy convergences. Whereas a post-election coalition did not coalise before the z
elections. Hence their motive of coming together usually is acquisition of power. Hence political parties LL
diametrically opposite to each other may also come together. This builds an inherent sense of 0
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government or accept ministerial positions. Eg Left front in the UPA government. Hence this coalition >
tends to be a bit unstable than the majority coalition. �
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• After the appointment of the Prime Ministers, all other ministers are appointed by the President on the u
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advice of the Prime Minister. While advising, the Prime Minister has certain considerations to ensure,
such as : z
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 o Adequate Regional Representation
o Representation to various regional communities
o Representation to backward classes - SC, ST, OBCs
o Representation to women
o Representation to youth
o Representation to party heavy-weights
o Accommodate coalition partners
o High integrity
o Capacity for sustained application to work

Deputy Prime Minister: 0 00:55:24

• It is not a codified position and also not mentioned in the rules of business.
• The existence of the position of Deputy Prime minister as well as the responsibilities to be bestowed on
him/her depends totally on the discretion of the PrimeMinister.
• In India, we have had 7 deputy ministers till date.
o PM Nehru appointed Deputy PM Sardar Patel
o PM Indira Gandhi appointed Deputy PM Morarji Desai
o PM Morarji Desai appointed Charan Singh and Jagjivan Ram as Deputy Prime Ministers
o PM Charan Singh appointed Deputy PM YB Chavan
o PM V P Singh appointed Deputy PM Devi Lal
o PM Chandrashekhar appointed Deputy PM Devi Lal
o PM Vajpayee appointed Deputy PM Advani

0 00:58:11
Circumstances under which the position of a Deputy PM is created:
• When there are two leaders of near equal stature and equally matched Eg. Nehru and Patel
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Morarji Desai, Vajpayee and Advani.
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z Size of Cabinet and Council of Ministers:

0 00:59:51

• Advantages of a small sized cabinet:

o More elaborate and effective discussions and deliberations
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z o Better coordination
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o Easier to maintain secrecy of meetings and decisions
> o Less number of tongues tied to the government's point of view and hence opportunity for taking an
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policy outlook. Eg. Integrated transport policy, integrated energy policy.
z o A lesser size of the Council ofMinisters allows more number of big leaders to go among the masses
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Kitchen Cabinet: 0 01: 13:43
• It is a l so known as the 'inner cabinet'. It cou l d include some Cabi net m i n i sters, Principal Secreta ry to
the Pri me M i n isters, some reti red b u reaucrats, pol itical leaders a n d even at times some godmen.
• It is not a n official org a n i zation.

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 m U N I O N EXEC UTIVE - CO U N C I L O F M I N I STERS
(PART- 2) AN D PRI M E M I N I STER

Cabinet and its functions: 0 00:00:28

• The term parliamentary form of government is a misnomer; the right term in fact is the 'cabinet
government' as it is the supreme executive authority of the government.
• It is also the prime legislative body in the sense that it decides the date of summoning the parliament,
the duration of the session, the agenda to be discussed in the parliament, etc.
• As the cabinet is the creation of the parliament, it can be said that the 'creation dominates the creator'.
• Cabinet responsibility has degenerated into 'cabinet responsiveness'. It means that whatever debates
and issues arise on the floor of the two houses, the cabinet needs to respond to them. But even if the
cabinet's response is unsatisfactory; the Parliament cannot remove the cabinet, as the cabinet is safe
behind its majority in the House.
• The Cabinet is also the principal policy making body.
• It also provides for government-wide coordination.
• It provides chief executives to the principal organs of the government which are the ministries.
• Budget preparation, enactment and execution are also the functions of the cabinet.
• It is also responsible for making appointments to the senior positions of the government.
c:: • The Cabinet being the leader organization of the nation has to perform the function of crisis
w management.
z Q. Cabinet Dictatorship is a stark reality, but no Cabinet can become omnipotent. Explain.
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� o Extensive powers of the cabinet
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a.. o Supreme executive authority
C o Prime legislative body
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• No Cabinet can become omnipotent (checks and balances on the cabinet ):
� o Judicial checks
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o Legislative checks
c:: o Media checks
w o Public opinion
z o Independent constitutional and statutory bodies like Election Commission, CAG, NHRC etc.
o Party Pressure
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Cabinet Committees:
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j:: • They save the time of the cabinet by helping in resolving minor conflicts, bargaining and
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cabinet.
z • They facilitate more effective debate and deliberations.
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 charge which are not a part of cabinet meetings.
• They also keep a check on arbitrary decisions by individual ministers.
• They facilitate best possible utilization of ministerial expertise.
• They safeguard the principle of collective responsibility as even junior ministers can be appointed in
the committees and be a part of the decision making process.
The number, composition, nomenclature, size of the cabinet committees is under the sole prerogative of
the Prime Minister. In 1947, there were just 2 cabinet committees, whereas in 2019, there are 8 cabinet
committees as follows:
• Cabinet Committee on Appointments chaired by Prime Minister
• Cabinet Committee on Accommodation chaired by Home Minister
• Cabinet Committee on Economic Affairs chaired by Prime Minister
• Cabinet Committee on Parliamentary Affairs chaired by Defense Minister
• Cabinet Committee on Political Affairs (Nerve center of Government of India) chaired by Prime
Minister
• Cabinet Committee on Security chaired by Prime Minister
• Cabinet Committee on Investment and Growth chaired by Prime Minister c:::
• Cabinet Committee on Employment and Skill Development chaired by Prime Minister w
Usually these cabinet committees last for the entire 5 year term of the government. However the Prime z
Minister can dissolve any of it if he wants to. Hence they are called as Standing Cabinet Committees. �
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Problems with the working of Cabinet Committees: 0 00:56:32 �
• Some of them are set up on trivial issues like accommodation. 0
• Junior ministers can be appointed but are rarely appointed. z
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• Meetings do not take place regularly.
• Membership depended more on political stature than genuine ability to contribute.
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• The Prime Minister chairs most of the cabinet committees, thereby compromising the revisory
jurisdiction of cabinet. (ARC recommended that the cabinet committees should not be headed by the [
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Adhoc Cabinet Committees: 0 01:01:07 z

• They are created for a temporary basis particularly for discussing and deliberating on a specific issue
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or a bill. They are dissolved once the issues are resolved. 0
• They are often referred to as Groups of Ministers (GoM). uz
• During the UPA II tenure, no less than 78 GoMs were set up. ::J
• In order to address the policy paralysis with the GoMs, Empowered Group of Ministers (EGoMs) were 0
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set up. It was supposed to take faster decisions even bypassing the cabinet. This eroded the collective
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responsibility of the cabinet. >
• In 20 14, all these GoMs and EGoMs were discontinued. �
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Position of the Prime Minister: 0 01:07:11
Two Schools of thought: z
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• Primus Inter Pares - First among equals z
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 o The Prime Minister does not behave like a boss or a captain. To elaborate, if all cabinet members
are standing in a line, the Prime Ministry would stand ahead of the line. The Prime Minister is there
mainly performing the coordinating function and final decisions are taken by the cabinet as a whole.
Eg. PM Manmohan Singh
• Luna inter stellas minores - A moon among lesser stars.
o The Prime Minister is effectively the boss; he is the captain of the ship of the state. All others are his
juniors and subordinates. It is often called the Prime Ministerial government. Eg PM Nehru, PM
Indira Gandhi, PM Rajiv Gandhi, PM Modi.
• PM Atal Bihari Vajpayee was said to be a blend of caution and firmness thereby integrating elements
of both schools of thought.

Factors producing a Prime Ministerial government: 0 01:16:18

• Institutional factors:
o He is the Chairperson of cabinet and council of ministers.
o He allocates portfolios and reshuffles ministers.
0:: o His death or resignation dissolves the whole council of ministers.
w o He automatically becomes the leader of whichever house he is a member.
� o He chairs important government bodies like NITI Aayog etc.
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w Office (PMO).
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� o He holds some of the most critical portfolios like the Department of Space, Department of Atomic
C Energy, Ministry of Personnel, etc.
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o He is the tallest leader in the country and in his party.
o He is the celebrity vote-getter.
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• Role vis-a-vis the President:
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o Article 75-Prime Minister appointed by the President and pleasure doctrine
0 o Article 78 - Duty of the Prime minister to keep the president duly informed about the major
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z • Role vis-a-vis the cabinet:
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Additional information:
• Particularly since 20 14, the Prime Minister can deal with and take decisions on 'all policy issues' as
per the website of the Cabinet Secretariat.
• Before this, the usually government decision making started with circulating a 'cabinet note'
regarding the policy amongst all cabinet ministers. The idea is to get the clearances.
• If there are objections raised, the concerned ministry responsible for origin of the policy consults the
secretaries of ministries which have raised objections and are asked to form an inter-departmental
committee.
• If the matter still remains unresolved, then the matter goes to the cabinet committee and further to
the cabinet to take the final decision.
• Thus, if a decision concerning a policy is taken by the Prime Minister without consulting the
concerned minister, it will adversely affect the individual responsibility of the minister to the
Parliament.
• It also compromises the collective responsibility of the cabinet.

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o Informally he is also expected to mediate between the two houses in case of a deadlock.
o The Prime minister's responsibility to the parliament should not merely be on paper, but it should
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be a living reality. It can happen if he attends the session regularly, speaks and answers questions
on the floor of the house, defends his government and leads the debate. [
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o He was always the chairperson of the planning commission and the National Development Council
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• Role vis-a-vis External Affairs:
o Actively involved in improving and engaging with foreign partners

10
Previous Year's Questions
Q. The. size. o+ the. cabinet should be as big as governmental workjustifies and as big as the
Prime Minister can manage as a team. How far is the efficacy o+ a government then
inversely related to the. size. of the. cabinet ? Discuss. (201"1)

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 U N I O N EXECUTIVE - P M O, CABI N ET
AN D CABI N ET S ECRETARIAT
Cabinet Secretariat: 0 00:00:38
• It is the organization which has been specifically created to support the cabinet collectively, the cabinet
committees and also the Prime Minister. The Cabinet Secretariat works under the general control and
direction under the Prime Minister, who is the Chairperson of the Cabinet.
• It is a principal staff agency. It is an important organ of the Government of India, that look after the
overall administration of the government.
• It consists of the following:
o Civil wing: Provide secretarial assistance to cabinet, cabinet committees, Prime Minister etc.
o Military wing: Provides secretarial assistance to the defense committee of the cabinet, National
Security Council, etc.
o Intelligence wing: Assist the Research and Analysis Wing (R&AW)
o Directorate of Public Grievances: Address citizen grievances
o National Authority Chemical Weapons Convention
o Office of the Principal Scientific Adviser

Functions of the cabinet secretariat: 0 oo:07: 18

• Secretarial assistance to cabinet and cabinet committees: Circulating agenda of the meeting,
recording the minutes of the meeting, circulating the minutes, entertaining objections to the minutes
etc. thereby enabling the cabinet to function on the principle of collective responsibility.
• It is also responsible for implementation of rules of business in letter and spirit.
� • It is the chief coordinating agency of the Government of India.
0:: • It keeps the president and the ministers informed about the activities of all other ministries by way of
w a monthly summary.
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tuz Cabinet Secretary: 0 00:16:50

a5 • He heads the Cabinet Secretariat.
• It is the senior most position an IAS officer can reach. The Cabinet Secretary is considered to be the
C head of the civil services in the country.
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tuz • He is the principal adviser to the Prime Minister.
a5 • He is often regarded as the conscience keeper of the civil service of the nation - whatever behavior
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6 • He also acts as a buffer between the political executive and the civil service of the nation and
� protects both from undue encroachment of the other.
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• NR Pillai was the 1st Cabinet Secretary and Rajiv Gauba is the present cabinet secretary.
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• It was initially created as the Prime Minister's Secretariat (PMS) in 1947. It was changed to PMO in
1977 under the Janata Party government.
• Initially, it was envisaged as an institutionalized private secretary, but over the years most of the
policy making takes place in the PMO.
• In the PMO there is a Minister of State, a Principal Secretary (presently PK Mishra), the National
Security Advisor, among other officials.

Functions of the PMO: 0 00:33: 17

• It helps in dealing with and examining all references and files under the rules of business which have
to come to the Prime Minister.
• It helps the Prime Minister in the discharge of his overall responsibilities as the CEO of the country.
• It helps the Prime Minister in dealing with departments which are under his direct charge like atomic
energy, space, etc.
• It helps the Prime Minister in dealing with responsibilities as the chairperson of NITI Aayog.
• lt takes care of the public relations side of the PM's job.
• Any issue that does not fall under purview of any ministry is also looked after by the PMO. Hence it is
called the 'residual legatee' of the government of India.
• PMO also manages the funds like PM Relief Fund, PM National Defense Fund, PM CARES Fund, etc.
• During the Indira Gandhi's government, all important decisions
like nationalization of banks, abolition of privy purses, imposing
emergency, processing intelligence reports, overseeing
appointments in the governments were taken by the PMO
• During the Rajiv Gandhi government, the PMO became so w
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personality and his strength in the Lok Sabha. Its role waxes and
wanes depending on the stature of the Prime Minister. Generally the PMO tends to be weak during a C
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• It is said that the PMO is one of the youngest organizations in the government, yet one of the most
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• Effectively deal and interface with the backend offices of Presidents and Prime Ministers of other countries. z
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 Central Secretariat: 0 00:57:10
• The government of India works on the principle of 'split system' in which a ministry's overall
functioning is divided into two parts:
o Policy making
o Implementation of the policy
• For eg. The Health Department is involved in the policy making and the Directorate of Health is
involved in implementation of the policy. Similarly, the Home department is involved in policy making
and its implementation is done by the Directorate General of Police.
• In the policy making departments, there are usually generalized bureaucrats. Whereas in the
implementation departments, there are specialists.
• All the headquarter organizations of the central ministries put together form the central secretariat. All
the headquarter organizations of the state ministries put together form the state secretariat.
• The Central secretariat is the organization responsible for the administration of Union List subjects

Functions of Central Secretariat:

• Policy making: Providing background information, facts and figures, all relevant Supreme Court
judgments with respect to the policy and policy advice for the most appropriate course of action to the
minister.
• Legislative function: Preparing draft bills and draft legislations, preparing ministers to respond to the
questions raised on the floor of the House to his ministry.
� • Preparation, enactment and execution of the Budget of the ministry.
ii: • Exercise general supervision over implementation of the policies without getting involved in the day­
w to-day implementation.
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• It is the clearing house of government decisions.
V) • It performs the function of institutionalized memory by keeping records of the decisions made earlier,
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• It serves as a channel of communication between different ministries, between the central and the
0 state government, between the central government and constitutional bodies like the CAG, UPSC etc.
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• The Janata Party government cha nged the n a m e of Prime Minister's Secretariat (PMS) to Prime
Minister's Office (PMO) in 1977.
• The Secreta riat is a headquarter organization, s u p posed to be i nvolved in the process of policy
making.
• J a n ata Pa rty saw that how strong a n d centra l izing the P M S beca me under the I n d i ra G a n d h i
govern ment.
• So to i m p ress u pon the people that they wou l d restore the P M S to the same status d u ri n g the
N e h ruvi a n times, they rena med the PMS as P M O.

Additional information:
• I n order to remember the items i n the u n ion, state a n d concu rrent list, fi rst go thro u g h the lists
thorough ly.
• I n stead of remem beri ng a l l s u bjects, try to remem ber a n d m a ke note of those s u bjects where confusion
may occur, h i g h l ig ht those, a n d remem ber those h i g h l i g hted ones.
• For eg. -
o M i nes a n d M i nera l s - state l ist
o I n d ustry - state list
o Trade a n d Com merce - state l ist

Union Ministries on State list subjects: 0 0 1:26:50 w

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• I n the state govern menta l set u p, m i n i stries rel ated to the s u bjects i n the state l ist a re fou n d . H owever, u
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state list can be found. For E.g.- Ministry of Agriculture, Ministry of Health, Ministry of Water
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• This does not amount to violation of the federal principle.
• As the centra l m i n i stries on state list s u bjects perform very basic functions and confine themselves 0
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to those functions only. Fol lowi ng a re those basic fu n ctions performed by the centra l m i n i stries <(
formed on state list s u bjects:
o Providing initiative and leadership on issues related to the m i n i stry.
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o Disseminating best practices with respect to i m plementation of a policy. <(
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o M a ki n g national policies with respect to a broad framework a n d g u idelines on these s u bjects. For cS
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beyond the research capacities of the states. For e.g. I n d i a n Ag ricu ltu re Research I n stitute (IARI) . >
o Conducti ng training programmes of foundational nature l i ke tra i n i n g of tra i ners, tra i ner of
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o Provi d i n g financial support fo r i m plementation of state l i st s u bjects l a rgely the Centra l ly
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 Additional information:
• Centrally Sponsored Scheme is prepared by the central government dealing largely with a state list
subject.
• It is either fully funded by the Centre or partially funded along with the state contribution.

o Evaluating the impact of programmes, policies like the Centrally Sponsored Schemes, etc.
o Providing a platform for inter-state coordination. E.g. Policing
o Maintaining relations and liaisons with international organizations on the state subjects. For e.g.
Food and Agriculture Organization (FAQ), International Rice Research Institute (IRRI). etc.

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 U N ION EXECUTIVE - CO M PTROLLER AN D
AU DITOR G E N E RAL OF I N DIA (PART- 1)
• In the Constituent Assembly, Dr. Ambedkar described the office of the CAG as 'the most important
office under the Constitution'.
• The principal responsibility of the CAG is to audit the accounts of state and central governments which
are spending the taxpayers' money.
• It is so significant in the financial accountability of the government that it must be given independence
in the same way as that of the judiciary in the country.
• Dr. Ambedkar also included the CAG among the 4 pillars of the constitution along with the Supreme
Court, the Union Public Service Commission (UPSC) and the Election Commission.
• Article 148 in the Indian Constitution provides for creation of the office of CAG.

Article 148: Comptroller and Auditor-General of India:

0 00:03:45

• ( 1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President
by warrant under his hand and seal and shall only be removed from office in like manner and on like
grounds as a Judge of the Supreme Court.
• (2) Every person appointed to be the Comptroller and Auditor-General of India shall, before he enters
� upon his office, make and subscribe before the President or some person appointed in that behalf by
� him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
• (3) The salary and other conditions of service of the Comptroller and Auditor-General shall be such as
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Second Schedule: Provided that neither the salary of a Comptroller and Auditor-General nor his rights
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Additional information:
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• The status of CAG is largely equivalent to that of a Supreme Court judge with respect to condition of
0::: service, salary, oath, etc.
� • The CAG (Duties, Powers and Conditions of Service) Act, 197 1 determines the conditions of
c::> service, tenure, age of retirement, etc. - provides 6 year term and 65 years of age for retirement. As
<( it is not mentioned in the Constitution, but under the CAG (Duties, Powers and Conditions of Service)
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z Act, 1971, any amendment would require a change in the Act and not the Constitution.
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u • However, the former CAG Vinod Rai was appointed as The Chairman of Banks Boards Bureau.
w • Many experts called this as a violation of clause (4) of Article 148.
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service of persons serving in the Indian Audit and Accounts Department and the administrative
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 • (6) The administrative expenses of the office of the Comptroller and Auditor-General including all
salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be
charged upon the Consolidated Fund of India.
Additional information:
• Clause (5) serves the purpose of securing independence of not just the CAG but all the Indian Audit
and Accounts service officers including the ground staff and junior officers as well.
• Clause (6) ensures that the salaries, allowances and pensions shall not be subject to the vote of the
Parliament as it is considered as 'charged expenditure'. This ensures independence in the working of
CAG and his entire staff.

Functions of the CAG:

0 00:24:54

• Till the time duties of the CAG are decided by Parliament by law, the CAG will perform the same duties
as performed before the commencement of the constitution.
• Article 149 : The Comptroller and Auditor-General shall perform such duties and exercise such
powers in relation to the accounts of the Union and of the States and of any other authority or body as �
may be prescribed by or under any law made by Parliament and, until provision in that behalf is so
made, shall perform such duties and exercise such powers in relation to the accounts of the Union and
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of the States as were conferred on or exercisable by the Auditor-General of India immediately before c5
the commencement of this Constitution in relation to the accounts of the Dominion of India and of the
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provinces respectively. 0
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• Following are the specific duties of the CAG as per law made by the Parliament i.e. The CAG (Duties, <(
Powers and Conditions of Service) Act, 1971: c::
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o Audit and report on all expenditure from:
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► The consolidated fund of India /states/union territories having a legislative assembly (UTs having c::
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► Public account of lndia /states/ UTs having LA c5
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► Contingency Fund of India /states/ UTs having LA <(
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• Expenditure from accounts of union territories without legislative assemblies is a part of the c::
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Additional information: 0
Consolidated Fund of India and public accounts of India and of the states - Article 266 u
• It is like the purse of the government. w
• All money that the government earns or gets as revenue or gets as loans forms the consolidated
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• Article 266:
(1) Subject to the provisions of Article 267 and to the provisions of this Chapter with respect to the z
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assignment of the whole or part of the net proceeds of certain taxes and duties to States, all z::J
 revenues received by the Government of India, all loans raised by that Government by the issue
of treasury bills, loans or ways and means advances and all moneys received by that
Government in repayment of loans shall form one consolidated fund to be entitled the
Consolidated Fund of India, a n d a l l revenues received by the G overn ment of a State, a l l loans
ra ised by that Govern ment by the issue of treasury b i l ls, loans or ways a n d means adva nces a n d
a l l moneys received b y that G overn ment i n repayment o f loans s h a l l form one consolid ated fu nd
to be entitled the Consolid ated Fund of the State.
Public Account of India - Article 266
• (2) Al l other p u b l i c moneys received by or on behalf of the Govern ment of I n d i a or the Govern ment of
a State s h a l l be entitled to the public account of India or the public acco u nt of the State, as the case
may be. (For eg.- Provident Fund, S m a l l savi ngs, Post Office Savi ngs)
• (3) N o moneys out of the Consolid ated Fund of I nd i a or the Consolid ated Fund of a State s h a l l be
a p p ropriated except i n accord a nce with law and fo r the pu rposes and i n the manner provided i n this
Constitution.

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� Contingency Fund of India - Article 267
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Conti ngency Fund of I n d i a i nto which s h a l l be paid from ti me to time such sums as may be determ i ned
LL by such law, and the said Fund s h a l l be placed at the disposal of the President to enable adva n ces to
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authorisation of such expenditure by Parliament by law under Article 1 1 5 or Article 1 1 6.
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Note: Wh atever money has been ta ken out a n d spent from the conti ngency fu nd, proper accou nts
l!) need to be p repared which have to be subm itted later to the Pa rliament and the Pa rliament has to
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fi n a l ly approve it. Hence, in case of conti ngency fu nd, expend itu re comes fi rst a n d approva l comes
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Imprest : A s u m of money g iven in adva nce fo r a pa rticu l a r pu rpose.
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z a m o u nt i n the conti ngency fu nd has been Rs. 500 crores annually since 2005. H owever, the Budget
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o Audit a n d report on a l l :
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► Profit a n d loss statements, m a i nta i ned by a ny department of centra l , state a n d u n ion territories
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j:: o Audit of the receipts of the government of India as well as the states to satisfy the ru les made i n
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w t h i s behalf a re so desig ned as t o secu re a n effective check on t h e assessment a n d col lection of
revenue.
z o Audit of stocks and stores as well as government inventory. Ensure that no pi lferages h ave ta ken
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 o Audit the receipts and expenditures of bodies substantially financed by the government.
o Audit the receipts and expenditures of bodies which may not be substantially financed by the
government but when so requested by the President or the Governor.
o Audit of Public Sector Undertakings (PSUs).
o Advice the President on prescribing the form in which the accounts of Union and of the States shall
be kept (Article 150).
o Certification and ascertaining the calculation of net proceeds to be shared by the Union with the
states-Article 279.
o CAG also assists the Finance Commission in arriving at a fair understanding of the actual financial
position of the states
o Audit of the accounts of Autonomous District Councils under Schedule V I of the Indian constitution
is also done by the CAG.
Additional information:
Public Sector Undertakings/Enterprises (PSU/PSEs):
• Presently, there are around 1500 central and state PSUs in the country.
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• They were created for the purpose when the state entered economic sector having commercial
lea nings, it would enter through such entities which are outside the reg ular routine framework of
government of India.
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owned, there is no private participation. RBI was the first corporation to be set up in India. Other z
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examples are LIC, FCI. The law that creates the corporation also mentions the auditing entity. Hence l!)

there are corporations that are fully audited, partially audited (privately audited in consultation with c::
the CAG) and those totally outside the purview of the CAG (RBI, UC, FCI). �
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have the majority stake i.e. atleast 51 percent stake in the company. They are registered under the 0
provisions of the Companies Act. They are audited by private auditors appointed in consultation z
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• Both kinds of PSUs are subject to periodic comprehensive evaluation of their performance by the 0
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• Till 1976, the CAG was involved in not only auditing the accounts of the government but also compiling �
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and preparing those accounts. u
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• In 1976, a scheme for Departmentalization of Accounts was created which gave the function of
account preparation and compilation with the particular ministries or departments and the CAG z
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should confine his role to auditing of those accounts. This resulted in separation of accounting and z::J
 auditing functions. This led to the creation of the Indian Civil Accounts Service (ICAS) and creation of
a new office of Controller General of Accounts (CGA), under the Ministry of Finance.
• However, for most of the states, the two functions are still performed by the CAG.

Issues in the working of the CAG: 0 0 1:20:36

• Mode of appointment: There is presently no role of a broad-based committee as in statutory
appointments like NHRC, CVC, Information Commissioner, etc. Appointment of CAG is entirely
dependent on the discretion of the central government.

Additional information:
• In the UK, the CAG heading the National Audit Office (NAO) is appointed by the resolution
adopted by the House of Commons following an agreement between the Prime Minister and the
Chairperson of the Public Accounts Committee (PAC), generally headed by a member of the
opposition.
• In the USA, the Comptroller General heading the Government Accountability Office (GAO) is
appointed by the President subject to the ratification of the Upper House i.e. the Senate.
� • In Australia, the appointment of the CAG is subject to ratification and confirmation by the whole
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Public Accounts Committee of the Australian Parliament.
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cz • India, being a member of Asian Organization of Supreme Audit Institutions (ASOSAI) and
International Organization of Supreme Audit Institutions (INTOSAI) should abide by mission
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statement and charter of these institutions which indicate the manner in which the apex
...I auditing institution should function, be such a way that complete independence is guaranteed .
w • In this context, it is recommended by experts that a broad-based committee involving the
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l!) be involved in appointment of positions like the CAG, UPSC, and Election Commission.
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c::> • Who should be appointed:
<( o It is recommended by the experts that people who are career auditors and accountants from the
C Indian Audit and Accounts Service (IAAS) should be appointed as the CAG. However till date,
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o This has an adverse impact on the morale and motivation of the officers of the IAAS.
0::: o Moreover it may also result in conflict of interest, where an IAS officer serving a department before
� retirement is asked to audit the same department after retirement as the CAG.
0 o An incentive to work for an IAS officer after retirement may also lead to politicization of the civil
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services.
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• Single vs. Multimember body:
o There is debate among experts to make CAG a multimember body on the lines of UPSC and Election
Commission.
o However the real problem is not with a multi-membered CAG but with the understaffed agencies
of lAAS.
o It is believed that out of the 250,000 auditable entities, the CAG is able to effectively audit only
around 60,000 entities in a given year. Hence there is a need for more IAAS officers, more ground
staff and junior officers.
o In the USA and the UK as well, the CAG is a single member body even with more caseload than
that of India. Also there is no study to point out that a multi-membered institution performs better
than a single member institution.
• Types of audit to be done by CAG:
o It is not clearly mentioned in the CAG (Duties, Powers and Conditions of Service) Act of 1971.
Sec 23 of the Act authorizes the CAG to define the scope of audit. The CAG normally performs the
following audits: ;=j'
► Compliance Audit: It is also referred to as the legality audit or the statutory audit or �
transactions audit. It checks whether the money has been spent according to the financial law of �
the country, legal availability of the money spent, and the mandated activity on which the money
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spent was authorized by the Parliament.
► Financial Audit: It is to check whether proper books of accounts
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► Performance Audit: It includes aspects of efficiency audit as well.
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For e.g. it will check the number of schools set up under a given c:::
amount. It will also check the standards and facilities provided in �
those schools. This will ensure the efficiency of the money being spent. It is to be understood that c::)
the CAG is involved in only the performance audit or performance reporting and not <(
performance evaluation. Performance evaluation entails the reasons for inefficiencies which do C
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 U N I O N EXECUTIVE - CO M PTRO LLER
AN D AU D ITO R G E N E RAL OF I N D IA (PART- 2)

• Types of audit to be done by CAG (continued): 0 00:0 1:16

o Propriety Audit:
► The word 'propriety' is taken from the word 'proper'. It basically questions the wisdom and
faithfulness of government spending. Eg. 2G spectrum allocation on first come first serve basis,
audited by the then CAG Vinod Rai, which amounted the revenue loss to the government of India
to the tune of Rs. 1.76 lakh crores.
► The need for a propriety audit emerges because the money spent is the taxpayers' money and
not the personal money of public officials. Hence public officials spending someone else's
money cannot be expected to exercise necessary caution and wisdom as they would while
spending their own money.
► Major financial frauds, scams come to light only through such proprietary audits.
o Arguments against propriety audit:
► Benefit of hindsight with auditors: In hindsight, the decision of the public official may seem
unwise without having proper context in which the decision was made.
► Auditors do not know much about administration: As they are seasoned auditors hence they
lack the experience and knowledge of decisions taken under administrative circumstances.
► Instills an element of red tapism in administration: Due to the fear of CAG, CVC, and CBI like
agencies, public officials deter from taking decisions and thus prefer to keep the files undecided.
This increases the red tapism in the government.
LL
► It also slows down the pace of development in the country.
0 o Arguments in favor of propriety audit:
...J
► However, it must be understood that the role of CAG is more than just tallying the accounts and
w expenditure, which any B.Com. graduates can do.
z
w ► Moreover, the supreme auditing institutions across the world are involved in the function of
C)
c:: propriety audit.
► The CAG should not have a nitpicking attitude to question every small aberration here and
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there. But during the course of the audit, if a prima facie case of fraud, impropriety, irregularity
<( comes to light, then it is not just his right to expose it, it is his duty.
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z ► The purpose of the audit is not fault-finding, but to improve the financial governance in the
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country.
c::
w ► Rather than questioning the propriety audit, there is a need for streamlining the internal audits
...J
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0 of the concerned departments. They must also be proactive in responding to the 'audit queries'
c:: raised by the office of the CAG.
� ► Thus, the propriety audit has the best potential to expose financial irregularities,
0
u embezzlement in the government, bribery, fraud, etc.

w Additional information:
> • Paul Appleby, an American public administration expert, was invited to India in the 1950s to do a
j::
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u study of the Indian administration and give certain recommendations for the reforms required in Indian
w civil services and government affairs.
z • In his report, citing that India cannot afford delays in decision making and role of CAG always
Q hanging as a shadow on the heads of civil servants, he gave an extreme suggestion to abolish the
z position of CAG in India.
::::)
Add itional i nformation:
The 2G spectru m case:
• Auction ca n ta ke p l a ce eithe r thro u g h open bidding (the h i g h est bidder g ets the contract )
o r th ro u g h first come fi rst serve basis.
• The a l l ocation was made thro u g h fi rst come fi rst serve basis, to which the CAG had
o bjected a n d a mou nted the reven u e loss to the tu ne of Rs. 1.76 lakh crores.
• The govern m e nt j u stified the decision by cl a i m i n g that due to fi rst come fi rst serve policy
the p rice of the n atu ra l resou rce was not j acked u p as i n case of open bidd i n g . This
u lti m ately hel ped the end users by g etti ng spectru m at lower rates, thereby loweri ng the
end consu m e rs' phone b i l ls.
• H owever, after the o bjection of the CAG , the S u preme Cou rt a lso q u a s hed the a l l ocations
made a n d asked for fresh a l l ocations thro u g h the open bidd i n g p rocess. H owever the
reve n u e ra ised th ro u g h open b i d d i n g cou ld o n ly be a m o u nted to Rs. 10,000 crores.
• Expe rts point to the fa ct that d u e to preva lence and com petition from 3 G , 4G
�
g_
tech nologies by then, the 2 G spectru m cou ld not generate the expected a m o u nt of
reve n u e .
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• O rd i n a ri ly, the a u d itors s h o u l d not q uestion the policy. H owever, if on a pri m a fade basis it 0
is d iscovered that the policy itself is wastefu l or fra u d u lent, then the CAG has the rig ht to z
q u estion it. 0
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The function of a CAG: 0 00:54:08 w

z
w
• Before the government spends money, it sends a bill to the CAG, the CAG verifies whether it has been I,!)
provided in the Budget and later approves it. This is the comptroller function where before the money is 0:::

spent, a specific consent of the CAG department is taken. �

0
• The CAG in the UK performs the Comptroller function out rightly. ::::)
• <(
However the Comptroller function of the CAG in India is not being performed. He is only involved in the
0
auditing function only once the money is spent. z
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Should the CAG audit Public-Private Partnerships (PPPs)? 0 00:54:28

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• A public private partnership is a project in collaboration with the government and the private entity to 0
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develop infrastructure projects, greenfield airports, highways, etc.
• In a PPP, the money and expertise comes from the private sector and the clearances required for the �
0
project come from the public sector entity. The private entity builds the project, operates it for a certain u
agreed period (concession period), recovers its investments by way of fees, toll, etc. and then transfers w
the project to the government. This is called the Build-Operate-Transfer Model (BOT). >
j::
• Thus, constitutionally the money that is being spent on the project is not coming out of the ::::)
u
w
Consolidated Fund of India as the whole amount is coming from the private sector. (Rarely the
government provides for Viability Gap Funding in case of a viability gap faced by shortage of funds z
with the private entity). Hence, there is no tax payers' money involved. Thus constitutionally there 0

should be no audit by the CAG. z

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 Viability Gap Funding

• A g ra nt one-time or deferred, provided to support i nfrastructu re projects that a re

economica l ly justified but fa l l short of fina ncial viabil ity.
• The Viability G a p Funding (VG F) provided for economic i nfrastructu re wil l be extended to
socia l i nfrastructu re.

• However, it must be understood that the private entity is constructing an asset ultimately to be used
by the common man. Moreover there may be frauds in determining the concession period for which
the private entity is to operate on the project. This ultimately hurts public interest.
• Hence, from this perspective the PPP projects should be brought under the purview of the CAG.

Additional information:
• Under the Revenue Sharing Agreement, the telecom companies are supposed to share a
percentage of their net revenue with the government.
• However, it was found that many of these companies would jack up the costs of the company on
paper, thereby reducing the net revenue to be shared with the government.
• Association of Unified Telecom Service Providers vs. Union of India, 2014: The CAG can perform
basic audit of the accounts of private telecom companies which deal with natural resources and
which have revenue sharing agreement with the government to ensure that they do not dupe the
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0 government in sharing of net revenue.
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w
z
w CAG audit and local bodies of the government like urban local bodies and Panchayati Raj institutions:
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c:: • In some states the CAG provides broad supervision and guidelines for the local body accounts and
audit.
• The CAG does not conduct audits as such for the local bodies.
::::)
<( • The broad overview of the CAG is taken by the state governments principally on account of getting the
C
z conditional grants as recommended by the Finance Commission.
<( "CAG is a prosecutor with a law that hobbles his functioning, a judge without the power to sentence,
c::
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...J and a litigant without the right to appeal". Explain
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0
c:: • CAG is a prosecutor with a law that hobbles his functioning:
� o The law does not indicate clearly the audits he is to perform.
0 o The law does not give the CAG adequate powers to obtain documents from the government.
u
o His audit queries are not responded to properly, yet the law does not give him powers to take action
w
> against the departmental officials who are refusing to respond to his audit queries.
j:: o Hence the law itself makes him hobble or shaky in his functioning.
::::)
u
w • CAG is a judge without the power to sentence:
o He can clearly indicate that there is a case of financial fraud, but he cannot give any punishment.
z o He can only make allegations in the report to be submitted to the parliament, taking action on it
Q
z remains at the discretion of the government.
::::)
 o The CAG cannot inflict punishment on his own; he can only establish the guilt and not pass any
punishment.
• CAG is a litigant without the right to appeal:
o Even after his report containing details allegations of a fraud go to the Parliament and then further
to the Public Accounts Committee, he has no power to question or appeal on the action taken on the
report.
o If the parliament and the government do not pay heed to his report, he has no powers to challenge it.

Effectiveness of an audit depends on: � 01:12:41

• System for evaluation of the CAG report:
o It is basically done by institutions like the Parliament and the Public Accounts Committee by giving
adequate time for discussion of the report, presence of members for discussion, etc.
o In the USA and UK, the CAG is part of the legislative branch. Whereas in India he is kept
independent of the legislature as well as the executive.
o Thus it is a reform due for a long time that he is made a member of the legislative branch. This will
increase the effectiveness of his reports as the Parliament would discuss and debate the report �
more seriously. g_
o This ultimately would hold the government accountable and improve the financial governance in <(
0
the country. z
• Quality of audit reports:
0
o As per the International Organization of Supreme Audit Institutions (INTOSAI) guidelines, senior ..I
auditors from other countries come to do a review of India's audit process and give some
w
recommendations. Similarly Indian auditors go to other countries. z
w
o This is referred to as INTOSAl's peer review mechanism. I,!)
o The first peer review of India's CAG was done in 2012. They found that around 50 percent of the 0:::
allegations of irregularity made by the CAG were not backed by concrete evidence. �
0
::::)

1
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0
Previous Year's Questions 0
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Q. Exercise of CAG's powers in relation to the accounts of the Union and the States is derived ..I
..I
+rom Article l't' o+ the Indian Constitution. Discuss whether audit of the Government's policy 0
0:::
implementation could amount to overstepping its own (CAG)jurisdiction. (20")
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Previous Year's Questions w
>
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Q. "The Comptroller and Auditor Genral (CAG) has a very vital role of play." Explain how this is
u
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re.fleeted in the method and terms of his appointment as well as the range of powers he can
exercise. (Answer in 150 words) (2018) z
0
z
::::)
 U N I O N PARLIAM ENT (PART- 1)
- I NTRO D U CTI O N
Article 79: Constitution of the Parliament: 0
00:00: 1 1
• There shall be a Parliament for the Union which shall consist of the President and two Houses to be
known respectively as the Council of States and the House of the People.

Article 80: Composition of the Council of States:

• ( 1) The Council of States shall consist of
o (a) twelve members to be nominated by the President in accordance with the provisions of clause (
3 ); and
o (b) not more than two hundred and thirty eight representatives of the States and of the Union
territories
• (2) The allocation of seats in the Council of States to be filled by representatives of the States and of the
Union territories shall be in accordance with the provisions in that behalf contained in the fourth
Schedule.
• (3) The members to be nominated by the President under sub clause (a) of clause ( 1 ) shall consist of
persons having special knowledge or practical experience in respect of such matters as the following,
namely: Literature, science, art and social service.
• (4) The representatives of each State in the council of States shall be elected by the elected members of
the Legislative Assembly of the State in accordance with the system of proportional representation by
means of the single transferable vote.
• (5) The representatives of the Union Territories in the council of States shall be chosen in such manner
as Parliament may by law prescribe.

Note: As per Section 27 A of the Representation of Peoples' Act, 1950, the representatives of UTs
shall be elected by an electoral college which would be the Legislative Assembly of the UT.

Additional information:
z • Nominated members: 12
0
• Representatives of states: 238
:> •
C Total member in council of states: 250
0 • Current strength: 245 (229 from states, 3 from Delhi, 1 from Pondicherry, 12 nominated)
c::
1- • After Jammu and Kashmir reorganization: 225 from states, 3 from Delhi, 1 from Pondicherry, 4 from
z
J a m mu a nd Kashmir, 12 nomin ated - Total rem a i n s the sa m e i.e. 245 members.

Article 81: Composition of the Council of People:

0 00:08:00

• ( 1) Subject to the provisions of Article 33 1 the House of the People shall consist of
o (a) not more than five hundred and thirty members chosen by direct election from territorial
constituencies in the States, and
o (b) not more than twenty members to represent the Union territories, chosen in such manner as
parliament may by law provide.
Additional information:
• Representatives from territorial constituencies in the States: 530
• Representatives from UTs: 20
• Maximum strength: 550
• Actual Representatives from territorial constituencies in the States: 530
• Actual Representatives from UTs: 13 (7 from Delhi, 1 each from other 6 UTs)
• Present strength: 543
• After Jammu and Kashmir reorganization: 543 (524 from states, 7 from Delhi, 5 from J&K, 2 from
Dadra & Nagar Haveli along with Daman & Diu, 1 each from rest of the UTs)

• (2) For the purposes of sub clause (a) of clause ( 1 )

o (a) there shall be allotted to each State a number of seats in the House of the People in such manner
that the ratio between that number and the population of the State is, so far as practicable, the
same for all States; and
o (b) each State shall be divided into territorial constituencies in such manner that the ratio between
the population of each constituency and the number of seats allotted to it is, so far as
practicable, the same throughout the State: Provided that the provisions of sub clause (a) of this
clause shall not be applicable for the purpose of allotment of seats in the House of the People to any
State so long as the population of that State does not exceed six millions.

Note: In case of population increase in a state, it may be a possibility that the population rise has been
uneven with respect to constituencies in that state. This requires redrawing of the constituency
boundaries so as to ensure equal proportional representation of seats in the Parliament.

Thus there must be inter-state as well as intra-state balance with respect to distribution of seats as
per the population. z
0
The exercise of restoring this inter-state and intra-state balance after every 10 years is called
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Delimitation. It is performed by a statutory body called as Delimitation Commission. 0
0
0::
1-
z
• (3) In this article, the expression population means the population as ascertained at the last preceding
census of which the relevant figures have been published: Provided that the reference in this clause to
the last preceding census of which the relevant figures have been published shall, until the relevant
figures for the first census taken after the year 2026 have been published, be construed:
• For the purposes of sub-clause (a) of clause (2) and the proviso to that clause, as a reference to the 1-
z
w
1971 census and; (Note: This is inter-state reorganization) �
• For the purposes of sub-clause (b) of clause (2) and the proviso to that clause, as a reference to the <(
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200 1 census. (Note: This is intra-state reorganization) 0::

z
0
z
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Note:
• The last delimitation commission for inter-state reallocation was set up in 1972. The numbers of
seats were frozen till 2026 so as to compensate the southern states which performed better in
family planning exercise.
• In case it was continued every 10 years since then, the northern states, due to their larger
populations would end up having excessively more seats in the Parliament than the southern
states.
• The last delimitation commission for intra-state redrawing of boundaries among constituencies
within a state was set up in 2002.
• As the exercise has been frozen till 2026, hence the next commission would be set up based on the
203 1 census.

Article 83: Duration of Houses of Parliament: 0 0 28 43 °= =

• ( 1) The council of States shall not be subject to dissolution, but as nearly as possible one third of the
members thereof shall retire as soon as may be on the expiration of every second year in accordance
with the provisions made in that behalf by Parliament by law.

Note: For the first Rajya Sabha, the members who would retire after two years were decided by a draw of
lots.

• (2) The House of the People, unless sooner dissolved, shall continue for five years from the date
appointed for its first meeting and no longer and the expiration of the said period of five years shall
operate as a dissolution of the House: Provided that the said period may, while a Proclamation of
Emergency is in operation, be extended by Parliament by law for a period not exceeding one year as a
time and not extending in any case beyond a period of six months after the Proclamation has ceased to
operate.

Note: Proclamation of Emergency refers to National Emergency under Article 352. Using this provision,
th
the tenure of the 5 Lok Sabha (1971) was extended twice.

Article 84: Qualification for membership of Parliament: 0 00:36:40

• A person shall not be qualified to be chosen to fill a seat in Parliament unless he-
o (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by
the Election Commission an oath or affirmation according to the form set out for the purpose in the
Third Schedule;
o (b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of
a seat in the House of the People, not less than twenty five years of age; and
o (c) possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament

Note: Laws made by the Parliament are Representation of Peoples' Act, 1950 (RPA, 1950) and
Representation of Peoples' Act, 1951 (RPA, 1951)
Article 85: Sessions of Parliament, prorogation and dissolution:
• ( 1) The President shall from time to time summon each House of Parliament to meet at such time and
place as he thinks fit, but six months shall not intervene between its last sitting in one session and the
date appointed for its first sitting in the next session
• (2) The President may from time to time
o (a) prorogue the Houses or either House;
o (b) dissolve the House of the People

Article 102: Disqualifications for membership:

0 00:42:3 1

• ( 1) A person shall be disqualified for being chosen as, and for being, a member of either House of
Parliament
o (a) if he holds any office of profit under the Government of India or the Government of any State,
other than an office declared by Parliament by law not to disqualify its holder;

Note: The parliament is allowed to make law on office of profit to involve MPs on advisory bodies,
advisory committees to the government in order to utilize their expertise and experience. The idea here is
not to indiscriminately exempt any office from the office of profit clause. The Joint committee on offices
of profit advises the parliament as to what offices can be exempted under the Parliament (Prevention of
Disqualification) Act, 1 9 59.

o (b) if he is of unsound mind and stands so declared by a competent court;

o (c) if he is an undischarged insolvent;

Note: An undischarged insolvent is a person who has gone bankrupt. Such a person may use his
constitutional position to improve his personal financial status.
z
o (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is 0
under any acknowledgement of allegiance or adherence to a foreign State;
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o (e) if he is so disqualified by or under any law made by Parliament 0
0
• (2) A person shall be disqualified for being a member of either House of Parliament if he is so 0::
1-
disqualified under the Tenth Schedule z

Office of Profit clause as criteria for disqualification:

• The principal function of any Member of Parliament (M P) or Member of Legislative Assembly (MLA) is
to pass bills, discuss and debate on them, while holding the government accountable by asking critical
1-
and troubling questions. z
w
• If the government starts appointing MPs on some important status bearing government positions like �
chairpersons on boards of PSUs, etc. it may hamper their working as a legislative member. <(
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• With lucrative government positions comes various powers and privileges which the appointed MP 0::
would enjoy. This would compromise with the MP's duty to fairly question the government on
important public issues and thereby hold the government accountable. z
0
• However, for the purpose of clause ( 1) of Article 1 02, a person shall not be deemed to hold an office of z
::)
 profit under the government of India or the government of any state by reason only that he is a minister
either for the Union or for such state.
• Moreover, the Parliament (Prevention of Disqualification) Act, 1959 gives the list of positions
exempted under the office of profit clause.
• 2005 controversy:
o Jaya Bachchan was disqualified on the grounds of holding the office of profit of the Chairperson of
the Uttar Pradesh Film Development Corporation (UPFDC) and the Parliament (Prevention of
Disqualification) Act, 1959 did not include this position.
o It was found that many MPs were holding such various offices of profit. Even the then speaker
Somanath Chatterjee was found to be holding an office of profit under the government.
o Thus, in 2006, an Office of Profit (Amendment) Bill was passed which was seeking to amend the
Parliament (Prevention of Disqualification) Act, 1959 and include all the positions held by MPs
under this Act with retrospective effect. This made the MPs already holding office of profit before
the enactment of this amendment immune from disqualification.

Supreme Court interpretations on Office of Profit

• Government has the power to appoint and remove from that particular office
• It involves a remuneration
• It comes with some financial and administrative powers

*Even if one norm is satisfied, it's an office of profit

o It was in this case that the then President Dr. APJ Abdul Kalam took a high moral ground and used
a suspensive veto.
Explanation of clause (1) (e) of Article 102:
The MP can be disqualified under RPA, 1951:
• Sec 8(3) of RPA, 1951: A person convicted of any offence and sentenced to imprisonment for not less
than two years shall be disqualified from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release
• Sec 8(4) of RPA, 1951: if such a person who is convicted already happens to be a sitting legislator, (MP,
MLA, MLC) then such person will not be disqualified if he files an appeal to a higher court within 3
months.
• In the Lily Thomas Case, 2013 the Supreme Court struck down section 8(4) on the basis of
discrimination.
Critical analysis of the Lily Thomas Case, 2013:
• In the Prabhakaran Case, 2005 the apex court had adjudged that treating sitting legislators differently
from ordinary citizens is based on reasonable classification.
• In the Laxmi Devi Case, 2008 the apex court said that the parliament cannot make a different set of
laws for ordinary citizens and for citizens who are members of legislatures as interpreted from clause
(1) of Article 102. In this case, the parliamentary privileges in the constitution would not hold ground.
Thus, there are multiple interpretations possible for the same clause in the same article.
• The disqualification of sitting members can also produce instability in the government, especially
when the ruling party has a slim majority and it loses the majority due to disqualification of the
members.
• No relief is possible if the member convicted by a lower court is disqualified, but later is acquitted by
the higher court.

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 U N I O N PARLIAM E NT (PART-2)
- SPEAKE R OF TH E LO K SABHA
Article 93: The Speaker and Deputy Speaker of the House of the People 0 00:00: 1 1
• The House of the People s h a l l , as soon as may be, choose two mem bers of the House to be res pectively
Speaker and Deputy Speaker thereof a n d , so often a s the office of Speaker or Deputy Speaker
becomes vacant, the House s h a l l choose a n other mem ber to be Spea ker or Deputy Speaker, as the
case may be.

Note: The position of Speaker and Deputy Speaker were created by the Government of India Act, 1919.
In those d ays the Spea ker a n d Deputy Speaker were referred to as the President and the Vice President
res pectively.

Additional Information
• As per convention, since the 11th Lok Sabha, the position of the Deputy Speaker generally goes to the
opposition party.
• The Deputy Speaker enjoys a u n i q u e p rivi lege that, whenever he becomes a member of a ny
Pa rl i a menta ry com m ittee, he automatically becomes the chairperson of that committee.
0 00:02:53
Article 94: Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker
• A mem ber holding office as Spea ker or Deputy Spea ker of the House of the People
o (a) shall vacate h i s office if he ceases to be a mem ber of the House of the People;
<( o (b) may at a ny time, by writi ng under h i s hand a d d ressed , if such mem ber is the Spea ker, to the
:I:
Deputy Speaker, and if such member is the Deputy Spea ker, to the Speaker, resign his office; a n d
� o (c) may be removed from h i s office b y a resol ution o f t h e H o u s e o f t h e People passed b y a m ajority of
a l l the then mem bers of the House: Provided that no reso l ution for the pu rpose of clause (c) s h a l l be
w
:I: moved u n less at least fou rteen days' notice has been g iven of the i ntention to m ove the resolution :
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LL o Provided fu rther that, whenever t h e H o u s e o f t h e People is d issolved , t h e Speaker shall not vacate
0
his office until immediately before the first meeting of the House of the People after the
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� dissolution.

0.
l/l Note: No g rounds h ave been mentioned i n the constitution for the remova l of the spea ker a n d the deputy
spea ker.

I n cla use (c) , the majority req u i red is ca l led as 'Effective majority'.

Article 95: Power of the Deputy Speaker or other person to perform the duties of the office of, or to act
as, Speaker 0 00:06: 1 1
• ( 1) While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy
Speaker or, if the office of Deputy Speaker is a lso vaca nt, by such member of the House of the People
a s the President may appoint for the pu rpose.
Note: The President usually nominates the senior most member of the house as the presiding officer.
Generally, after the fresh elections of the Lok Sabha, the President appoints the senior most member as
the Protem Speaker. It is a temporary position till the Speaker and Deputy Speaker are elected. Protem
Speaker's main function is to administer oaths to the members.

• (2) During the absence of the Speaker from any sitting of the House of the People the Deputy Speaker
or, if he is also absent, such person as may be determined by the rules of procedure of the House, or, if
no such person is present, such other person as may be determined by the House, shall act as Speaker

Note: Rules of procedure of the House indicate that there shall be a panel of 10 members to be
nominated by the speaker to preside in his absence
0 00:11:00
Article 100: Voting in Houses, power of Houses to act notwithstanding vacancies and quorum
• ( 1) Save as otherwise provided in this Constitution, all questions at any sitting of either House or joint
sitting of the Houses shall be determined by a majority of votes of the members present and voting,
other than the Speaker or person acting as Chairman or Speaker
The Chairman or Speaker, or person acting as such, shall not vote in the first instance, but shall have
and exercise a casting vote in the case of an equality of votes
• (2) Either House of Parliament shall have power to act notwithstanding any vacancy in the
membership thereof, and any proceedings in Parliament shall be valid notwithstanding that it is <(
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discovered subsequently that some person who was not entitled so to do sat or voted or otherwise cc
took part in the proceedings �
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Note: The Speaker or the Chairman is not allowed to vote in the first instance, he can only vote in case of w
::r:
a deadlock by casting a 'casting vote'.
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Article 96: The Speaker or the Deputy Speaker not to preside while a resolution for his removal from w
�
office is under consideration 0 00:12:46
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• ( 1) At any sitting of the House of the People, while any resolution for the removal of the Speaker from V)

his office is under consideration, the Speaker, or while any resolution for the removal of the Deputy
Speaker from his office is under consideration, the Deputy Speaker, shall not, though he is present,
preside, and the provisions of clause ( 2 ) of Article 95 shall apply in relation to every such sitting as
they apply in relation to a sitting from which the Speaker, or, as the case may be, the Deputy Speaker, is �
z
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absent
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• (2) The Speaker shall have the right to speak in, and otherwise to take part in the proceedings of, the <(
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House of the People while any resolution for his removal from office is under consideration in the c::
House and shall, notwithstanding anything in Article 100, be entitled to vote only in the first instance
on such resolution or on any other matter during such proceedings but not in the case of an equality
z
0
of votes. z
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 Functions/powers of the Speaker: 0 00:15:03
• He/she presides over the meetings of the Lok Sabha and of the Joint sittings, whenever convened in
case of a deadlock.
• He/she has the final power to maintain order in the house. He/she can call in the marshals to evict a
member from the house in case of unruly behavior. This power is not subject to jurisdiction in any court
of law. (Article 122)
• He/she has the final power to decide money bills. E.g. Aadhaar Bill, Insolvency Bill, etc.
• He/she decides all cases under the Anti- Defection Law.
• He/she decides on who should hold the floor (get the opportunity to speak).
• He/she decides on the time to be allotted to items on agenda as he/she chairs the Business Advisory
Committee.
• He/she has the power to expunge objectionable remarks or unparliamentary language from the
record of the House.
• The Speaker decides all points of order. (While general business is conducted in the house certain
rules should be adhered to. If a member feels that certain rules of the House are not being followed
during the conduct of business, he/she can raise a complaint which is called a point of order.)
• The Speaker is the custodian of the rights and privileges of the House.
• The speaker decides on which motions, resolutions, questions have to be admitted.
• The speaker is also the chairperson of the Conference of Presiding Officers of legislative assemblies
<( in the country.
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<( Additional information:
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� Why the Speaker is called as the Speaker?
• He hardly ever speaks during the session, neither does he actively participate in debates or give his
w
:I: views on a bill or a motion.
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LL • The only time he speaks is to tell the MP to sit down, to be disciplined.
0 • This convention of calling him a speaker comes from Britain. In earlier periods, the Speaker's
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w responsibility was to sum up the viewpoints of different sections of MPs in the House and
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communicate it to the King.
a. • He would sum up and integrate viewpoints on an issue and then speak to the King on behalf of the
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members.
• In present times, even though this function is not performed, the term 'Speaker' is still used.
�
[ Securing the independence of the Speaker: 0 00:28:10
1-
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w • Can only cast a casting vote: In order to secure his independence, he is not only disallowed to speak
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<( or give his opinion on the bill, but also cannot vote in the first instance. He can only cast a casting
:::i
0::: vote in case of a deadlock.
• Exemption under Anti-defection law: If the speaker chooses to resign from the political party after
z getting elected as the speaker, in order to show impartiality, he/she is exempt from disqualification
0
under the Anti-defection law to secure their independence.
• Whatever action he/she may take to maintain order in the house cannot be questioned in any court of
law as per Article 122 (2)
• Salaries/allowances as charged expenditure: They are not subject to vote of the Parliament, hence
ensuring the independence of the position.
th
• The Speaker is given the 7 rank in the Table of precedence to impress upon him/her the importance
of the position and that the expectations that are attached to this position cannot be taken casually.
• The speaker is expected to dissociate from the day to day party politics.
• The conduct of the speaker cannot be discussed in the House, except on a motion for his removal.

In spite of all these provisions, complete independence, absence of bias, dispassionate and objective
attitude of the speaker has still not been realized to the fullest. In order to strengthen the independence
further, following things can be done: (!) 00:38: 13

• Withdraw powers under Anti-defection Law: Speaker's powers under the Anti-defection law should
be taken away, in order to ensure more bipartisanship. These powers should be given to the Election
Commission.
• Establish the convention of 'once a speaker always a speaker, then nothing else':
o A convention in the UK allows the speaker a second term in the office as a member of the house.
o After his first term as the speaker is over, no candidate is fielded against him in the elections to the
next term of the House of Commons. This ensures that the speaker automatically gets elected to <(
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nd
the House in the 2 term. Hence, once a speaker, always a speaker. cc

o Vithalbhai Patel in 1925 became the first Indian speaker in the Central Legislative Assembly. The �
moment he became speaker, he resigned from his party (Swaraj Party). In the next elections he 0
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contested as an independent candidate and he was elected unopposed. w

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o The V.S Page committee in 1967 recommended that the same convention should be followed in LL

India as well. 0
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o However, even after the 2
nd
term, the Speaker may be offered lucrative positions like the w
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Ministerial offices, governor offices, etc. Hence the convention should be 'once a speaker, always a
nd a..
speaker, and then nothing else'. The speaker should resign from active politics after his 2 term and V)

there shall be no appointment of former speakers to any political positions. This would ensure an
unbiased attitude of the speaker towards the ruling party.
• Appointment of the Speaker: Before the speaker is appointed by the Prime Minister or the Chief
Minister, there should be some consultation with the Leader of Opposition, in order to gain the �
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opposition party's confidence as well. This may also create moral pressure on the speaker to preside in
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an unbiased manner. <(
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 U N ION PARLIAM ENT (PART-3)
- CON DUCT OF LEG ISLATIVE BUSI N ESS
Voting in Houses, power of Houses to act not withstanding vacancies and quorum.
Article 100:
• ( 1) Save as otherwise provided in this Constitution, all questions at any sitting of either House or joint
sitting of the Houses shall be determined by a majority of votes of the members present and voting,
other than the Speaker or person acting as Chairman or Speaker. The Chairman or Speaker, or person
acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the
case of an equality of votes.
• (2) Either House of Parliament shall have power to act notwithstanding any vacancy in the
membership thereof, and any proceedings in Parliament shall be valid notwithstanding that it is
discovered subsequently that some person who was not entitled so to do so or voted or otherwise took
part in the proceedings.
• (3) Until Parliament by law otherwise provides, the quorum to constitute a meeting of either House of
Parliament shall be one tenth of the total number of members of the House.
• (4) If at any time during a meeting of a House there is no quorum, it shall be the duty of the chairman or
Speaker, or person acting as such, either to adjourn the House or to suspend the meeting until there
is a quorum.

(/)
(/)
w Note: At the state level as well, there is a quorum as per Article 189. However, the quorum shall be at
z
vi least 10 members or one tenth of the total number of members of the House whichever is greater. This
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CD is provided so as to consider the legislative assemblies which already have less number of total members'
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> strength varying around 30-40 members.

(/) Actual voting procedure in the Parliament: 0 00:09:48

w • Voice note: When the debate has been done, the speaker simply asks the members in favour of the bill
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LL to say 'Aye' and those not in favour to say 'Nay'. The speaker would decide the matter based on the
0
voices of Ayes and Noes. Hence voice note is a form of informal voting.
::::) • Division: If the speaker feels that the ayes and noes were very close, then he may go for division of
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z votes. It is a formal voting exercise.
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u o Voting here can be done through Automated Vote Recording Equipment (AVRE) . It is in the form
of a panel beside every MP's seat and the MP can operate it by pressing the dedicated buttons

� placed on it.
o Another method of division is that of distribution of slips or ballot papers.
�
1- o Another method deployed is that of a head count wherein members are asked to stand in their seat
z
w in groups of 'Ayes' and ' Noes'.
�
<:J o Another method is that of asking the members to go to the lobbies. E.g., Those who said 'Aye' can
a:: go to the right-side lobby and ' Noes' to go to the left-side lobby, and then a headcount is done. This
method is rarely used.
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Note: Recently with respect to the farm bills, the Rajya Sabha asked for division of votes. But the
Chairman of Rajya Sabha refused to allow it and the bill was passed by voice vote.

Many experts have suggested a reform that all bills should be subject to division. This is more democratic
in nature as it would give the citizens a right to know in which direction his MP voted and hold him/her
accountable.

Circumstances under which the seat of a MP can fall vacant:

0 00: 18:00

• Death of the MP
• Resignation of the MP Death of the M P
• Disqualification of the MP under Article 102 or Anti-defection
law.
• If the MP is absent from the sitting of the House for 60 or more Disqualification o f the MP under
Article 102
days without the leave of the House i.e. without taking
Absent from the sitting of the
permission of the House. (The 60 day period would not include House
the days when the house is prorogued or adjourned for a period
Dual membership
of more than four consecutive days). (/)
(/)
• Dual membership: w
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o If a person, who is a member of one house, seeks election to be a member of the other house and u;
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gets elected, then his seat in the first house gets vacant. ca
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o When a person who is not a member of either of the Houses, gets elected to both the houses >
simultaneously, and within a specified time period fails to indicate his choice of seat, then his seat
in the Rajya Sabha falls vacant. (/)
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o If a person contests two seats in the same house, gets elected to both the seats, within a specified w
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time period fails to indicate his choice of seats, then both his seats will be declared to be vacant. LL
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o If a person gets elected to the Parliament as well as a state assembly, and within a specified time
period fails to indicate his choice of seat, then his seat in the Parliament is declared vacant. ::,
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Types of Bills:
0 00:25: 1 5 0
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• Original Bills: They contain fresh proposals, not seeking to amend an already existing bill.
• Amendment Bills: They seek to amend an already existing legislation Eg. Citizenship Amendment Bill
• Consolidating Bills: It consolidates the provisions under scattered laws relating an integral matter. E.g.
GST Bill, demand for a Direct tax code. 1-
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• Expiring laws continuance bills: It extends the time period of the legislations that originally come with
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a sunset clause (its date of expiry).== <:J
• Bill to replace ordinances: In order to regularize ordinances and make them into a permanent law, they 0::
have to be passed by both the houses of Parliament.
• Money bills, financial bills, ordinary bills
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• Constitution Amendment Bills: They are under article 368
 • Repealing bills: They are used to repeal an existing law.
• Private Member Bills: They are introduced by members of Parliament other than the ministers in the
government. One month's notice must be given by the MP before introducing the private member bill.
The last private member bill was passed in the 1970s.
• Government Bills: They are introduced by the government ministries represented by the concerned
minister. A notice period of seven days must be given by the minister before introducing the bill.

Legislative Procedure: 0 00:34:18

The legislative procedure consists of three readings (stages):
• 1st reading/stage : Introduction
o It is an exercise in which the member/minister in order to introduce the bill seeks the leave of the
house. If the leave is granted, the bill is introduced
o After the bill is introduced, it is also published by the government in the official gazette.

Note: Gazette is the legally authorized document of the government of India. It is generally a weekly
bulletin. In some cases, more than one gazette is released within a week, in case some information has to
(/) be put out immediately, this is known as 'gazette-extraordinary'.
(/)
w
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vi A gazetted officer is usually a Group A or Group B (in some cases Group C) officer, whose appointment,
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CD transfer, removal, dismissal, etc. with respect to a gazette post are all recorded and published in the
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> official gazette of the government.

(/) • 2 nd Reading/stage : Discussion

w o In this stage, a general discussion of the Bill takes place.
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detailed consideration, which are as follows:
::::) ► Send the bill to a select committee of that house, in order to investigate the bill in a detailed
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u ► Send the bill to a joint committee of the two houses
► Circulate the bill for eliciting public opinion
� o However, all these options are optional and not mandatory. The house can directly send the bill for
detailed consideration.
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1- • 3 reading/stage: Voting on the Bill:
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w o If the bill is passed, it goes to the second house. If it is not passed, then the bill dies.
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a:: • When the bill goes to the other house:
o In case of a Money Bill, the Rajya Sabha has 14 days to propose some amendments to the money
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0 bill or pass it as it is. It is up to the Lok Sabha to accept or reject the proposed amendments by the
z Rajya Sabha. After 14 days, the bill is deemed to be passed.
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 o But in case of a Constitutional Amendment Bill, it should be passed by both the houses separately.
There is no scope for any joint sitting of the two houses in case of a Constitutional Amendment
Bill.
o In case of other bills than the Money bill and the Constitutional Amendment Bill, when the bill
passed by the first house goes to the second house, the second house can:
► Pass it, and then it goes to the President for his assent.
► Reject it.
► Pass with amendments not acceptable to the first house.
► Do nothing for a period of 6 months. (not counting the period for which the house was prorogued
or adjourned for more than four days consecutively)
► In cases of rejecting the bill, passing with amendments not acceptable to the first house or doing
nothing for a period of 6 months, it results in a deadlock. In this case, the President can call for a
joint sitting of both the houses.

Note: If there is a deadlock with respect to the Bill and no joint sitting has been called yet, in the meanwhile
the Lok Sabha gets dissolved, then the bill lapses.
(/)
(/)
In another case of deadlock, where the joint sitting has been called by the president and then the Lok w
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Sabha gets dissolved after the joint sitting has been called, then the dissolved Lok Sabha will participate u;
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in the joint sitting and then decide on the Bill in the joint sitting. CD

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The joint sitting is presided over by the Speaker of the Lok Sabha, in his absence by the Deputy Speaker, in
his absence by the Deputy Chairman of the Rajya Sabha. In his absence as well, any member to be (/)
(!)
collectively decided by the houses presides over the joint sitting. In no case, the Chairman of the Rajya w
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Sabha can preside over a joint sitting.
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0 00: 5 1 :48
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Can the bill be amended in a joint sitting? ::::)
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• If the bill has been rejected by the second house or it has done nothing with the bill for a period of 6 z
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months, then only those amendments are allowed to be proposed in the joint sitting which is u
necessarily causing delay in the passage of the Bill.
• If the bill is passed by the second house with amendments not acceptable to the first house, then along
with amendments necessarily causing delay, those provisions on which the disagreement exists
with the first house can be amended again in the joint sitting.

Note: There have been three instances of convening a joint sitting to resolve the deadlock:

• Dowry Prohibition Bill, 1961: Lok sabha did not agree with some amendments made by the Rajya
Sabha
• Banking Services Commission Bill, 1978: Rajya Sabha rejected the bill
 • Prevention of Terrorism Bill, 2002: Rajya Sabha rejected the bill

Timing of India's financial year: 0 01:00:48

• The financial year commences from 1 st April to 31 st March. (UK, Japan, Canada also have the same
financial year)
• For the period 1860 - 1866, with the introduction of annual budgeting, the financial year of India was
from 1st May to 30th April.
• 1867 onwards the financial year commenced from 1st April to 3 1st March.
• More than 150 countries have their financial year aligned with the calendar year i.e. 1 st January to 31st
December.
• There has been debate on the changing of the timing of India's financial year:
o 1 st Administrative Reforms Commission (A RC) in 1966, recommended to push the
commencement of the financial year month to November. The reason for it being that by
November the Kharif season is over and the status of monsoon is known. If the financial year
would start from April, the government would have no idea about the monsoon season, which is an
important factor for agriculture in the country. A bad monsoon season would leave little finances
(/) with the population to spend and hence reduce their purchasing power. This will ultimately
(/)
w impact the government revenue and the government projections in the budget would not be met.
z
vi o Secondly, after the budget presentation in the month of February, it would take around May for the
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CD actual finances to reach on ground for capital infrastructure works like construction of buildings,
w
> roads, bridges, etc. But with monsoon just around a month away, this would again hamper the
developmental activities in the country.
(/) o Thirdly, the ARC said that people in India get a sense of completion and think of their finances in
w terms of from one Diwali to the next Diwali. Hence a financial year starting from November would
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LL make it more culturally aligned.
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o L.K Jha committee in 1984 also recommended a change in the timing of the financial year.
::::) o Shankaracharya Committee in 2016 recommended that our financial year should be changed to
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z calendar year i.e. January to December. This would be of help to the MNCs which have to align
0
u with different financial years in different countries, where the majority of the world's countries
have aligned their financial year to the calendar year.
�
• However, since the economy has been suffering, COV ID pandemic causing havoc, at this juncture it
would not be advisable to make changes in the financial year. But in the long term, this change must be
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1- thoroughly contemplated and looked forward to.
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w
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<:J The Dual Budget issue: 0 01:14:00
a:: • From 1924 to 2017, there was a system of dual budgets consisting of a separate general budget and a
separate budget for the Railways. The railway Budget used to be presented 3-4 days before the
z
0 general budget.
z • Until 1924 there was a combined budget, but it was changed to a dual budget on the
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 recommendations of the Acworth Committee.
• The Bibek Debroy committee in 2016 recommended a merger of the two budgets.

Why separate the budget for the railways? 0 0 1 : 1 5:30

• The nature of the Railway ministry is that of a commercial entity. It is not only a 'spending' ministry
but a 'revenue earning' ministry as well. In a sense it is a business enterprise with a social purpose.
The financial management of such an enterprise is different from a 'spending' department or ministry.
This was one of the main reasons why a separate budget was envisaged for the railways in 1 924.
• During British times, the Railway ministry accounted for 85 percent of the annual budget of the
British government. Hence, it required a special and dedicated focused treatment.
• It also imparts a greater visibility to the Railways which was the usual mode of transport for the
common man.
• The railway ministry also enjoyed certain financial autonomy due to a separate budget.

Arguments of Bibek Debroy Committee: 0 0 1:20:38

• In present times, the railway budget accounts to not more than 4 percent of the total annual budget
• It also said that over time, the railway budget has become a political exercise. Every year people (/)
(/)
started to expect some sops/freebies from the railway budget in terms of subsidies, reduction of fares. w
z
Hence it affected the rationalization of finances and reforms for the railway department. u;
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• The railway budget had also become an exercise for pleasing and placating coalition partners. CD

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Even after merger with general budget, various issues persist:

• Still rationalization of fares has not taken place to that extent. (/)
(!)
• Reforms in the railways are still pending w
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• The staff costs are still high at 53 percent which ideally should be around 1 0-20 percent.
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• It also does not guarantee better efficiency or more technocrats getting appointed to the railway board. �
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• It also does not guarantee an improvement in the customer services ::::)
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• Various experts have recommended reducing the railway zones from 18 to 5 (north, south, east, z
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west and central) and converting these 5 zones into self-financing public sector corporations fully u
owned by the government instead of keeping the railways in a ministerial form.
• This will make the issue of a merged or a de-merged budget hardly a matter of debate as corporations
prepare their own budgets and use the money without being subject to the approval of the
parliament. This can further help in financial autonomy as well as improving efficiency of the railways.
 UNION PARLIAMENT (PART-4)
- BUDGET ENACTMENT
Stages of Budget enactment: 0 00:01:05

The powers of the Parliament with respect to the Budget are mentioned in Articles 112 - 117. Budget, being
the financial law of the country, goes through no less than six stages, which are as follows:
• Introduction:
o For a long time, convention was to present the budget on the last working day of February.
o However, since 2017 an effort has been made to present the Budget on the 1 st of February. This
ensures that the Parliament gets much more time to discuss and debate on the budget.
o During the years of the Vajpayee government, it was a convention to present the budget in the
evening, so as to ensure that people after coming home from work are able to listen to the Budget
speech live. But this convention has been changed now and the budget is being presented in the
morning.
o At the end of the Budget speech of the finance minister in the Lok Sabha, the Budget is tabled in the
Rajya Sabha. It has the right to discuss but not vote on the budget.
• General discussion:
o It can be called as the hangover of the past. The principal central legislative chambers during the
British times had only the right to discuss the budget as very few items were subject to the vote of
the legislature.
o In contrast to this, almost the entire budget is subject to the vote of the Lok Sabha, barring the
charge expenditure. The general discussion stage still serves the following purpose:
► The Parliament can discuss the overall policy underlying the budget.
► They can also discuss the charged expenditure, although it cannot be voted upon.
f­ ► It gives the government a foretaste of the sentiments of the House and thus be prepared to
z
w answer difficult questions during the voting on demand stage.
� • Committee stage:
f-
o The Budgets prepared by different ministries are submitted to the departmental committees of the
z
w particular ministries.
f­
w
<., o These committees are given a period of roughly one month to investigate the proposals of the
Cl ministries, prepare reports on them, simplify the reports and submit them back to the Parliament.
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CD o Due to simplification of reports, it makes it easy for the MPs to understand the budget better and
prepare for a more informed debate and constructive criticism of the budget.
o For this one month period, there is a recess of the budget session. In this period the Parliament does
not meet, but committees meet on a regular basis.

Note: There are 24 Departmental Standing Committees each consisting of 31 members (2 1 from the Lok
Sabha and 10 from the Rajya Sabha)

• Voting on demands:
o Every ministry prepares its own budget. In the budget, each ministry demands a certain amount of
 money to be spent in a particular year from the Parliament.
o The Parliament votes upon these demands and then the demand is granted.
o Once the demand is passed by the Parliament, it becomes a 'grant'.
o It takes place only in the Lok Sabha as Rajya Sabha cannot vote on demands.
o Usually, 26 days are given for the Lok Sabha to discuss the demand for grants.
o During the voting on demands, parliamentarians are given some devices through the use of which
they can at least try to influence the budget of different ministries. These devices are called 'cut
motions'. They are of three types:
► Economy Cut Motion: Situation where an MP feels that the money the ministry is demanding far
in excess of the actual requirement. So he can move an economy cut motion proposing the
reduction of the demanded amount. This keeps a check on the inflated demands of the ministries
and rationalizes public expenditure.
► Token Cut Motion: When an MP wants to register his grievance with respect to a particular
policy or allocation of a ministry, he proposes a token cut motion of Rs.100. If this token cut
motion is passed, Rs.100 is reduced from the total demand of that particular ministry. The idea
behind this is to highlight the grievance of the MP on the floor of the House. For e.g. A Member
not satisfied with the allocation of the Health Ministry as no allocation has been made for a
disease like Leprosy, can propose a token cut motion to register his grievance.
► Policy (Disapproval) Cut Motion: If a policy cut motion is passed, it amounts to a vote of no
confidence. It means that the Lok Sabha has disapproved all the policies underlying the budget.
If it is passed, the total outlay demanded by the government is reduced to Re.1.
o In the 26 days allotted time, it is difficult to effectively debate 1-
and discuss on the demand of grants of all the ministries. Guil lotine z
w
Hence after a stipulated amount of time, the discussion is cut
• A s u s p e n d ed device used
short and the procedure of 'guillotine' is adopted i.e. the
discussion is cut short.
to cut the head of a z
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person d u ri n g the French 1-
o It affects the budgetary accountability of the government to Revo l uti o n w
(!)
the Lok Sabha as a large part of the budget is voted upon, C
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without being subject to discussion. Hence, experts suggest CD

increasing the 26 day period for voting on demands.

• Appropriation Bill:
o All those demands which have become 'grants' are listed o n a piece of paper, indicating the money
given to various ministries, the charged expenditure and the total outlay.
o This document is re-introduced in the parliament in the form of an Appropriation Bill.
o It can either be accepted or rejected by the Lok Sabha, it cannot be amended. Its rejection amounts
to a vote of no-confidence.
o The appropriation bill is the legal authorization for the government to withdraw money from the
consolidated fund of India.
o Once the Appropriation Bill is passed, it becomes the Appropriation Act.
 • Finance Bill:
o It contains the revenue or taxation proposals of the government.
o Once passed, it becomes the Finance Act.
o The Appropriation Act and the Finance Act together form the financial law of the country for one
year.

Parliament cannot raise a tax on its own: 0 00:36:36

• This statement must be understood in the context that if a tax rate is increased or proposed by the
executive, the Parliament has the power to approve it or reject it.
• The power to raise a tax rests with the executive. Hence, there is no practicality in the Parliament
demanding a further raise in the tax already raised by the executive as a lower tax would entail less
burden on the taxpayer.
• Ultimately, it is on the executive's prerogative to manage the expenses within the amount of the raised
tax.
• However, any tax proposed to be raised by the executive is subject to the approval of the Parliament.
• For an indirect tax rate which has been raised as announced in the Budget speech of the finance
minister on the 1st of February, the new rate will become applicable from the midnight on the day on
which they are announced.
• This is done in case of indirect taxes like GST because if it would have been applicable since the start of
the next financial year i.e., 1st of April, it would result in a rush to purchase the commodity at lower tax
rates. On the other hand, the seller/dealer would try to hold back his inventory and sell at a higher rate
f­
after the commencement of the new financial year i.e. from the 1st of April, when the new tax rate would
z
w be applicable. As the seller/dealer has paid duty according to the previous tax rate and would sell the
� commodity according to the raised tax rates, he would automatically pocket the profit.
f-
• Hence to avoid such financial irregularities, the raised indirect tax rate is made applicable from the
z
w midnight of its announcement.
f­
w • The Provisional Collection of Taxes Act, 1931 authorizes the government to collect taxes at a new
<.,
Cl proposed rate for a period of 75 days pending the approval of the Parliament. Ultimately, the raised
:::::,
CD indirect tax rates must be approved by the Parliament later. If the Parliament does not approve it after
the completion of 75 days, then tax refunds are to be given by the government.

Budgetary terms: 0 00:47:3 1

• Vote on account:
o As there is lack of sufficient time to discuss or debate on the budget and then pass it before the
commencement of the next financial year, a vote of account is proposed by the government.
o It is usually 1/Gtt, of the total budgetary outlay and given for a period of 2 months. It is given as a
lump sum grant to the government to finance the expenditure for the first two months of the new
financial year.
o In those two months the budget discussion would be complete, and the budget would be passed.
 This ensures that the government is not penniless at the start of the financial year as well as the
Parliament gets sufficient time to discuss the budget. (The finance bill gets passed usually in the
month of May after elaborate budget procedure and discussion.)
• Vote of credit:
o It is awarded to satisfy an unanticipated demand on India's resources, when the demand cannot be
specified with the details normally provided in a budget because of the enormity or indefinite nature
of the service. For e.g. in case of a war.
o It is like a blank cheque given by the Lok Sabha to the government.
o In this case the approval of the Parliament will be made after the money has been spent.
• Supplementary demand/grant:
o When the amount authorized by Parliament through the appropriation act for a certain service for
the current fiscal year is discovered to be insufficient for that year, then a supplementary demand
is made to the Parliament.
o The government makes the proposal for more money in advance.
o Once it is passed by the Parliament, it becomes a 'grant'.
• Excess demand/grant:
o It is approved when money is spent on a service during a fiscal year in excess of the amount
allocated for that service in the fiscal year's budget.
o It is done towards the end of the financial year.
o Too many excess demands tend to diminish the financial control of the Parliament over the
executive.
• Exceptional demand/grant:
1-
o It is provided for a specific purpose and is not included in any financial year's current service. z
w
o It is a one-time expenditure.
o For e.g. An important Indian leader dies, and several foreign dignitaries visit India to pay homage to
the deceased leader. The money needed to be spent on their hospitality and management forms a
z
w
part of exceptional demand.
• Additional demand/grant: Cl
::::)
o It is the expenditure for a new service which is not a part of the budget and eventually that service [D

will continue from year to year.

• Token demand:
o It authorizes re-appropriation beyond the competence of the executive.
• Re-appropriation:
o It is the activity of transferring money from one head of expenditure (where there is surplus) to
another head of expenditure (where there is deficit).
o It does not seek more money from the Parliament.
o It is sanctioned by a passing of a Token demand of Re.1 by the Parliament. Token demand
authorizes re-appropriation which is beyond the competence of the executive.
o However if the re-appropriation is of a minor nature and takes place at the lower levels, then the
 executive can sanction it through the Finance Ministry and no Parliamentary approval is required
for such minor re-appropriation.

Budget is divided into three sectors: 0 0 1:06:22

• General services-defense, fiscal services

• Social/community services-health, education
• Economic services-industry, transportation

--i:::
Six tier system of classification of accounts: 0 0 1:07:00

• M aj o r he a d - F u n ct io n )

■I •
===============================
• Sub major head - Sub fu nction )

■I:::::::=• =================
M i nor head - Prog ra m )
• Sub head - Scheme )
Detai led su bhead - Sub scheme )

';=================,
• O bject head - Object of expenditu re
1

• If a Ministry has Rs. 100 crores sanctioned, then it has to show how it is going to spend these Rs. 100
f­
z
w crores. It may say that it will spend Rs.GO crores on one activity and Rs.4O crores on another activity.
� Then it also has to further indicate how and on which activities it will spend those Rs.60 crores and
f-
Rs.40 crores and so on.
z
w • In this activity Rs.1OO crores becomes the major head, Rs.GO crores and Rs.4O crores become the
f­
w sub major heads and so on till the object head.
l!)
Q • This is the way the budget is presented, passed and this is the way it has to be executed.
::,
lD • If a situation arises where under a sub major head the money required is more than the estimated and
under another head the money required is less than the estimated, then the procedure of re­
appropriation is required.
 P.ffl UNION PARLIAMENT (PART-5)
� - PARLIAMENTARY COMM ITTEES PROCEEDI NGS
The system of parliamentary committees can be traced back to the Montford Reforms which led to the
Government of India Act, 1919. Since then we have had Parliamentary Committees.

Advantages of having Pa rliamenta ry Committees: 0 00:00:28

• More effective deliberations:
o Parliament with 245 members in one house and 543 members in the other makes it for elaborate
discussions on an issue.
o As committees are smaller bodies, they can deliberate better. Eg. Public Accounts Committee has
22 members; some other committees have as less as 15 members.
• Provide for technical considerations and domain expertise:
o It can invite domain experts from outside while preparing reports.
• Allows for stakeholder participation:
o They can provide a platform for people's participation.
(/)
o It can involve the people and stakeholders who will be directly impacted by the policy.
l!)
z o It can include the leaders of interest groups, pressure groups, industrial lobbies, civil society, etc.
0
w
• Inadequate Parliamentary sittings:
w o In the last 10 years on an average, effective sittings in a year have drastically come down to just 67
u
0 days.
a::
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(/)
o Whereas Parliamentary committees function throughout the year and are not subjected to
w
w Parliamentary sittings.
• Forge inter-party consensus:
�
� o Parliamentary committees have proportional representation from almost all political parties.
0
u o It provides a better forum to build consensus.
� o Parliamentary committee meetings are not telecast live hence there is less chance of debate on
� political lines.
z
w
�
<t: Origin of Committees: 0 00:07:35
:J
a:: • Rules of the House:
f o They make provisions for certain types of committees like Departmentally Related Standing
Committees, Public Accounts Committee, Estimates Committee, etc.
• Constitution:
�
[ o Article 344 - It provides for setting up from time to time an Official Language Commission.
Whenever the report of this commission is submitted, a joint committee is constituted to examine
f­
z
w the report of the Official Language Commission and further to report their opinion to the President.
�
<t: o This committee shall have 30 members, of whom 20 would be from Lok Sabha and 10 members
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a:: from Rajya Sabha. They would be elected by their respective houses, based on proportional
f representation by means of a single transferable vote.
z • Laws:
z::>
0
o The Salary & Allowances of Parliament Act, 1954 itself creates a Joint committee on salary and
 allowances ofMPs (having 1 0 members from Lok Sabha and 5 from Rajya Sabha).
• Adoption of motion or resolution:
o Usually Ad-hoc committees are set up through motions or resolutions.
• Inherent powers of the presiding officer:
o The presiding officer can set up a temporary committee to deal with a specific issue.
• Communication between presiding officers of the two houses:
o A joint committee can be set up through this mechanism.

Standing Com mittee: 0 00: 1 5:56

These are the committees which are permanent in nature. They are further categorized under different
headings as follows:
• Committees to inquire:
o Ethics committee (both houses have it separately)
o Committee on Petitions (both houses have it separately)
(/)
o Committee on Privileges (both houses have it separately) (!1
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• Committees to scrutinize: cw
o Committee on Government Assurances w
u
o Committee on Subordinate Legislations 0
c::
• Committees with respect to organizing day to day business: 0..
(/)
w
o Rules Committee (both houses have it separately) w
o Business Advisory Committee (both houses have it separately)
• Housekeeping Committees:
�
�
o House Committee 0
u
o Library Committee �
• Financial Committees: �
z
w
o Public Accounts Committee
�
o Estimates Committee <(
:::::i
o Committee on Public Undertakings c::
• Departmentally Related Standing Committees (DPSC) : �
o There are 24 D PSCs in total.

�
Appointment of Members to Com mittees: 0
• Nomination: In the majority of the committees, members are appointed through nomination by the
00: 18:02
i�
z
w
Presiding officer, after consultation with the Leader of the House and the Leader of Opposition. They
�
are appointed on the basis of proportional representation. <(
:::::i
• Election: There are few committees which are subject to annual elections like the Estimates c::
Committee, Public Accounts Committee, Committee on Public Undertakings, committee to examine �
z
reports of Official Language Commission, Committee on Welfare of SC/STs. 0
z
::)
 Note: Ministers generally are not allowed to be members of committees as it would give rise to conflict of
interest because the committees are responsible for scrutinizing the conduct of the government.

Ministers cannot be members of financial committees, department related standing committees, Committee
on Petitions, Committee on Subordinate Legislations, Committee on welfare of SC/STs, Committee on
Empowerment of Women, Committee on Government Assurances, etc.

Financial Committees: 0 00:23:24

Public Accounts Committee (PAC) :
• It was created for the first time in 1921. In the earlier times, it was headed by the Finance Minister.
• Since its reconstitution after the Constitution of India came into force, a minister cannot be its member
or a chairperson.
• Since 1967, following the British convention, a member of the Opposition has been the chairperson
of the PAC.
(/)
l!) • It is subject to annual election based on proportional representation by means of single transferable
z
0
w
vote.
w • It has 22 members - 15 from Lok Sabha and 7 from Rajya Sabha. PAC would still function if the Rajya
u
0 Sabha fails to send 7 members. Hence, it can be said that PAC is a committee of the Lok Sabha.
a::
ll..
• Functions of the PAC:
(/)
w o To scrutinize the report of the CAG, to ensure that the money spent was available and applied to
w
the purpose for which it was intended.
�
� o To ensure that the re-appropriation has been done in accordance with the rules.
0 o It also scrutinizes the excess demands.
u
� o It also establishes whether the expenditure conforms to the authority that governs it. It checks
� whether the sanction given to spend the money was given by the authority which has the power to
z
w do so.
�
<t: o It has the power to enforce the production of documents, records, reports from the concerned
:J
a:: Ministry.
f o It can also call for interrogation of the civil servants in the government.

� Note: As the CAG assists the PAC, he is often called the 'friend, philosopher and guide' of the PAC

[ • Advantages of having a PAC:

f­
z
w o It has a deterrent effect on financial misconduct.
�
<t: o Reports of the PAC help in shaping public opinion.
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a:: o It helps in ascertaining the government's point of view from the Action Taken Report on the
f recommendations of the PAC.
z • Weaknesses of present form of PAC:
z::>
0
o The deterrent effect is weak as seen from the number of scams, scandals, financial frauds, the
 amount of money involved in them, increasing every year. Hence the deterrent effect is very feeble.
o Whenever the PAC is looking at the money spent where there is an irregularity, the damage has
already been done. At best the PAC scrutiny is nothing more than a post-mortem examination.
There is also a very big gap between the occurrence of a scam and its scrutiny by the PAC.
o CAG's report is a voluminous document. Areas highlighted by the CAG in his report where the CAG
wants to draw the attention of the PAC are known as 'Audit Paras'. A body consisting of 22
members gets overburdened by not less than thousands of these audit paras. (It has thus been
recommended by experts that a part of audit paras should be shared with the corresponding
departmentally related standing committees, so as to scrutinize them more efficiently).
o Recommendations of the PAC are not binding on the government.

Note: In the history of PAC reports since independence, almost three-fourths of its recommendations have
been accepted. Whenever the government deviates from PAC's recommendations, it gives adequate
reasons for doing so.
(/)
(!1
z
Estimates Committee: 0 00:41:14 cw
• It is entirely the committee of the Lok Sabha. w
u
• It has 30 members and all of them are drawn from the Lok Sabha. 0
c::
• They are subject to election every year. Election is based on the principle of proportional
0..
(/)
w
representation by means of a single transferable vote. w
• Estimates Committee is also referred to as "The twin sister of Public Accounts Committee"
�
• Functions of Estimates Committee: �
0
o It picks out 5-6 ministries or even lesser in any given year, looks at their estimates of the current and u
previous years as well, looks at the trends of growth of expenditure. On the basis of this, it tries to �
locate those areas where the expenditure can be minimized by introducing efficiency, procedural �
z
w
reforms, administrative reforms, etc.
�
o While doing all this, it is not supposed to question the policy of the government. <(
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o In rare cases, where the policy itself is wasteful, it is allowed to question the same. In this case, it c::
can also suggest alternative policy. �
o It also makes suggestions as to the form in which the budget should be presented to the Parliament.
• The Estimates Committee is also called as the "Standing committee of the Parliament on �
Administrative Reforms" as it is responsible for many of the reforms in financial administration.
Reforms like separating the accounting function from the auditing function of the CAG,
i�
z
w
Performance budgeting, have been recommendations of the Estimates Committee.
�
• It is sometimes also referred to as the "Continuous Economy Committee" as it is continuously <(
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subjecting the expenditure of the government to detailed scrutiny. c::
• Even though the recommendations of the Estimates Committee are not binding in nature, almost 97 �
z
percent of its recommendations have been accepted by the government.
z
0
::)
 Committee on Public Undertakings: 0 00:48:3 5

• It was the last of the financial committees to be set up. It was set up in 1964.
• It consists of 22 members, 15 from the Lok Sabha and 7 from the Rajya Sabha. Technically, it is a
committee of the Lok Sabha, similar to the PAC.
• They are subject to election every year. Election is based on the principle of proportional
representation by means of a single transferable vote.
• Functions of Committee on Public Undertakings:
o It examines reports of PS Us.
o It examines reports, if any, of the CAG on PSUs.
o It also investigates whether the operations of PSUs are being managed in accordance with sound
business practices, good commercial principles, etc.
o It prepares two kinds of reports-vertical reports and horizontal reports
o Vertical report-prepare a thorough report on the overall working of one PSU E.g. Report on ONGC
(/)
o Horizontal report- it deals with a certain specific issue that concerns the whole public sector. E.g.
l!)
z Report on the disinvestment policy.
0
w • A weakness in the working of the Committee on Public Undertakings is that after examining a PSU for
w
u a certain year, its turn for examination again may come after 7-8 years, due to the sheer number of
0
a:: PSUs to be examined. This creates a sense of indifference and casualness in the working of that
ll..
(/) particular PSU.
w
w • Hence, the Committee on Public Undertakings has been able to investigate all PSUs in the country,
even though some PSUs have been relatedly investigated.
�
�
0
u Department Related Standing Committees (DPSC) : 0 00:54:00

� • Departmental committees also exercise some financial control as the budgetary estimates of the
� concerned ministries in the third stage of the budgetary enactment are sent to these departmental
z
w
�
standing committees.
<t: • They were started in India in the year 1993 under the Narsimha Rao government. In those days, there
:J
a:: were 17 DPSC with each consisting of 45 members (30 from Lok Sabha and 15 from Rajya Sabha).
f • Presently there are 24 DPSCs with each consisting of 3 1 members (2 1 from Lok Sabha and 10 from
Rajya Sabha) .
� • The members are nominated for a period of one year and there is no provision for election like other
[ financial committees.
f­ • Of these 24 committees, 16 are under the administrative control of the Speaker of Lok Sabha and 8
z
w
� are under the administrative control of the Chairperson of Rajya Sabha.
<t: • Functions of DPSCs:
:J
a:: o They consider the budgetary estimates of various ministries.
f o They also consider bills of concerned ministries.
z
0
z::> o They scrutinize the annual reports of concerned ministries.
 o They also consider a long term policy document of the concerned ministry. For E.g. National Health
Policy.
o A unique provision with respect to DPSCs is that the minister concerned has to present a 6 monthly
statement to the house in terms of to what extent the recommendations made by the concerned
DPSC have actually been implemented.

Critical Evaluation of Committees: 0 00:59:09

• Inadequacy of expert assistance:
o Each committee does not have adequate assistance from experts, unlike in the case of committees
like the Public Accounts Committee which has the assistance of the CAG.
• Floating membership:
o By the time the MPs are able to use the knowledge gained during the course of one year as a
member of the committee, the committee is re-constituted and the member is appointed to another
committee. (Note: Experts have recommended allowing at least few members to continue in the (/)
same committee in the next year so as to maintain some continuity). (!1
z
• Background of members is not considered while appointing them to a committee: cw
w
o This results in loss of expertise, wisdom and experience of ground reality with the member which u
would have been useful to a specific committee. 0
c::
0..
• M Ps have started to move along party lines in the committees: (/)
w
o This adversely affects the objectivity of the debate w
and hampers the accountability of the executive to Bills referred to Standing
Committees (%) �
the Parliament. (Note: It has been suggested that the �
80 -.-------------- 0
transcripts or the minutes of the committee u
meetings should be made public, after the meeting is 60 �
ORY
over). 40 [CATEGO �
NAME], RY z
w
• Bills not being referred to D PSC: VA L U E
20 -t------<.,;[,___-'-] ..J-----------i N A M E ],
�
o Under the garb of efficiency, bills are not being 0 +-----�-----===; (VALU E] <(
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referred to standing committees and are being c::
passed directly by the Parliament without adequate �

scrutiny.
o In this context, experts believe that some sacrifice of efficiency in the government is not only �
inevitable, it is sometimes desirable. Adequate analysis of the bill entails uploading of public
interest.
i
�
z
w
o In the 15th Lok Sabha, 7 1 percent of the bills tabled were submitted to the standing committees for
�
detailed scrutiny. In the 16th Lok Sabha, only 27 percent of the bills were referred to committees. <(
:::::i
c::
Other committees: 0 01: 15: 15 �
z
z
• Business Advisory Committee (BAC): 0
► Each house has its own BAC. ::)
 o The presiding officer of the House is the ex-officio chairperson of the BAC.
o This committee lays out the scheduling of the Parliamentary business, time to be allotted to various
items on agenda, etc.
• Committee on Absence of Members:
o Present only in Lok Sabha.
o It scrutinizes the cases of those MPs which have been absent for 60 days without the permission of
the House. It also considers applications of MPs for leave of absence.
o In the Rajya Sabha, as there is no such committee, the issue of absence of members is dealt with by
the House collectively.
• Committee on Private Member Bills/Resolutions:
o Present only in Lok Sabha.
o In the Rajya Sabha this matter comes under the Business Advisory Committee of Rajya Sabha.
• Committee on Empowerment of Women:

(/)
o It is a joint committee having 30 members (20 from Lok Sabha and 10 from Rajya Sabha)
l!)
z o This committee reviews all the measures taken by the government towards securing equality and
0
w
dignity for women.
w o It also scrutinizes the annual report of the National Commission for Women.
u
0 • Ethics Committee:
a::
ll..
(/)
o It exists separately in both houses.
w o It lays down code of conduct for MPs, investigates any indiscipline or violation of any decorum.
w
o It also suggests the kind of actions to be taken on such violations.
�
� • Rules Committee:
0
u o It exists separately in both houses.
� o The presiding officers of the House are ex-officio chairpersons of the Rules Committee.
� o They examine all aspects of parliamentary rules, procedures; make suggestions to additions or
z
w amendments to such rules.
�
<t: • Committee on Privileges:
:J
a:: o It exists separately in both houses.
f o It examines all questions of parliamentary privileges
o In certain cases, it also determines whether violation or breach of privilege has taken place and
� suggests the action to be taken in case of such breach.
[ • Committee on Petitions:
f­ o It exists separately in both houses.
z
w o It receives and investigates petitions from stakeholders, pressure groups, etc.
�
<t: o They report to the House about specific complaints in those petitions and recommend remedial
:J
a:: action.
f • Committee on Government Assurances:
z
0 o It exists separately in both houses.
z::> o It takes follow up action on the assurances given by the minister on the floor of the house.
 • Committee on welfare of SC/STs:
o It is a joint committee of 30 members (20 from Lok Sabha and 10 from Rajya Sabha)
o It examines the entire gamut of the welfare of SC/STs.
o It also scrutinizes the annual reports of National Commission for Scheduled Castes and National
Commission for Scheduled Tribes.
• General Purpose Committee:
o It exists separately in both houses.
o Any matter not covered by any other committee, lands up before the General Purpose Committee
o Hence all the residuary matters fall under the subject of this committee.
o The presiding officers are ex-officio chairpersons of the General Purpose Committee
• House Committee:
o It exists separately in both houses.
o It ensures that adequate residential, accommodation, boarding, lodging facilities are provided to the
MPs while they are in Delhi.
(/)
o Joint Committee on Salary, Allowances ofMPs: (!1
z
o It has 1 0 members from Lok Sabha and 5 from Rajya Sabha cw
o It recommends all changes, alterations in the salaries, perks and allowances ofMPs. w
u
• Joint committee on Office of Profit: 0
c::
o It has 10 members from Lok Sabha and 5 from Rajya Sabha
0..
(/)
w
o It advises the Parliament as to what offices under the government can be considered to be included w
in the Parliament Prevention of Disqualification Act, 1 9 59.
• Joint Library Committee:
�
�
o It looks after the library of the Parliament. 0
u
• Committee on papers laid on the table: �
o It exists separately in both houses. �
z
w
o It examines all reports and papers which are laid on the table of the House.
�
o It also reports any violation, any mistakes with respect to laws, constitution in those reports and <(
:::::i
papers. c::
o It also checks any undue delay on the part of the government in tabling of those reports. �
• Committee on Subordinate Legislation:
o It exists separately in both houses. �
o It keeps a check on the exercise of delegating the law making power to the executive.
o It ensures that the instruments of subordinate legislation are in conformity with the letter and spirit
i�
z
w
of the actual law framed by the Parliament.
�
<(
0 :::::i
Consu ltative Committees: 01:30:20 c::
• These are organized by the Ministry of Parliamentary Affairs, and they are attached to various �
z
ministries. These committees are organized by the government and not by the Parliament. 0
• Around 38 consultative committees exist in present times. z
::)
 • The minister concerned with the ministry to which the consultative ministry is attached is the
chairperson of that consultative committee. Thus, they are not Parliamentary Committees.
• These committees provide a platform to the MPs to have some informal interaction with the
concerned Minister about the policies, programmes, schemes, etc. of that ministry.
• No more than 30 members can be nominated to these consultative committees.

Parliamentary forums: 0 0 1:3 2:48

• It was the brainchild of the speaker during the times of UPA-1, Somnath Chatterjee.
• He found that the matters being brought before the Parliament were specialized and technical in
nature and the questions raised by the MPs on these matters, the kind of contribution the MPs were
making to Parliamentary debates were totally ill informed and innocent of technicalities. The MPs
were not able to understand the complexity of these issues.
• Hence, he suggested to come up with Parliamentary Forums as a platform for MPs to call for
(/)
interaction with experts from concerned departments or domain experts from outside to enhance
l!)
z their knowledge.
0
w
• It was also intentioned to sensitize MPs about the latest information on these aspects so that they
w can raise these matters more effectively in the Parliament.
u
0 • They were also envisaged to get information from all important government and non-government
a::
ll..
(/)
entities across the country, prepare an integrated database on a particular topic so as to improve the
w knowledge of MPs.
w
• Each Parliamentary Forum consists of 31 members (2 1 from Lok Sabha and 10 from Rajya Sabha).
� • A member can remain a member of the Parliamentary forum for a period of 5 years or resign anytime.
�
0 • Presently there are around eight such forums:
u
�
� Pa rliame ntary
z
w Forum o n Water , P a rliamentary Pa rliame nta ry
, Pa rlia m e ntary
� Fo rum o n Disaster
Conservatio n and F o rum o n C hild re n F o rum on Yout h
<t: M a n ageme nt
:J Ma nagement
a::
f
P a rlia m e nta ry P a rliame nta ry
, P a rlia m e nta ry , P a rlia m e nta ry
Forum o n F o rum on Global
F o rum o n Mille nium F o rum o n Artis a n s
� Populatio n a n d Wa rmi ng a n d
Develo pme nt Goals a n d C rafts- peo ple
[ P u blic Healt h Climate Cha nge
f­
z
w • Except, the Parliamentary Forum on Population and Public Health which is presided by the
�
<t: chairperson of Rajya Sabha, all other forums are presided by the Speaker of the Lok Sabha.
:J
a::
f Difference between parliamentary forums and parliamentary committees: 0 0 1:38:56
z • Parliamentary committees have statutory sanction. Whereas forums were created on the initiative of
0
z::> the Speaker during the tenure of UPA-1.
 • Ministers cannot become members of committees, but can be part of Parliamentary forums.
• Parliamentary committees have the legal right to enforce production of records, reports or
documents, deposition of civil servants and call them for interrogation. No such formal powers are
available with Parliamentary forums.
• In response to committee's reports, government has to prepare an Action Taken Report, which is not
the case with Parliamentary forums.

Ad hoc committees: 0 01:40:25

• They can be set up occasionally.
• For e.g. the Railway Convention Committee is a joint ad-hoc committee of the two houses, it examines
aspects of Railway Ministry's finances or ad-hoc committee on MPLADS scheme, under which Rs.5
crores are given to each MP to carry out local constituency developmental work.
• Certain Ad-hoc committees have also been set up to investigate specific corruption allegations or
scams in the country. For e.g. Joint Parliamentary Committee (J PC) to probe on the Bofors Scandal (/)
set up in 1987, Joint Parliamentary Committee on Harshad Mehta scam set up in 1992, Joint (!1
z
Parliamentary Committee on Ketan Parekh Scam in 2001, Joint Parliamentary Committee on cw
pesticides in Colas set up in 2004. w
u
• In 20 11 J PC on 2G scam, in 2013 J PC on Augusta Westland helicopter purchase scam. 0
c::
0..
(/)
Proceedings of Parliament: 0 w
01:44:01 w
Question hour:
• It is the first hour of every Parliamentary sitting. It usually begins at 1 1 AM and ends at 12 PM, on a �
�
daily basis. 0
u
• It may not be held on certain days: �
o When there is a President's address �
z
w
o On the Budget presentation day
�
o When the house sits for a holiday <(
:::::i
o When the Parliament sits for an extended period. c::
o The question hour was suspended for the first time in history for a regular sitting during the 2020 �
Monsoon session by the government due to COV ID-19.
�
Note: Right to interpellation: It is the right of the legislators to ask questions to the Ministers of the
government. It was introduced by the British in India through the Indian Councils Act, 1892.
i�
z
w
�
• During the question hour, various types of questions can be asked: <(
:::::i
o Starred: c::
► The member asking the question expects a verbal response from the minister. �
z
► He/she can further ask supplementary questions to the response of the Minister. 0
► The Green Paper list contains all the starred questions which are supposed to be answered on z
::)
 that particular day.
o Unstarred:
► The member only seeks a written reply from the Minister
► The white paper list contains all the unstarred questions which are supposed to be answered on
that particular day.
o Short notice:
► It is a notice having notice period of less than 10 days for the Minister to respond
o Questions to private members:
► Members can ask questions to private member with respect to a bill introduced by the private
member or a resolution/motion moved by him/her in order to get more clarification.
• The minister can refuse to answer a question. But when the concerned MP feels that the Minister is
unreasonably trying to hide behind excuses, just to avoid answering a question which may lead to
some irregularity being exposed, the member can finally make a petition to the Presiding officer.
(/)
Then the decision of the presiding officer of whether the Minister will answer or not is final.
l!) • Utility of question hour:
z
0
w
o It has a deterrent effect on the government and keeps the ministers and civil servants on their toes.
w o It also helps in exposing the lapses or mistakes of the government, which further helps in shaping
u
0 public opinion.
a::
ll..
(/)
o It helps to get information about what the government is actually doing. It may also be used as a
w
w tool to know the official stand of the government.
o It is also used as a tool to embarrass, insult and create uncomfortable situations for the
�
� government.
0
u
� • Problems with the question hour: 0 02:02:38

� o Not all questions get answered: In a session, no more than 30-45 % of the questions get
z th
w answered as there are too many MPs. In the 15 Lok Sabha only 10% of the questions got
�
<t: answered due to routine disruptions.
:J
a:: o Prone to corruption: 'Cash for Query' scam during the term of UPA-1, wherein MPs took money
f from industrialists, big businesses, etc. to ask questions to the Ministers.
o Non-seriousness of members as well as Ministers: Member or the minister concerned remaining
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absent on the day of answering the question.
[ o First casualty of disruption: Question hour, being the first hour of proceedings, often gets disrupted
when the opposition makes up its mind to disrupt the proceedings of the House that day. (In this
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<t: then the question hour would not become an immediate casualty of disruptions).
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a:: o Quality of questions: For the previous two Lok Sabhas, 70% of the questions were of such nature,
f that answer to those questions could have been acquired by simply filing an RTI.
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Zero hour: 0 02:10:50
• It is an Indian innovation and an informal device, which is not mentioned in the Rules of Business.
• It is followed just as a convention. No member can raise a point of order if the zero hour is not held on a
particular day.
• Since 1 9 60s it has become a regular device.
• From 1 1AM to 12PM there is provision for the question hour, further there is lunch at 1 PM. After lunch,
the Parliament assembles to take up the agenda of the day. Hence the gap between the end of the
question hour and the start of agenda of the day is filled by the zero hour.
• In the zero hour, theMPs can raise any issue of public importance without giving prior notice.
• As many MPs want to raise issues in the zero hour, some kind of regularization should happen; hence
they have to give a notice to the presiding officer prior to raising an issue in the zero hour.
• The zero hour is being formalized by allowing the issue to be raised in the Lok Sabha under Rule 377
of Lok Sabha and Rule 180A in the Rajya Sabha (Special Mentions Rule).
• Zero hour has an element of surprise, as the Minister is morally supposed to respond to the issue (/)
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raised in the zero hour by any member, if theMinister is present in the House during the zero hour. z
• The duration of zero hour varies from 15 minutes to 30 minutes or even more than one hour. The cw
term 'zero hour' does not mean that the time allotted will be one hour. The time to be allotted is
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 U N I O N PARLIAM ENT (PART-6) - M OTI O N S, RO LE
OF O P POSITI O N AN D PARLIAM ENTARY PRIVI LEG ES
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Motions: 0 00:00: 10
• A motion is a proposal brought before the House to elicit the opinion or decision of the House.
• Motions can be various types:
• Substantive motion:
o It is a self-contained proposal, not depending on any pre-existing motion, for eliciting the opinion
of the House. For e.g. No confidence motion, adjournment motion.
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• Subsidiary motion:
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C, o It is a motion which arises out of a pre-existing motion. For e.g. A motion to refer the bill to a select
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reading was passed.
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� • Closure motion:
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� o It is the motion tabled to close the debate on an issue and put the matter to vote.
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o Closure motion can be of various types:
0 ► Simple closure: When the matter is sufficiently discussed by all members concerned, then a
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z ► Kangaroo closure: This means that instead of discussing all the components of the bill, only
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0 important matter to the other important matter, it is called a kangaroo closure.
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a.. ► Closure by compartments: It means clubbing or grouping of sections which are similar into
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compartments, then discussing the compartments as a whole and putting the compartments to
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0 ► Guillotine closure: It is the most undemocratic closure motion. It means putting all the
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• Adjournment Motion: 0 00:09:28
� o It is a device available only in the Lok Sabha.
o It is used to draw the attention of the House to a matter of urgent grave national importance.
o If it is allowed by the Speaker, the agenda of the day is suspended and the House sits down to
discuss the issue which is highlighted in the adjournment motion proposal.
o Once the motion has been granted, the minimum time of discussion is two and a half hours.
o Before the speaker would even consider the adjournment motion, it should satisfy certain
requirements.
• Requirements for an Adjournment Motion: 0 00: 1 2:48
► It should raise an urgent matter of national importance.
► It should involve the responsibility of the government of India.
 ► It should not raise a question of privilege.
► It should not revive discussion on any matter which has already been discussed in the current
session.
► It should be specific.
► It should not raise a sub-judicial matter.
► It should be supported by at least 50 Lok Sabha MPs.
o Even if all these requirements are fulfilled, there is no guarantee that the speaker will allow it. (/)
o When the Speaker allows an adjournment motion, it is followed by minimum two and a half hour w
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discussion, to be followed by voting. The voting is on the response or conduct of the government. If ...J

the adjournment motion is passed after voting, it amounts to censure of the government i.e. the 5
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Parliament has reprimanded the government. a..
• Privilege Motion: 0 00: 1 7:40 �
o lt is a typical device available to MPs against Ministers. �
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o It can be moved against a minister who has breached the privilege of the house by providing �
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misleading, distorted or false information to the House :::i
• Dilatory Motion: 0 00:18:57 c::
o It can be moved to delay or postpone the activities of the House on any issue. Cl
• No day yet named motion: 0 00:20: 12 z
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o A proposal for the motion is given, it is admitted, but no date or time has been appointed by the z
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House to take it up. �
• No Confidence Motion: 0 00:21:00 in
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o It is normally introduced by opposition parties to test the majority of the ruling party. a..
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o It is not specifically mentioned in the constitution. LL
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o In an indirect way, shades of no confidence motion are found in Article 75(3) which says that the w
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Council of Ministers is directly responsible to the Lok Sabha, and in Rule 198 of the Rules of 0
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Business of the Lok Sabha. vi"
o Conditions for no confidence motion to be introduced: z
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► It can be introduced only in the Lok Sabha.
► It can be introduced once in every session. (Experts have suggested to make this provision once �
every year, in order to avoid wastage of time)
► At least 50 Lok Sabha members must support it.
► It should be against the whole government and not against an individual minister.
► No grounds for advancement of motion need to be specified.
o Note: The 1st no confidence motion was introduced in 1963 against the Nehru government by
Acharya Kriplani. Since independence, 27 no confidence motions have been introduced so far, the
highest of them i.e. 15 of them were against the Indira Gandhi government. In fact, all the 27 no
confidence motions have failed. The Vajpayee government, Deve Gowda government or the VP
Singh government lost the trust vote and not the 'no confidence motion'.
• Trust vote:
 o Trust vote is a l so known as the 'confidence motion', to be sought by the govern ment headed by the
Pri me M i n ister, u s u a l ly of a coa l ition govern ment, to esta blish and demonstrate that he/she ca rries
the vote of majority mem bers of the Lok Sabha.
o There a re no p rovisions i n the ru les, but it i s usually introduced under Rule 1 8 4 o f Lok Sabha,
which rel ates to debates in Lok Sabha fol l owed by voti n g . (Whereas u nder R u l e 193 of Lok Sabha,
debates i n Lok Sabha which a re not fo l l owed by voti ng)
o Fol lowi ng a re the Pri m e M i n i sters who have lost the trust vote:
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► Charan Singh resigned without facing it ( 1 9 79)
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5 ► Vajpayee resig ned without facing it ( 1 996)
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a.. ► H.D. Deve Gowda lost it ( 1997)
� ► Vajpayee lost it, by one vote o n ly ( 1999)
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� o The word 'censure' means to 'scold' or i n a fo rm a l way, to 'reprimand' or 'express displeasure'.
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� o It can only be introduced in the Lok Sabha.
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o Specific reasons have to be given for its i ntroduction.
0 o It can be introduced against the whole government, a n d also against individual ministers.
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0 • The difference between a motion and a resolution is less of content and more of procedure.
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a.. • All reso l utions ca n be described as Substa ntive M otions, which is a self- conta i ned independent
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p roposal, not depend i n g on a ny p re-existi ng motion.
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• Types of reso l utions:
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P rivate Mem be r
Gove r n m e nt Resolutio n Statuto ry Resolutio n
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• It is i ntrod u ced b y a • It is i ntrod u ced b y a • It is a reso l utio n w h ich

M i n i ste r p r ivate m e m be r has p rovi s io n s i n the
co n stitutio n or i n so m e
la w . T h ey h ave a
statuto ry effect if t h ey
a re pa ssed
• Fo r e . g. Pa r l i a m e nt
pa ss i n g a reso l utio n fo r
re m ova l of CAG, re m ova l
of j u d ges, s pea ke r etc.
Other devices: 0 00:39:40
• Half hour Discussion:
o It can be allowed by the speaker for three occasions/days in a week, to raise a debate on any issue of
public importance, which has been a subject of recent question but the answer given by the
minister needs more clarification and elaboration.
• Short duration Discussion:
o Its period can range from one hour to two hours. Usually, it is allowed by the speaker for 2 days in a (/)
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week to raise any issue of public importance. l!>
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• Calling attention notice: ...J
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o It is an Indian innovation. ii:
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o A member of the House, with prior permission of the presiding officer, can draw the attention of a
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Minister to an issue of urgent public importance and require him to make a brief statement on it, at
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short notice. z
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Naming a member: 0 00:43:57 :::i
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• It means that the presiding officer, by naming a member, draws the attention of the House to the
unruly conduct of a member who is disregarding the instructions from the presiding officer, with a Cl
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view to some action being taken against him. <{
• Once a member is named, Rule 373 of Lok Sabha says that the Speaker can direct that member to z
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withdraw himself from the proceedings of the House for the remainder of the day. Similar power is �
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given to the Chairman of Rajya Sabha under Rule 255 of Rajya Sabha. 0
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• If the member is routinely engaging in creating chaos and ruckus in the House, the member can be a..
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suspended by the Speaker under Rule 37 4-A of the Lok Sabha. Before 200 1 , the House collectively LL
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had the power to suspend the concernedMP. w
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• Since 200 1 , Rule 374-A of the Lok Sabha came into being, which says that once a member is named, 0
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he/she stands automatically suspended for a period of five consecutive sittings or for the remainder of vi"
the session, whichever is lesser.
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• But the power to revoke the suspension in the Lok Sabha is not with the speaker, it is with the whole
House. �
• In the Rajya Sabha, the chairman does not have the power to suspend members. It rests with the
whole House of Rajya Sabha to suspend as well revoke the suspension.

Secretary General: 0 00:52:44

• Lok Sabha and Rajya Sabha have their own secretariat. It is provided for, that both the Houses will have
their own secretarial staff as per Article 98.
• The Secretariat is headed by the Secretary General, whose status is equivalent to that of the Cabinet
Secretary.
• The Secretary General is appointed by the presiding officer after consultation with the leader of the
 house and leader of opposition.
• The Secretary General helps the presiding officer in the conduct of proceedings.
• All notices are addressed to the Secretary General.
• The Secretary General is also considered as the custodian of all the papers and records of the House.

Leader of the House: 0 00:55: 18

• Whichever house the Prime Minister is a member of, he/she automatically becomes the Leader of
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that House. The Prime Minister, further, nominates a senior Cabinet Minister as leader of the other
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...J House. For e.g. PM Modi is the leader of the House of Lok Sabha, whereas former PM Manmohan Singh
5 was the leader of the house of Rajya Sabha.
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a.. • In the USA, the leader of the House is referred to as the 'House Majority Leader' and the leader of
� opposition is called as 'House Minority Leader'.
� • Functions of the Leader of the House:
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� o On several occasions he speaks on behalf of the whole house.
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� o He is also consulted by the presiding officer on matters relating to arrangement of government
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business, private member business in the House, on matters relating to adjournment, prorogation
0 of the House, etc.
z o The job of the Leader of the House in India has become very difficult in present times as there is
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z multi-party system and there is growing hostility between the treasury benches and the opposition
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a.. Leader of Opposition: 0 00:59:22
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• It has been given statutory status under the Salaries and Allowances of the Leader of Opposition
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0 • The Act also gives the status to the Leader of Opposition equal to that of a Cabinet Minister.
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• As per the above Act, requirements to be fulfilled to be appointed as Leader of Opposition are:
z o He has to be a member of the House
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o The person has to be recognized as the Leader of Opposition by the Presiding Officer.
� o The person must be the leader of the party in opposition with the greatest numerical strength.
• The Direction 121 of the Speaker's Direction, issued by the first Speaker, G.V Mavalankar, talks
about the 10 percent criteria which said that the leader of the party securing at least 10 percent of
the seats in the house would be the leader of the Opposition in the House. (10 percent was selected
as a criteria because 10 percent of the House represents the quorum, so that in a scenario where the
ruling party is not interested in the session, the opposition party can on its own hold the session
independently)
• As a result of the 10 percent rule, there was no leader of opposition from 1952 to 1969. In 1969, Ram
Subhag Singh of the Congress (0) became the first leader of opposition in Lok Sabha. Again from
1971 to 1977 and from 1980 to 1989, no leader of opposition was recognized. But since 1989 to
20 14, i.e. from the 9th Lok Sabha to the 15th Lok Sabha, there has always been a Leader of Opposition. In
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the 16 and the 17 Lok Sabha, nobody has been recognized as the Leader of Opposition.
• Issues with the 10 percent criteria:
o The directions issued by the speaker cannot override the law of the Parliament.
o In the laws which have created bodies like N HRe, Lokpal, eve, etc. it is mentioned that while
appointing the members and chairperson to these bodies, if nobody is recognized as leader of
opposition, then the leader of the single largest party in opposition shall take his/her place.
o Hence, it would be wise enough to appoint the leader of opposition even when the 10 percent (/)
criterion is not fulfilled. w
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• The position of Leader of Opposition carries much importance- ...J

o The Leader of Opposition is required to find faults in the working of the government. 5
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o He is supposed to present lapses of the government and present alternative views, without having a..
any right to get them enforced. �
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• Nonetheless, opposition is a key component in management of a Parliamentary democracy. Thus, the z
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Leader of Opposition has responsibility not just to the Parliament, but the whole nation. �
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Note: In the Delhi Legislative Assembly, the BJP was recognized as the opposition party by the Aam Aadmi
Party, even when it had not won at least 10 percent of the seats. Cl
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Role of opposition: 0 01:16:07 z
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• Hold the government accountable: �
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o It does so by exposing lapses, corruptions, failures, inaction, etc. 0
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o It has critical responsibility towards the entire nation for scrutinizing the works of the government. a..
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o It thus ensures adequate checks and balances on the executive power. LL
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• Question and occasionally confront: w
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o It questions the government on important issues. 0
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o The opposition can question and even confront the government, but it should not be made a habit, vi"
as rightly said "the King's government must always go on." z
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o It must be realized that the opposition is a part of the decision-making process, but the decision­
taking process. It has the right to be consulted, but not the right that what it consults as a decision, �
should be taken. The decision-taking right belongs only to the ruling party.
• Shape public opinion:
o Voting is contingent on how opinions are formed, deformed, altered, amended, and presenting
different perspectives in front of the people which helps in shaping public opinion.
• Present alternative point of views and proposals:
o It may come up with better proposals than the government.
o This alternative proposal may serve the public interest better.
• Shape the agenda of government:
o It brings the attention of the government to something it may have overlooked, intentionally or
unintentionally.
 Problems in securing an effective opposition: 0 01:24:40
• Party composition of Lok Sabha:
o Due to the majority party being the ruling party, there is a limit to which the opposition can censure
the government.
o However even with smaller numbers, in the 1970s the opposition was much more effective than
seen during the present times.
V) • Inability to generate information on government activities proactively:
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C, o Opposition parties are reactive in nature.
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...J o Major source for information on the government is highly dependent on the media.
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c2 o When the media is controlled by the ruling, then the opposition is without any issues as well.
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o Hence, the opposition should develop an entire cadre of officers responsible for gathering accurate
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information on the workings of the government.
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z • Focus on issues with immediate political payoffs:
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� o The larger issues of public governance remain neglected.
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� o For e.g. excess focus on the Pegasus issue recently, while neglecting other important issues having
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larger impact on the public welfare.
0 • Lack of unity:
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z • Political parties in India are flimsy institutions:
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i= o No shadow cabinet (It is a system seen in the UK, wherein the opposition party leaders mirror the
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0 positions of ministers in the ruling government. Each shadow minister tracks the activities of the
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a.. actual cabinet minister and then lead the house in questioning that particular ministry. It also
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includes the Shadow Prime Minister having vigilance over the activities of the actual Prime
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0 o No designated speakers on specific issues in order to leverage the wisdom and experience of MPs
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l/) who are experts in those issues.
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0 o No ideological filters results in no stability in the political party, which affects the effectiveness of the
opposition.
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Parliamentary privileges: 0 01:39:32
• These are the special immunities and concessions enjoyed by the members of parliament.
• These privileges are enjoyed individually as well as collectively by the members.
• These privileges ensure the freedom, dignity and independence of the House.
• They also ensure that there are no obstructions in the work of the Members of Parliament.
• They are not codified.
• Sources of Parliamentary privileges:
o Constitution:
► Articles 105 and 194 talk about privileges at the central level and at the state level respectively.
 ► Article 105:
( 1) Subject to the provisions of this constitution and the rules and standing orders regulating the
procedure of Parliament, there shall be freedom of speech in Parliament
(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything
said or any vote given by him in Parliament or any committee thereof, and no person shall be
so liable in respect of the publication by or under the authority of either House of Parliament of
any report, paper, votes or proceedings (/)
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of w
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the members and the committees of each House, shall be such as may from time to time be ...J
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defined by Parliament by law, and, until so defined shall be those of that House and of its ii:
members and committees immediately before the coming into force of Section 15 of the a..

Constitution (Forty fourth Amendment) Act 1978 (Note: this amendment was done in order �
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to omit the expression ' House of Commons', as it was found odd to name a foreign legislative z
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chamber in the Indian constitution) �
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Note: This provision was used to disqualify the MPs in the 'cash for query' scam. As they could not be
disqualified under provisions of other articles like Article 102 or Schedule X. Thus, even though, it was not Cl
codified. just because the House of Commons had the right to disqualify MPs, the Lok Sabha disqualified the z
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MPs who took money to ask questions in the Parliament. The privilege of the Parliament with respect to the z
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disqualification was upheld in the Raja Rampal Case, 2007) �
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(4) The provisions of clauses ( 1 ), ( 2 ) and ( 3 ) shall apply in relation to persons who by virtue of a..
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this constitution have the right to speak in, and otherwise to take part in the proceedings of, a LL
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House of Parliament or any committee thereof as they apply in relation to members of w
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Parliament. 0
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Note: A minister can take part in the proceedings of the other house as well if the issue is related to his z
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ministry. Also, the Attorney General and the Advocate General have the right to take part in proceedings
of the Parliament and the State Legislative Assembly, respectively. �

Note: As per clause (1), an MP is free from the limitations imposed on ordinary citizens under Article 19 (2),
while speaking on the floor of the Parliament, as his freedom of speech comes under Article 105.

o Laws
o Rules of house
o Conventions
o Judicial intervention
• Same kinds of privileges are available at the state level also.
• Even though Parliament consists of the Lok Sabha, Rajya Sabha and the President, parliamentary
 privileges are confined to the Lok Sabha and Rajya Sabha only. The president does not enjoy any
parliamentary privileges.

Collective Privileges: 0 0 1:49:46

• Right to publish its own proceedings and restrain others/outsiders from publishing their
proceedings.
• Make rules for conduct of business.
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• Punish members/outsiders for breach of privilege and contempt of the house:
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...J o Breach of privilege: When a MP or outsider disregards or attacks the privilege of the house. The
5 house can refer the matter to the Privileges committee or collectively decide among members as
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� o Contempt of house: Anything that obstructs the functioning of the Parliament or attacks the
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independence, freedom and dignity of the House. For e.g. Late
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apology.
0 o Contempt of house is a wider term which may include breach of
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z is also contempt of the house, but every contempt may not be a
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0 o Whether contempt or breach of privilege, the Parliament can refer the matter to the privileges
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a.. committee for action to be taken or it can decide the matter collectively. If the house feels, whoever
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is guilty of it, especially the outsiders, the presiding officer can issue warrants for his production
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0 o The house collectively by adopting a motion can send the person to jail as well. For e.g. in 20 17, the
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z • The right to immediate information about the arrest, release, conviction, or imprisonment of a
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member.
� • Article 122: The courts cannot inquire into the proceedings of the Parliament
o (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any
alleged irregularity of procedure.

Note: In Raja Rampal Case, 2007 the court adjudged that this protection is not available to the Parliament
committing unconstitutional acts.

o (2) No officer or member of Parliament in whom powers are vested by or under this

Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall
be subject to the jurisdiction of any court in respect of the exercise by him of those powers
Individ ual privi leges: 0 02:0 1 : 1 5
• Articles 105 and 194 ta l k a bout p rivi leges a t t h e centra l level a n d a t t h e state level respectively.
• Freedom from arrest in civil cases during the session, 40 days prior to the commencement of the
session and 40 days after the p rorog ation/end of the session.
• While the H ouse is i n session, no MP can be compelled to become a witness for a case pend ing before
a ny cou rt of l aw, without the perm ission of the H ouse.
• An MP cannot be asked to be a member of the Jury i.e. they a re exem pted from j u ry d uty, while the (/)
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Natu re of privileges: 0 02:04:28 5

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• These p rivi leges a re enjoyed only when the MPs are performing their parliamentary duties and not
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when they a re i n their i n d ivid u a l capacities.
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• They cannot be seen as special rights. These p rivi leges do not viol ate eq u a l ity by l aw. These p rivi leges z
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a re g iven to them o n ly beca use of the u n i q u e natu re of their work. �
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• They a re also referred to as 'indirect rights of citizens'. If as an MP these privi leges a re not g iven , then :::i
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he/she wi l l not be able to freely exp ress h i mself or herself on the floor of the H ouse and fa ithfu l ly
represent the concerns of the people who have voted fo r them. Cl
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Codification of privi leges: 0 02:09:45 z
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• Poi nts i n favor of cod ification: �
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• Poi nts agai nst cod ification: LL
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o Perspective of the ruling party cou ld be easily i nserted i n the b i l l to cod ify privi leges. w
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o Difficult to define b reach of p rivi lege a n d conte m pt of house. 0
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o Presiding officer's powers to address specific situations and expand the privi leges to secure the vi"
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d i g n ity of the House wi l l be i m pa i red. 0
o O n ce codified, the privileges will come under the discipline of Article 13 (2) i.e. a law that viol ates
a ny of the fu ndamenta l rig hts ca n n ot be made. In this case, if the cod ified law p rovides fo r a rrest �
a n d p rod uction of persons in the H ouse, without specifyi ng reasons, in case of breach of p rivi lege, it
wou l d a m o u nt to viol ate fu ndamenta l rig hts u nder Article 2 2 .
o These privi leges are generally not abused.
• I n this context, there needs to be clarity whether the parliament can punish, can the punishment take
the form of a jail sentence, if it can, then what can be the maximum term of the sentence, etc.
• Beyond this issue, the privi leges, even if they a re undefi ned or u n cod ified, it is a fa i r situation. Some
concrete privi leges ca n be codified, s u bject to the con d ition that the p rivi leges a re not just confi ned to
that p rovision, as conventions by their very nature are flexible.
 Previous Year's Questions

Q. The role o.f individual MPs (Member o.f Parliament) has diminished over the years and as a result
healthy con·structive debates on policy issues are not usually wit·nessed. How .far can this be
attributed to the anti·de.fection law which was legislated but with a di.f.ferent intention ? (200
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words) (2013)
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� it cannot. with reason thereo.f. (250 words) (2017)
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 r.zil U N ION PARLIAM ENT (PART-7) - VICE PRESI DENT,
RAJYA SABHA VIS-A-VIS LOK SABHA
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Article 63: Vice President of India
• There shall be a Vice President of India.

Article 64: The Vice President to be ex officio Chairman of the Council of States
• The Vice President shall be ex officio chairman of the council of States and shall not hold any other
office of profit:
Provided that during any period when the Vice President acts as President or discharges the functions
of the President under Article 6 5, he shall not perform the duties of the office of chairman of the council
of States and shall not be entitled to any salary or allowance payable to the chairman of the council of
States under Article 97.

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Ill Note: The term 'acts as president' is a term used when the office of the President is vacant on account
� of variety of circumstances like death, resignation, removal, etc. Whereas, 'discharges the functions of
� president' is used when the office of the President is temporarily vacant i.e. when the president is ill, or

� when he/she is temporarily incapacitated.

t-"'
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w Article 65: The Vice President to act as President or to discharge his functions during casual vacancies in
0
v; the office, or during the absence, of President
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0:: • ( 1) In the event of the occurrence of any vacancy in the office of the President by reason of his death,
a.
w resignation or removal, or otherwise, the Vice President shall act as President until the date on which
u
5 a new President elected in accordance with the provisions of this Chapter to fill such vacancy enters
upon his office.
• (2) When the President is unable to discharge his functions owing to absence, illness or any other
cause, the Vice President shall discharge his functions until the date on which the President resumes
his duties.
• (3) The Vice President shall, during, and in respect of, the period while he is so acting as, or
discharging the functions of, President, have all the powers and immunities of the President and be
entitled to such emoluments, allowances and privileges as may be determined by Parliament by law
and, until provision in that behalf is so made, such emoluments, allowances and privileges as are
specified in the Second Schedule.
Note: Article 361 includes the immunities given to the President.

Article 66: Election of Vice President

• ( 1 ) The Vice President s h a l l be elected by the mem bers of a n electora l col lege consisti ng of the
mem bers of both H ouses of Parl i a ment i n accord a nce with the system of proportional representation
by means of the single transferable vote and the voti ng at such election s h a l l be by secret ballot.

Note: For the election of the President, only the elected members are allowed, whereas for the election of
the Vice President, elected as well as nominated members of the parliament a re a l l owed to vote.

• (2) The Vice President shall not be a member of either House of Parliament or of a House of the
Leg islature of any State, and if a member of either House of Parl i a ment or of a House of the Leg isl atu re <(
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of a ny State be elected Vice President, he s h a l l be deemed to h ave vacated his seat i n that House on
the date on which he enters u pon his office as Vice President. :::ii:::
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• (3) No person s h a l l be eligible for election as Vice President u n less he ...I
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o (a) is a citizen of India;
o (b) has co m pleted the age of th i rty five yea rs; <(

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o (c) is q u a l ified for election as a member of the Council of States V)
• (4) A person s h a l l not be eligible for election as Vice President if he holds a ny office of p rofit u nder the
I
G overn ment of I nd i a or the G overn ment of a ny State or u nder a ny loca l or other a uthority s u bject to the al
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control of a ny of the said Governments Expl a n ation For the pu rposes of this a rticle, a perso n s h a l l not V)
be deemed to hold a ny office of profit by reason o n ly that he is the President or Vice President of the �
U n ion or the G overnor of a ny State or is a M i n ister either for the U n ion or for a ny State. �
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Article 67: Term of office of Vice President
Q
• The Vice President s h a l l hold office for a term of five years from the d ate on which he enters u pon his
w
office: Provided that 0::
a.
o (a) a Vice President m ay, by writi ng u nder his h a n d a d d ressed to the President, resign his office; w
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o (b) a Vice President may be removed from his office by a resol ution of the council of States passed >
by a m ajority of a l l the then mem bers of the cou ncil and a g reed to by the House of the People; but no
resolution for the pu rpose of this clause s h a l l be moved u n less at least fou rteen d ays' notice has
been g iven of the i ntention to move the resol ution .
o (c) a Vice President s h a l l , notwithsta nding t h e expi ration o f his term, conti n u e t o h o l d office u nti l h i s
successo r enters u pon his office.
Note:
• The Vice President is neither the member of Rajya Sabha, nor the member of Lok Sabha.
• There is no ground mentioned in the constitution for the removal of the Vice President. There is no
requirement for one-fourth members to sign the 14 day notice for Vice President's remova l , as is the
case for the remova l of the President.
 • Further, a proposal for the removal of the Vice President shall be initiated only in the Rajya Sabha,
which has to be passed by the then members of the Rajya Sabha. Later it has to be agreed to by the
Lok Sabha i.e. passed by a simple majority in the Lok Sabha.
• Explanation: The term 'the then members' means the present maximum strength minus the vacant
positions, which is also called as the 'effective strength'. For e.g. 5 seats are vacant, then the effective
strength becomes 245-5 = 240. The 'effective majority' thus becomes (50%+ 1) of 240 i.e. 121 votes
are required for the Vice president to be removed.

Si m p le m aj o rity Effe ct ive M aj o rity

• M o re t h a n 50% of • Refers to a majo rity

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Ill vot i ng members i n the effe ct ive
t h e H o use. stre ngth of the
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H o use.
• Effect ive st re ngth=
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Va c a nt se ats
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Ill Additional information:
� • As per the President and Vice President Election Rules, 1974, there has to be a Rs. 15,000
� security deposit for contesting election for the post of Vice President.
• The nomination form for election of Vice President has to be subscribed by at least 20 members
�
t-"' of Electoral College as proposers and another 20 members as seconders.
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0
v; Article 68: Time of holding election to fill vacancy in the office of Vice President and the term of office of
w
0:: person elected to fill casual vacancy
a.
w • (1) An election to fill a vacancy caused by the expiration of the term of office of Vice President shall be
u
5 completed before the expiration of the term.
• (2) An election to fill a vacancy in the office of Vice President occurring by reason of his death,
resignation or removal, or otherwise shall be held as soon as possible after the occurrence of the
vacancy, and the person elected to fill the vacancy shall, subject to the provisions of Article 67, be
entitled to hold office for the full term of five years from the date on which he enters upon his office.

Note: There is no provision that the vacancy in the office of the Vice President should be filled within a
period of 6 months, unlike the vacancy in the office of the President which must be filled within a
period of 6 months.
Article 69: Oath or affirmation by the Vice President
• Every Vice President s h a l l , before enteri ng upon h i s office, m a ke a n d su bscri be before the President, or
some person a ppointed i n that beh a lf by him, a n oath or affirmation i n the fol lowi ng form, that is to say
"I, A.8., do (swear in the name of God/solemnly affirm) that I will bear true faith and allegiance to
the Constitution of India as by law established and that I will faithfully discharge the duty upon
which I am about to enter."

Additional information:
• Although the Vice p resident does not h ave d i rect executive res ponsibil ity as the Vice President of
America, he is occasio n a l ly sent to m a n a g e the govern m e nt's d i p l o m atic a n d foreign policy.
• For e.g. Vice President of I n d i a was sent to i m porta nt foreign visits to cou ntries i n Africa a n d Lati n
America, where there is poss i b i l ity of expa nding ties. <(
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Special powers of Lok Sabha: 0 00:27: 18 :::ii:::

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• The Constitution of I nd i a proceeds on the basis of fundamental equality in status of the two houses. ...I
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Neither of the houses is superior to the other. Powers of Lok Sabha may be su perior to that of the
Rajya Sabha, but the status of Lok Sabha and Rajya Sabha is eq u a l . <(
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• T h e expression used t o describe t h e two houses as t h e U pper h o u s e and t h e lower house is a lso not
constitutiona l ly correct i n the context of I nd i a . It is used i n the context of the U K as the 'House of Lords'
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represents the look of aristocracy, clergy and nobility i n the B ritis h Pa rl i a ment it is ca l led the 'Upper al
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House'. As the ' H ouse of Commons' represents the mem bers d i rectly elected by the com mon people, it V)
is referred to a s the 'Lower House'. �
• The Lok Sabha enjoys certa i n s peci a l powers such as: �
o U nder Article 75(3) , the Council of ministers is responsible to the Lok Sabha. It is with the loss of ......
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m ajority in Lok Sabha on ly, that the govern ment fa l ls. Q
o The rig ht to introduce and vote on the money bills exclusively rests with the Lok Sabha. w
o Whenever a joint sitting is held of both the houses, the Speaker of Lok Sabha presides over it. 0::
a.
o Even in the joint sitting, the Lok Sabha enjoys an advantageous position d u e to its higher w
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n u merica l strength. >
o In practica l ly all joint parliamentary committees there is pred o m i n a nce of Lok Sabha. For e.g.
Busi ness Advisory Com m ittee has 1 5 mem bers from Lok Sabha a n d 7 from Rajya Sabha, the
Departmenta l Com m ittees h ave 21 mem bers from Lok Sabha and 10 from Rajya Sabha, etc.
o The Lok Sabha a lso h a s the power to prematurely withdraw or revoke a National Emergency
under Article 352.

Special powers of Rajya Sabha: 0 00:3 5: 12

• It is not s u bject to dissolution .
• Tenure of members is 6 years; one yea r more tha n t h e mem bers o f Lo k Sabha.
• O n ly Rajya Sabha can initiate the proceedings for removal of the Vice President.
 • It has greater continuity in its internal make up, as only !/3rd members retire every 2 years. Hence its
composition does not change overnight. Parliament is a combination of continuity and change, the
continuity element represented by Rajya Sabha and the change element represented by Lok Sabha.
• Article 312 gives the power to authorize the creation of All India Services to Rajya Sabha. The
Parliament gets the authority to make the law creating All India Service, only when the Rajya Sabha
has authorized it by a resolution passed in the Rajya Sabha with 2/3rd majority. (Note: The IAS, IPS and
Indian Forest Service are the All India Services).
• Under Article 249, Rajya Sabha can authorize the Parliament to make a law on a subject in the state
rd
list, by passing a resolution by 2/3 majority. This authorization is valid for one year only. If needed for
more than a year, the Rajya Sabha has to reauthorize it for one more year and so on. Note: A law made
after such a resolution by the Parliament on a state list subject will cease to have effect on the expiry of
<:::r: 6 months after the resolution has ceased to exist. After the 101st Constitutional Amendment Act,
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2016, the Rajya Sabha can also authorize the Parliament to make laws with respect to Goods and
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Services Tax under Article 246A.

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Need for the Second Chamber: 0 00:51:16
< • Tradition:
Vl o The House of Lords is an example of the second chamber as continuation of tradition.
5
<:::r: • Federalism:
Ill o It gives voice to the states at the national level. For e.g. Rajya Sabha of India, the Senate of USA.
� • To review legislation:
� o It brings calmness, sobriety to the debate; it can help to stop a legislation which has been passed in
� a hurry or is ill-conceived by the other house.
t-"' • Functional representation:
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0 o It is not a territorial representation which is provided by the lower house. Functional representation
v; provides representation on the basis of social class, occupational class, etc. For e.g. the
w
0:: Legislative Councils at the state level.
a.
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u
5 o It gives representation to experts, intellectuals, etc. For e.g. 12 members can be nominated to the
Rajya Sabha having special knowledge and expertise in fields of arts, science, literature and social
service.

Utility of the Rajya Sabha: 0 00:58:15

• Enables participation of senior statesmen and politicians:
o Even though the senior politicians cannot participate in regular elections due to various factors, they
can contribute through their years of experience and statesmanship when they are members of
Rajya Sabha. It is in this context; Rajya Sabha is also called as 'House of Elders'.
• Prevents hasty or ill-conceived:
o It presents an element of hesitation with respect to ill-conceived legislation. This role of Rajya
 Sabha is even more important in case of constitutional amendments. The Rajya Sabha is also called
as 'House of Corrections' when the Lok Sabha is referred to as the 'House of Passions'.
• Protects the constitution:
o It helps to guard the constitution from any unwarranted invasion. Rajya Sabha can prevent the
constitution from becoming a plaything in the hands of the ruling party, which has majority in the
Lok Sabha
• Facilitates participation of states in union level decision making:
o The Rajya Sabha is also known as 'Council of States' where the interests of the states are taken up
at the national level.
• Facilitates participation of intellectuals in parliamentary process:
o As there is provision for 12 nominated members to be a part of Rajya Sabha.
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Critique of Rajya Sabha: 0 0 1 :05:40
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• In the US, the upper house i.e. The Senate is more powerful than the House of Representatives. In :::ii:::
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contrast, in the UK, the House of Lords is a very weak upper house. In comparison to the two, the Rajya ...I
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Sabha is not as weak as the House of Lords, nor as strong as the Senate.
• One of the critiques of Rajya Sabha is that it displays a number of non-federal features such as: <(

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People's Act in 2003. It means that a person representing a state in the Rajya Sabha, need not be a
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domicile of that state. al
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o Even when it is a federal chamber, there is representation given to Union Territories. V)
o Nominated members in Rajya Sabha also represent a non-federal feature. �
o Rajya Sabha has weak powers on financial matters, especially money bills. �
o There is inequality of state representation in the Rajya Sabha. In the US Senate, there is equal ......
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representation of 2 seats for each federal state. Q

Why does Rajya Sabha have inequality of states representation? w

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The Indian federation is not a result of a contract of formally independent colonies coming w
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together, like that of the United States of America.
Equality of representation principle is likely to increase the demand for smaller states as every
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state would be entitled to equal number of seats in the Rajya Sabha.
• Difference in population and territorial size of states in India. For e.g. The state of Uttar Pradesh
is equivalent to 65 states of Goa in terms of territorial size. Hence it is inconceivable to even think
of giving equal representation.
• In case of equal representation, small states would hold back important laws or constitutional
amendment bills.
• Equality of representation as a principle was rejected by earlier commissions as also the Nehru
Committee Report, way back in 1928.
• Perhaps, the Punchhi Commission is the only commission which has shown some kind of bias
towards experimenting equality of representation for states in Rajya Sabha.
 • Another critique of Rajya Sabha has been on its role as revisory chamber:
o The unsatisfactory role of Rajya Sabha as a revisory chamber is evident from the fact that there
have been only three occasions of deadlock with the Lok Sabha, in the last 70 years.
• It has been criticized on its role as Guardian of the Constitution:
o It has played a role of preventing the constitution from becoming a plaything in the hands of the
ruling party, but only to a limited extent.
o The drastic changes like the 42nd constitutional amendment which is called as the 'mini
constitution' could not be stopped by the Rajya Sabha.
• Rajya Sabha has also invited the allegation that it has been a haven for capitalists, burnt out
politicians, retired bureaucrats, cronies:
o Burnt out politicians are those senior politicians who have lived out their career in the politics
<:::r: and whose political mileage is finished. Rajya Sabha seat is offered to such politicians as a last
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reward in their political career. Another example of a burnt out politician would be a person who has
�
lost in the Lok Sabha elections.
o Cronies are important people who are attached to the ministers and senior politicians, who the
Vl
politician naturally wants to accommodate in the Rajya Sabha.
< o One of the worst manifestations of people getting indiscriminately nominated to Rajya Sabha was
Vl the appointment of the former Chief Justice of India.
5
<:::r: • Rajya Sabha's critique as House of Elders:
Ill o Its reputation as house of elders is getting eroded as it somewhat has started to resemble the Lok
� Sabha with respect to the nature and tone of debate, at least in the last two decades.
� o The same indiscipline, chaos and ruckus on display in Lok Sabha, is seen in Rajya Sabha, which is
� now been called the 'pale shadow of the Lok Sabha'.
t-"' o In 20 13, the then Vice President Hamid Ansari, disgusted by the frequent disruptions, called Rajya
z
w
0 Sabha as the 'Federation of Anarchists'.
v; • Rajya Sabha downgrading as chamber of opposition:
w
0:: o The ruling party has started to see the Rajya Sabha as a chamber of opposition.
a.
w o Hence it is trying to pass ordinary bills as money bills, so that it can bypass the Rajya Sabha. For
u
5 e.g. The Aadhaar Bill, Insolvency Bill
 r=, U N I ON PARLIAM ENT (PART-8) - EVALUATION
li:"-1 OF TH E FU N CTION I N G OF PARLIAM ENT
Problems of Parliament: 0 00:00:14
• Inadequate sittings:
o The number of days for which the Parliament sits has
come down drastically. Average n u m be r of sitti ngs i n
o Some commissions have recommended codifying the a yea r (in days)
requirement of minimum number of sittings in a year, 150
minimum 120 days for Lok Sabha and 100 days for
100 71
Rajya Sabha. 67
o A major problem in this context is that the ruling party so
has complete discretion as to the timing and 0
duration of the session. If the government feels that 1950s 1990s Last 10
the session is going to be a stormy one where it will yea rs
1- have to face uncomfortable questions, then it tries to
z
w push the session, postpone or have a very small
� duration session.
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Suggestions:
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u. • Another suggestion can be the U K and USA model. In the UK and USA, the annual calendar of
0
session is preset and pre-announced and nobody has the right to alter it. The ruling party has very
l!)
z little discretion in deciding the timing and duration of the session.
z • Secondly, Parliament should be convened if there is a written notification from a certain
0
j:: percentage of MPs (25 or 30%)
u
z
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u. • Disruption of Parliament:
w
J: o For PM Nehru, the Parliament was a temple of democracy and he gave adequate space to the
1-
u. opposition. He was also the most comfortable when controversial questions were asked. He used
0
z to come to the rescue of his own ministers in the Parliament. He also used to value the opposition as
0 well. During those times, intellectual debates used to take place in the Parliament with minimum
disruptions.
::::>
...I o However, this trend changed with subsequent Prime Ministers largely beginning with Indira
w Gandhi's Prime Ministership. Parliament was something at best to be endured or at worst to be
curtailed. Ruling parties after PM Nehru have used their brute majorities sometimes to suppress
the voice of opposition, leaving nothing to the opposition but to use unparliamentary methods
like disrupting the Parliament, storming the well of the house, protesting, slogan shouting,
walking out, etc. As a result, many sessions got washed out.
1- o The 1 5th Lok Sabha during the term of U PA-11 was the most disrupted in the history of the
z
w
� Parliament.
<{ ► Only 179 bills could be passed. (least ever among those Lok Sabhas which completed their five
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c::: year term)
� ► 128 bills were either pending or they lapsed. (maximum ever)
z ► 400/o of the time wasted.
Q
z ► Several bills passed a after discussion of 20 minutes or less.
::::>
 ► Only 10% of the questions were answered in the Lok Sabha.
• Opposition's allegations:
o They have no role in deciding the agenda of the house
o They have no role in deciding rules under which discussions should be held. (Rule 184, Rule 193,
Adjournment Motions)
Suggestions:
• Adopting House of Commons convention, which mandates that in any given year there should be
a certain minimum day of Parliamentary sittings which should be fixed and on those days the
opposition should decide the agenda. In the House of Commons every year, 20 such days are
marked.
• Secondly, discussion should be held under a rule if a significant minority in the house so wants.
• Ultimately, every society gets the leadership it deserves. If the citizens want the Parliament to behave
properly and work in public interest, then the citizens themselves have to be careful with respect to z
1-

LU
the kind of MPs they are sending to the Parliament to represent them. �
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• Ageing Parliament:
�
o In the 1st Lok Sabha, there was only one MP above 70 years of age and none above 75. LL
0
o In the 16th Lok Sabha, there were 46 MPs above the age of 70 years and 15 MPs above the age of C)
75 years. z
o The percentage of young MPs (25 to 40 years of age) was 26% in the 1st Lok Sabha and just 12%
z
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th
in the 17 Lok Sabha.
o Also, there is no genuine representation of the youth, as most of the young MPs come from z
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established political families. LL
LU
• Criminalization of politics: J:
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o In the 16th Lok Sabha, 34% of the MPs had pending criminal cases against them. LL
0
o In the 17th Lok Sabha, 233/543 have pending criminal cases, and 2 1 % face heinous criminal z
charges where the minimum punishment is 5 years or more. 0
o The criminalization of parliament goes against the dictum "Lawbreakers cannot be lawmakers".
::::,
o Lot of reforms to address this issue have been implemented especially under the directions of the ...I

Supreme Court, where in the recent past it has ordered the setting up of special courts for disposing
of such cases.
• Inadequate women's representation:
o Women, who constitute around 50% of the total population, formed only 10% of the MPs in the
15th Lok Sabha. It took 60 years since independence for the women representation in Parliament to
reach 10%. In the 16th and 17th Lok Sabha, women representation was 1 1 % and 14% z
1-

respectively. LU
�
o Moreover, most of the women MPs come from established political families. (Bahu- Beti- Biwi <::i
Brigade) Many other women have risen from student politics and quite a few of them are upper a:::
class professionals, mainly lawyers. �
z
0
z
::::,
 Implications:
o Ideally those women who belong to the women's rights movements, social rights groups working
for the upliftment of women, securing dignity and equality for women, should represent women in
the Parliament. However this is not the case. Moen from such movements are very few in the
Parliament like Mrs. Brinda Karat.
o Less number of women MPs coming from mainstream women movements, tends to divide the
women's movements rather than unifying them. It happens as the women organizations outside
the Parliament take a very strident stand on a certain women issue or rights violations, while the
women MPs who are inside the Parliament take a stand which is in line with the political interests of
their political party.
0 00:29:02
Women's quota and constituent assembly:
1- • There has been a constant debate for a women's quota bill to increase their representation in the
z
w Parliament.
� • Such debate also took place in the Constituent Assembly.
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::i o Most of the women MPs opposed it for the simple reason that if they come into the political
c:::
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chambers on the basis of crutches or support of quotas, they would always be denied the support of
LL mainstream politicians, giving rise to a stigma against them and further perpetuating their unequal
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status. But they had the hope that as an independent country, the government would focus on
z socio-economic development of women with respect to status, job, health, education, etc. One
z the gaps in these areas are addressed, women would naturally be given a platform from where they
0
j:: could demand their share in the political power.
u
z o Secondly, they expected that the political parties would be sensitive enough to allocate a
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LL substantial number of tickets to women candidates as well. 0 00:37:43
w
:::c o Third expectation was that the political parties would ensure that there is no criminalization of
I­
LL politics, which would remove a prominent barrier for women to enter politics.
0
z • The women members in the constituent assembly rejected the demand for a quota based on the
0 assumption of these three demands being fulfilled. However, all these hopes have been belied.
• In the 1990s, this debate was revived. Quota bills were introduced in 1996, 1998, and 1999, which
::::>
...I could not be passed.
w
• Then in 2008 came the 108th Constitutional Amendment Bill, which was passed in the Rajya Sabha in
20 10, but with the dissolution of the 15th Lok Sabha, it lapsed.
• Provisions of 108th Constitutional Amendment Bill:
o 1/3 rd seats will be reserved in both Lok Sabha and Legislative Assemblies.
o Quota within quota for SC/ST women. 1/3rd seats within the reserved component shall be
1- reserved for women who are SC/ST.
z
w
� o The seats will be allotted to constituencies by rotation. For e.g.: A state has 9 Lok Sabha
<( constituencies A, B,C, D, E, F,G,H, and I. As per 1/3rd quota, out of 9 seats, 3 will be reserved. In the first
::i
c::: election the seats in A, B and C constituency would be reserved for women. In the next election
� cycle D, E and F would be reserved. In the next election cycle G, H and I seats would be reserved and
z then back to A, B and C in the next cycle. This is known as implementing the quota policy through
0
z rotation.
::::>
 o The bill also said that this quota for women would continue only for a period of 15 years. By the
end of 15 years, women would be able to find their voice in the political process and may not require
the need of a quota.

Issues with the bill:

o It did not speak about quota in the upper house.
o It did not provide for review after the 15 years period.

• Implications:
o Local bodies experience shows that more women members at local level demand more
expenditure on issues carrying greater relevance to women like water supply, sewage,
sanitation from the Panchayat.
o Studies show that particularly in women headed Panchayats, the expenditure on these heads of
z
1-
water supply, sewage and sanitation, etc. have actually tended to be higher. LU
�
• Issues in extending quota to women:
<::i
o It would perpetuate unequal status of women.
a:::
o It gives rise to proxy candidates (Panchayat Patis i.e. even if the woman is the member, the meeting �
of the Panchayat is being attended by her male counterpart.) LL
0
o It would give rise to resistance to field women from general seats. C)
o It also restricts choice of voters; as the seat is reserved for a woman candidate, a popular male z
candidate who has done exceptional work in the constituency does not get a chance to contest and
z
0
thereby restricts choice of voters.
o It is a short term step and it ignores the real issues of socio-economic development, z
::::,
criminalization of politics, lack of inclusive growth, etc. LL
LU
o It also gives rise to compulsory unseating as the quota is based on rotation and hence the sitting J:
I­
MPs would put no effort in nurturing their constituencies. LL

• 0 00: 58:44 0
Other options: z
o Political parties should reserve at least 1/3rd tickets for women candidates. It would be easy as: 0
► There is no need for a constitutional amendment.
::::,
► Only the Representation of People's Act would need to be amended. ...I
► The Election Commission also has favored it. LU
o Issues:
► There is no guarantee of a minimum number of women MPs entering the legislative
chambers.
► Parties may allocate seats where they have no chance of winning, just to fulfill the 1/3rd
requirement for women candidates. z
1-

o Dual member constituencies: LU

�
► It means that 1/3rd of the total constituencies would elect one male and one female candidate. <::i
o Issues: a:::
► It would require a major constitutional amendment, which seems more difficult than �
implementing the quota system. z
0
► Women members may be reduced to nothing more than sidekicks and second class z
::::,
 representatives because there is high probability that popular male candidates would field a
woman candidate from their own families. (Beti-Bahu- Biwi Brigade)
• Global position: 0 0 1:07:28
o In national level parliaments, there are 25% women parliamentarians.
o Sweden-46%
o Rwanda-61 o/o
o Nepal-33% (there is quota provision in Nepal)
o Cuba-53%
o However in India, the political parties do not even honor their commitments as per party
constitutions. Hence, implementing quotas at the national level seems a distant dream.
• Conclusion: 0 0 1 : 1 1:06
o Provision should be made for 1/3rd quota for adhoc period followed by review.
1- o Focus on long term aspects of women empowerment like socio-economic development, inclusive
z
w growth, checking criminalization, etc.
�
<(
::i
c:::
Article 106: Salaries and allowances of members 0 0 1 : 12:55
• Members of either House of Parliament shall be entitled to receive such salaries and allowances as may
�
LL from time to time be determined by Parliament by law and, until provision in that in that respect is so
0
l!)
made, allowances at such rates and upon such conditions as were immediately before the
z commencement of this Constitution applicable in the case of members of the Constituent Assembly of
z the Dominion of India Legislative Procedure.
0
j::
u
z Note:
::::>
LL • Parliamentarians and state legislators are the only people who decide their own salary.
w
:::c • The law that determines salaries and allowances is the Salaries and Allowances of Members of
I­
LL Parliament Act, 1954. This law also creates the joint committee on salary and allowances.
0 • Corresponding article for the state legislatures is Article 195.
z
0 • There is also a constant debate on cutting the salaries of MPs if and when the Parliament session is
washed out due to disruptions; there is wastage of productive parliamentary time, etc.
::::>
...I • It is further argued that much like employment in the private sector, if the employee cannot perform up
w to the expectations of the employer, he/she has to face a salary cut.
• However it must be understood that relation ship between an employee and employer is of
'contractual' nature, which is not the case for a member of parliament representing a constituency and
its voters.
• Thus, such a kind of salary cut for the MPs is unworkable.
1-
z
w • Are MPs paid enough? 0 0 1:22:00
�
<( o After the 2018 amendment to the Salaries and Allowances of Members of Parliament Act, 1954,
::i
c::: the basic pay of a Member of Parliament is Rs. 1 lakh/month. Over and above that they also get
� Rs.70,000 as constituency allowance, Rs.60,000 as office allowance (of which Rs.20,000 is for
z stationary & other items and Rs.40,000 for hiring a private secretary). Apart from this, the MPs
0
z also get a daily allowance of Rs.2000/day for attending the session of the Parliament.
::::>
 o If we compare the salaries of IndianMPs with that ofMPs in developed countries, the IndianMPs are
paid less. (for e.g. Legislators in the US get paid around Rs. 1 crores/year and another $4
million/year for hiring adequate staff and experts) Other allowances like the daily allowance just
to attend the Parliament can be done away with, as they are already being paid for doing their job.
o In this context, the basis of fixing the salaries ofMPs should be the following principles:
► The salary should not be so high that it becomes the principal attraction for the job.
► The salary should not be so low that suitable candidates stay away.
► Moreover, on the lines of an independent pay commission for the civil servants, there should be
an independent pay commission for the MPs as well.

Do you know?
Th e 2018 a mend ment a lso
provided that the salaries 1-
would be reviewed every 5 z
w
�
years since 2023 on the basis <t:
of cost inflation index. :::::i
a:::
�
o In UK, there is an Independent Parliamentary Standards Authority which regularly reviews and LL
0
increases the salaries ofMPs in line with the average salary in the public sector. C)
o In 2015, the Aam Aadmi Party government in Delhi became the first assembly in India to appoint z
an independent commission of retired high court judges to decide salaries of Delhi MLAs.
z
0
i'.=
u
Parliament as a forum for thought leadership: 0 0 1 : 3 5:20 z
::::,
• The bills coming from the executive should be subject to a lot of intellectual analysis, academic depth, LL
w
scientific and rational perspective, etc. from the Parliament. J:
I­
• The annual budget for running the Parliament is around Rs. 1, 100 crores. The same expenditure for LL
0
the US Congress is $5. 12 billion (i.e. more than Rs.36,000 crores). Even in Japan the expenditure for z
running the Parliament is $1.7 billion (i.e. close to Rs.9,000 crores). 0
• Thus the Indian Parliament needs to be given much more resources so as to subject issues to more
::::,
rational and effective debate, thereby emerging as a forum of thought leadership. ...I

• The Library, Reference, Research, Documentation and Information Service (LARRDIS) is a service
which helps the parliamentarians on getting information on key issues, etc. In 20 17, the total number
of staffers in LARRDIS was just 231, to serve the whole Parliament.
• In this context, the government must face the bitterest of criticism, yet pay the legislators adequately
and also finance parliamentary operations adequately.
1-
0 0 1 :42:40 z
w
Declining levels of morality: �
• Cash for Query Scam <t:
:::::i
• MP LADS Scam a:::
• Cash for Vote Seam �
z
Inadequate representation in Parliament: 0 0 1:45:05 z
::::,
 • In 197 1 population was 54 crores, represented by 543 MPs.
• In 2011, population was 121 crores, still represented by 543 MPs.
• In 2026, the population will be 140 crores, still represented by 543 MPs i.e. roughly 1 MP representing
25 lakh people.
• In contrast, in the UK having a population of 6.5 crores, it is represented by 650 MPs in the House of
Commons.
• Consequence:
o 1 MP representing 25 lakh population diminishes the essence of representation.
o It also violates the principle of equal or uniform representation, as different constituencies show
varying increases in population rise. For e.g. In Malkajgiri constituency of Telangana, the MP
represents 30 lakh people, whereas in Lakshadweep constituency, the MP represents 49,000
people.
1- • Issues in increasing the number of seats in the parliament:
z
w o Managing a bigger house is going to be more difficult especially for the presiding officer.
� o Less adequate opportunities to speak and participate in parliament proceedings as the number of
<(
::i MPs increase.
c:::
o It would result in more expense on elections.
�
LL o Need to address the concerns of Southern states with respect to seat allocation vis-a-vis the
0
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Northern states based on population difference.
z o Hence, a simple increase in the number of seats would be insufficient. There is a need for internal i.e.
z intra-state delimitation among constituencies to ensure equal representation.
0
j:: •
u This issue is going to come up again in the future as 2026 is not far away. As it comes up in the future,
z
::::>
LL
many new, innovative and creative proposals would also come up.
0 0 1 : 55:30
w
:::c Problem of instability in government:
I­
LL • One of the principal objectives of the Parliament is to produce a stable government. India had relatively
0
z stable governments till 1 989, but the scenario changed since then.
0 • Since 1989, the problem of instability has come up. In the period from 1989 to 1999, Lok Sabha
elections took place in 1989, 1991, 1996, 1998 and 1999. In a span of 10 years, there have been 5
::::>
...I Lok Sabha elections, instead of just 3. Hence, instability in governments has been seen in Post­
w Congress polity, characterized by shaky and unstable coalitions.
• Post-congress polity:
st
o 1 decade-saw the emergence of unstable coalitions
nd
o 2 decade ( 1999 to 2014) - saw the emergence of bipolar coalition polity i.e. two poles emerged in
Indian political scenario, one of the BJ P and the other of the Congress. This phase was marked by
1-
z
w
stable coalitions formed around either the BJ P or the Congress, which were able to give full five year
governments.
� rd
<( o 3 decade (since 20 14) -reemergence of majority government.
::i
c::: • In 2024, India might again face the specter of unstable coalitions again.
� • Addressing instability:
z o Changes in Rule 198:
0
z ► Rule 198 talks about no confidence motion in the Lok Sabha. A change can be incorporated
::::>
 wherein a no confidence motion is allowed only once a year instead of once every session. This
would provide some stability to coalition governments.
o Constructive vote of no confidence:
► Passing a vote of no confidence without an alternate government is a destructive vote of no
confidence.
► A constructive vote, instead, proposes an alternative government to replace the dethroned
government.
► Such a constructive vote is allowed in the German Parliament as per Article 67 of Basic Law of
Germany. It mandates that the admissibility of a no confidence motion is dependent on whether
it is accompanied by a proposal for alternative government or not, if not, then the motion is
inadmissible.
o Coalition partners under Schedule X:
► At least the pre-election coalitions should be brought under the Anti-defection law.
z
1-
0 02:02:42 LU
�
Suggested reforms to improve the functioning of the Parliament:
• Need to build a better image for Parliament:
<::i
a:::
o Electoral reforms �
o Check criminalization of politics LL
0
o Punish unruly behavior (all such behavior should be referred to the Ethics committee) C)
o The ruling party should also give adequate space to opposition MPs z
• Reform the parliamentary committee system. z
0
• Increase the number of sittings.
0 02:07:45 z
::::,
Leaders and Chief Whips of Recognized groups and Parties in Parliament Act, 1998: LL
LU
• It talks about some facilities to be given to the leaders and chief whips of political parties and groups. J:
I­
• Recognized group: In Rajya Sabha, the strength of the party should be at least 15 and not more than LL
0
24; in the Lok Sabha it should be at least 30 and not more than 54. z
• Recognized party: The term used in this context is not the same as used by the Election Commission 0
while recognizing parties for elections. In this context, the term recognized party means a party having
::::,
25 or more seats in the Rajya Sabha and 55 or more seats in the Lok Sabha. ...I

Parliament Recognized Group Recognized Party

Rajya Sabha 15 :5 24 25 or more

Lok Sabha 30 :5 54 55 or more

z
1-

LU
�
<::i
a:::
�
z
0
z
::::,
 r=, U N I ON PARLIAM ENT (PART-9) - PARLIAM ENTARY
� CO NTRO L, COALITION GOVERN M ENTS ETC.

Executive - Parliament Relationship:

Functions of Parliament: 0 00:00:28
• Legislation on bills, laws, etc.
• To provide a government:
o The council of ministers is drawn from the parliament in a parliamentary system of government.
• Hold the government accountable:
o It does so with various kinds of tools available.
o It also ensures financial control over the government as rightly said, " Parliament is the custodian of
public finance"
o It has to ensure that taxpayers' money is not embezzled; there is no over-taxation, etc.
�
(/) • Parliament is also a unit of national unity:
1-
z
w
o As it consists of MPs from all parts of the country.
� o It is like a microcosm of the nation. A Microcosm is when a larger phenomenon is represented on a
z
a:: smaller scale.
w
• Representative function:
o It serves as a link between the people and the government.
z
0 • Parliament is also an organ of information:
j::
:::i o It can seek information from the government by asking pinpointed questions.
o If the government fails to provide authentic information, then it may have to face privilege motions,
u censure, etc.
..1
0 o The information received is more authentic and reliable than that received by common citizens
a::
1-
z under the RTI Act.
0
u • Parliament also performs quasi-judicial functions:
� o These functions are usually in connection with various functionaries like the President, Supreme
� Court and high court judges, CAG, etc.
z
w
� 0 00:07:28
<( Need for Parliamentary control:
:::i
a:: • Direct democracy is not possible:
� o Direct democracy is where people who elect their representatives are in a position to directly hold
them accountable. For e.g. At the local level, the Gram Sabha can directly question their elected
representatives in the Gram Panchayat. However, as the size of population is too large at the
national level, direct democracy is not possible.
1- • Check government's extravagance, misuse of public funds, over taxation of people.
z
w
�
<( • Check brazen majoritarianism:
:::i
a:: o The executive many times may use its majority to push through their agenda unmindful of the
� opinion of the opposition.
z
0 o Majoritarianism also means that the ruling party making policies favoring a certain specific group
z of population which largely has voted for it, neglecting the needs of other sections.
::)
 • Sensitize the government:
o The parliament can sensitize the government on public issues and public concerns which have
escaped the attention of the government, whether deliberately or intentionally.
o After such sensitization by the parliament, public pressure is built on the government.
• To ensure enactment of sound laws:
o It helps to enact sound laws and not draconian laws like Sedition law (section 124A of IPC), Sec
377, Unlawful Activities Prevention Act, National Security Act, Armed Forces Special Powers Act
(AFSPA) etc.

Tools of Parliamentary control: 0 00: 15:32

LU
• Question hour
• Zero hour z
LU
• President's speech: �
z
o As it talks about the agenda of the year of the government, it is subject to discussion 0::
LU
• Debates and discussions:
o Including motions, resolutions, etc.
z
• Budgetary process: 0
i'.=
o Not a single penny can be spent from the consolidated fund of India without parliamentary :::i
approval.
o The parliament through the Public Accounts Committee scrutinizes the reports of the CAG, which ...i
has audited the government departments. 0
0::
t­
• Parliamentary committees: z
0
o It is an institutionalized method of parliamentary control. u
�
Inadequacies of Parliamentary control: 0 00: 19:25 �
z
• Increasing technicality of government: LU
�
o Parliament being a body of laymen, innocent of technicalities, it becomes difficult to exercise control <t'.
:::i
over technical functions of the government. 0::
• Increasing delegated legislation and inadequate parliamentary oversight: �
o Due to increasing technicalities, parliament passes the laws in broad skeletal form and rules, bye­
laws, regulations, etc. within the law are largely left to the executive which has the necessary
expertise.
o Even when the law is sent to parliamentary committees for oversight, they are overburdened and t­
z
lack the necessary expertise. LU
�
• Problems of question hour: <t'.
:::i
o Discussed in the question hour lecture. 0::
• Problems in working of parliamentary committees: �
z
o Discussed in the parliamentary committees lecture. 0
• Declining quality of debates: z
::,
 o The quality of debate also ensures that the government is awake to the problems that it is creating,
the issues it has failed to notice, its acts of omissions and commissions.
o But parliamentary debates are either not allowed to take place or are of inferior quality.
o The anti-defection law also is a reason for declining quality of debates.
Refer lecture on anti-defection law for other reasons for decline in the quality of debates.
• Fragmented opposition:
o The control exercised by a fragmented opposition is far less than that exercised by a united one.
• Inadequate number of sittings.
• Government majority and leadership shifted with executive:
o The leadership in the lawmaking function has been gradually shifting from the Parliament towards
�
(/) the executive.
1-
z
w
o Hence, it is not a parliamentary government but a cabinet government.
� o Moreover, a government with a huge majority gives less scope for the Parliament to question it and
z
a:: hold it accountable.
w
o It is said that even when the executive is the creation of the parliament, the 'creation dominates the
creator'.
z
0 • Increasing resort to guillotine:
j::
:::i o It restricts the discussion of the parliament on certain undiscussed issues and directly puts them
to vote.
u
..1 o Due to increasing business of the parliament, if guillotine is not used at all, the functioning of the
0 executive and the parliament would come to a standstill.
a::
1-
z o However, it must be ensured that guillotine is not used frequently. A simple closure should be
0
u used as a norm and guillotine as an exception.
� • Frequent use of ordinance:
� o It bypasses the control of Parliament over the bills and laws.
z
w o While regularizing it as well, the government tries to bulldoze the bill through the Parliament by
�
<( virtue of its majority.
:::i
a::
� Contemporary trends in the working of the Parliament: 0 00:32:27

• Parliamentary committees:
o In the case of a government with a huge majority, it will automatically dominate parliamentary
committees by nominating members from the ruling party.
1- o But a healthy trend developed from 1989 to 2014 (9th Lok Sabha to 15th Lok Sabha) , that is the
z
w emergence of coalition governments. No single party had a clear majority and hence could not
�
<( dominate the proceedings. Similarly, no single party could have a majority in the committees as
:::i
a:: well. It can be said that with coalition governments at the centre, parliamentary committees started
� becoming more representative.
z
0 o Since 2014, there has been a revival of the past. A single party dominates the Parliament and
z hence dominates the parliamentary committees. The representativeness of parliamentary
::)
 committees has diminished since then.
• Private Member Bills:
o Only 14 private member bills have been passed in the history of the Indian parliament since
independence, the last being passed in 1970.
o In 20 1 5, DMK Member of Parliament Mr.T.N. Shiva introduced a Transgenders' Bill in the Rajya
Sabha and it was actually passed in the Rajya Sabha. It could not be passed in the Lok Sabha as by
that time the government came up with its own Transgenders' Bill.
As a recent trend, there has been an exponential rise in the number of private member bills
o
tabled or introduced in the parliament. For e.g. in the 15th Lok Sabha there were 372 such bills
introduced, of which just 1 1 reached the stage of discussion. In the 16th Lok Sabha, close to 900
LU
private member bills were introduced, but only 1 0 of them were discussed.
o The rise seen in private member bills being introduced is a result of MPs trying to make a political z
LU
statement and possibly embarrass the government. �
z
• Adverse rulings from the chair: 0::
LU
o Since the rise of coalition governments, the ruling party also became vulnerable to adverse rulings
speaker Rabi Ray disqualified 5 cabinet
from the presiding officer. For e.g. in 1990, the then
z
ministers of the Chandrashekhar government under the anti-defection law. 0
i'.=
o Speakers like P.A. Sangma would routinely caution the government and even ruled against the :::i
ruling party, Meira Kumar as the speaker would come to the rescue of the opposition members
u
whenMinisters would try to evade uncomfortable questions. ...i
o The trend of adverse rulings from the chair towards the rulingparty has seen reversal with the 0
0::
t­
emergence of single party majority government since 20 14. z
• Meetings behind the chair: 0
u
o Behind the chair means meetings in the chamber of the presiding officer. �
o When parliament is disrupted routinely and is not allowed to function, then the speaker has to call �
z
meetings of all leaders to resolve the differences. LU
�
o Hence more disruptions, more unruly behavior, more walkouts, lead to more meetings in the <t'.
:::i
chamber of the presiding officer. 0::
• Increasing number of political parties represented in the Parliament: �
th
o In the 17 Lok Sabha, no less than 37 political parties have representation.
o With so many political parties, consensus building becomes a nightmarish exercise.
o When there is difficulty to build consensus, there is always the temptation to use the ordinance
route. t­
z
LU
�
Sovereignty of Parliament: 0 00:48:57 <t'.
:::i
• It means a parliament which is totally sovereign in the sense that it is uncontrolled, unhindered, and 0::
unstoppable in passing any kind of laws. It has unlimited powers of legislation and whatever laws it �
z
passes, the judiciary cannot strike it down. 0
• UK is considered to have a traditional sovereign parliament. The UK Supreme Court does have the z
::,
 power to strike down even the basic laws passed by the UK parliament.
• Even if on paper it exists, parliamentary sovereignty in the UK is a myth. It is a myth because checks
and balances in the form of conventions and public opinion exist over the British Parliament. It puts a
check on the parliament intending to pass anti-people or draconian laws.
• India is a country which practices constitutional sovereignty. No entity whether at the national or
state level is superior to the constitution.
• In India, there are legal limitations on the powers of the Parliament such as:
o Federal structure:
► Parliament as a matter of routine has no powers to make laws on state list subjects. It can do so
only under special circumstances.
�
(/) o Written constitution:
1-
z
w
► Any law made is subject to the test of constitutionality.
� o Judicial Review:
z
a:: ► The judiciary can declare a law passed as null and void if it is seen as a violation of the
w
constitution.
o Fundamental rights:
z
0 ► Article 13(2) says that any law that violates any of the fundamental rights shall be null and void.
j::
:::i o Basic structure of the constitution:
► It circumscribes the amending power of the parliament.
u
..1
0
a:: Impact of Prorogation and Dissolution of Lok Sabha on parliamentary business: 0 00:54:13
1-
z • Prorogation: No impact on parliamentary business
0 • Dissolution of Lok Sabha:
u
� o All business pending before the Lok Sabha lapses, except the assurances which are pending before
� the Committee on Government Assurances.
z
w o Bill passed by Lok Sabha, but pending in the Rajya Sabha lapses.
�
<( o Bills not passed by Lok Sabha, but pending in the Rajya Sabha do not lapse.
:::i
a:: o Passed bills by both houses, pending President's assent do not lapse.
� o Suspensive veto bills do not lapse i.e. bills referred back to the Parliament for reconsideration by the
President do not lapse.
o Dead locked bills do not lapse, if the meeting for a joint sitting has been called before the dissolution.

1-
z
Types of majority: 0 00:58:20
w • Simple majority:
�
<( o It means (50%+1) of present and voting. Most of the legislative business in the parliament, money
:::i
a:: bills, etc. require a simple majority.
� • Absolute majority:
z
0 o It is the majority of total strength i.e. (50%+1) of the total strength of the House. It is the majority
z required to form the government.
::)
 • Effective majority:
o It is the majority of total strength minus the vacancies i.e. majority of the then members. This is
the majority that is required to remove the Vice President in Rajya Sabha and the Speaker in Lok
Sabha.
• Special majority:
rd
o Bill to be passed by 2/3 of the present & voting and majority of the house. Constitution
Amendment Bills, removal of judges, CAG, etc. require this special majority.
rd
o Bill to be passed by 2/3 of the present & voting. It is applicable to Article 312 (creation of All India
Service) and Article 249 (Rajya Sabha to authorize the Parliament to make law on subject in the
state list)
rd LU
o Bill to be passed by 2/3 majority of the total membership of the House. It is required during the
impeachment of the President. z
LU
�
0 01:03:36 z
Coalition governments: 0::
LU
th th
• From the 9 Lok Sabha to the 15 Lok Sabha, was the period of coalition governments. In a coalition
government, no party has a clear majority and a collection of political parties amongst themselves who
z
claim a majority, form the government. 0
i'.=
• Merits: :::i
o It is more representative:
u
► The government is running not on the agenda of just one political party, but with the collective ...i
agenda of various political parties coming together. 0
0::
t­
o It strengthens federalism: z
0
► As most of the parties which become part of the government are regional political parties. The u
government gives due respect to regional parties and usually does not cross over into the �
domain of the states. For e.g. it would have been difficult to enact farm bills in case it was a �
z
coalition government. LU
�
o Greater continuity of policies: <t'.
:::i
► As there is greater possibility that many of the partners in the previous coalition would be 0::
partners in the next coalition government as well. �
o Centrist politics:
► It means being at the centre of the spectrum, neither leaning towards one extreme of leftist
politics nor the other extreme of rightist politics. While running a coalition government, all
partners have to get rid of their dogmatic and rigid lineation. Centrist politics is the best for a t­
z
multiethnic and multilingual country like India. LU
�
• Demerits of coalition: <t'.
:::i
o Less cohesion: 0::
► As each political party tries to fulfill its own political interests. Moreover, the loyalty of a minister �
z
in a coalition government may not be entirely towards the government or the Prime Minister, but 0
towards his own political party. z
::,
 o Slow decision making:
► lncrementalism creeps into the decision making process. Taking radical decisions is almost
impossible due to consultations with all coalition partners. For e.g. establishment of a weak
Lokpal during the term of UPA- 1 1 .
o Strengthens positions of President and Governor:
► In the case of coalition governments especially at the state level, many of the governors are
alleged to play political games while there is no single party majority, which often leads to
upheaval in the government.
o Instability:
► It is never known when a coalition government will collapse.
�
(/) o Undermines the position of the CEO:
1-
z
w
► CEO means the Prime Minister or the Chief Minister. They are sometimes not even allowed to
� take action against a minister of the other party in a coalition, even though the minister is guilty of
z
a:: corruption.
w
• Although there are problems in coalition governments, but on the whole they encourage centrist
politics, they at least do not create such upheavals which can destabilize the community as a whole.
z
0
j::
:::i Making coalition governments work:
0 0 1 : 2 5:00
• Coalition Dharma:
u
..1 o It means that no partner should make impossible demands.
0 • Ideological unions:
a::
1-
z o They are convergences between political parties which are significantly matched in terms of
0
u ideological preferences. For e.g. the Left front.
� • Pre-election coalitions:
� o As they have a common political manifesto and common promises made to the people before
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a:: • Coalitions under Schedule X:
� o At least the pre-election coalitions should be brought under schedule X because if they have fought
the elections on a common platform and after elections they abandon the coalition; all the members
should be disqualified.
• Common media policy:
1- o As differences in a coalition should remain inside the coalition.
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a:: • Toned down election campaign:
� o Name calling, making baseless accusations, using indecorous words should be avoided, as it leads
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Presidential form vs. parliamentary form of government: 0 01:35:58

Parliamentary form Presidential form

• Disti nction between Dej u re a n d Defacto head • N o such distinction

• Executive d rawn from legisl atu re • No such p rovision

• Lim ited field of choice i n appointing m i n isters- l i m ited • U n l i m ited choice

with i n the Parlia ment

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Advantages of parliamentary form of government: 0
• Less possibility of deadlocks between executive and legislature: i'.=
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• Promotes participatory decision making:
o The govern ment has to com p rom ise and barg a i n with the op position as wel l i n a parliamenta ry
form . As there is a p l u ra l executive (council of m i n i sters) a n d not a single executive (president) i n the
parliamenta ry system , there is more scope for participation. t­
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Issues in parliamentary system: 0 01:52:41 0::
• Instability �
• Less cohesion
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decisions.
• Tends to throw up either a too strong or a too weak Prime Ministers:
o Too strong Prime Ministers like Nehru, Indira Gandhi, Rajiv Gandhi, Narendra Modi or too weak
coalition Prime ministers like Dr. Manmohan Singh.
• Encourages opportunistic defections leading to fragmentation of polity:
o As parliamentary government is a game of numbers.
• Vulnerability to extra constitutional influence:
o Dual power centres during the Manmohan Singh regime, the National Advisory Committee during
the UPA regime headed by Sonia Gandhi, etc.
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� • Even the worst system can be made to work if you have the right people working. Even the best system
can be brought to a complete nadir, if the people running it are unscrupulous individuals.
• Hence, Alexander Pope made the statement, " For forms of government let fools contest, what is
best administered is best."
1- • So it is not the system that is workable or not, it is the people running the system that make it workable.
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Previous Year's Questions
Q. The 'Powe.rs. Privileges and Immunities o+ Parliament and its Members' as envisaged in Article 105
o+ the Constitution le.ave room for a large number o+ un-codifie.d and un-e.nume.rate.d privileges to
continue.. Assess the reasons for the absence o+ le.gal codification o+ the 'parliamentary
privileges. How can this problem be addressed ? (201lt)

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Previous Year's Questions
Q. Rajya Sabha has be.en transformed from a 'use.less ste.pne.y tyre' to the most useful
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 � THE CASE FOR A PRESIDENTIAL
=.iii SYSTEM IN INDIA AND MPLADS
• When the National Commission to review the working of the Constitution (NCRWC) was set up
under the former Chief Justice Mr.Venkatchaliah in 2000, there was a rumor that possibly the
government was expecting the commission to recommend switching from parliamentary to a
presidential system of government. However, it did not happen.
• In the recent past, this debate has emerged again, as the switch from parliamentary to presidential
system has been endorsed by prominent leaders like Shashi Tharoor. He made a strong case for the
presidential system in India.

Case for Presidential system in I ndia:

• Traditions and conventions of parliamentary system (Westminster form) have not evolved i n India:
o As there are no clearly defined political parties having coherent policies and vision in India.
o The ideologies of political parties in India are very fluid, as they keep changing based on political
circumstances.
o In India, a political party is merely a label of convenience which any candidate adopts or discards
to serve his political interest better.
• Absence of real party system in India:
o In India, people vote for the executive and not the legislators.
o As a result, the parliament loses its independent identity.
• Candidates also contest to become members of the executive, not the legislature. This is not the
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0 case in the presidential system of the USA. When candidates contest to become part of the executive it
generally has following consequences:
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<( o The Prime Minister cannot appoint a cabinet of outstanding competence, as he has to appoint the
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relatively much more free hand to appoint anybody who is of outstanding competence.
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tii blindly vote for any bill coming from the executive. This makes the Parliament to lose its
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work. Then the problem is with the people and not with the system.
• In this context, Alexander Pope's statement that " For Forms of Government let fools contest;
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 • Even though both the parliamentary and presidential system can degenerate into dictatorships, there
is less likelihood of this happening in the parliamentary system as opposed to the presidential system.

Member of Parliament Loca l Area Development Scheme (M PLADS) : 0 00:20:20

• It was first implemented under the Narasimha Rao government in 1993.
• Under the scheme, the MPs are given some funds on a yearly basis to finance some local
development works as people expect local developmental works from them.
• The scheme is implemented by the Ministry of Statistics and Programme Implementation.
• Every MP is allocated Rs.5 crores per year. This amount is placed with the district authority, the MP
would identify the projects for which the funds would be needed and then the District collector would
release the funds for implementation of that project.
• The scheme was suspended for the years 2020-21 and 2021-22 as the government required more
money for management of COV ID-19.
o A Lok Sabha MP can spend the amount in any district of his constituency only.
o A Rajya Sabha MP can spend the amount in any district of the state which he represents in Rajya
Sabha.
o A nominated MP can spend the amount in any district or districts from any one state in the
country.
• The expected deployment of funds is on development projects with a view to create some durable
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community assets with focus on national priorities like drinking water, sanitation, etc. 0
• The district authority can allocate the project to:
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projects under MPLADS.
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o For construction or maintenance of religious buildings
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o Construction of assets which are to be named after some person.
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 o The unspent balance does not go back into the consolidated fund of India after the end of each
year; it just gets carried forward to the next year.
o Thus, the MPs try to accumulate the amount year on year and tend to spend it in the last two years
before the next election.
o The Election Commission has thus suggested making the fund lapsable every year.

Note: Many government departments who have not been able to spend the allotted money in the financial
year, all of a sudden start to spend the balance amount by indiscriminately sanctioning projects in the month
of March which is the last month of the financial year because if the money remains unspent, it will lapse into
the consolidated fund of India. This rush towards the end of the financial year to spend the balance amount is
called as 'March Rush'.

• Poor maintenance of assets created:

o As maintenance of assets is an administrative expenditure, the scheme only allows for asset
creation.
• Poor coordination among MPs:
o There may be situations where a Lok Sabha MP, a Rajya Sabha MP and a nominated MP end up
spending a disproportionate amount of funds on the same constituency.
o This results in unequal distribution of funds across districts.
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o After the end of five years, the amount of money not spent has been increasing.
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� o For all the MPs put together, in the 14th Lok Sabha, an amount of Rs. 176 crores was not utilized. In
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<( amount of Rs. 1734 crores was not utilized.
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have recommended discontinuing the MPLADS scheme.
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STATE EXECUTIVE
- TH E GOVERNOR (PART- 1)
The Governor (Part- 1)
Article 153
• There shall be a Governor for each state:
Provided that noth i n g i n this a rticle s h a l l p revent the appointment of the same person as Governor for two or
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more states, this p rovision was not there i n the orig i n a l constitution. It was added by the 7 constitutional
Amendment Act' 1956.

Article 154: Executive Power of State

( 1 ) The executive power of the State s h a l l be vested i n the G overnor a n d s h a l l be exe rcised by h i m either
d i rectly or th rough officers subord i n ate to him i n accord a nce with this Constitution.
(2) N oth i n g i n this a rticle s h a l l-
Executive Powers a n a logous to
(a) be deemed to tra nsfer to the G overnor a ny fu n ctions conferred President:
by a ny existi ng law on a ny other a uthority; or • Articl e 1 54: Article53
(b) p reve nt Pa rl i a m e nt or the Leg i s l atu re of the State fro m • Articl e 1 6 1 : Article 7 2
conferri ng by law fu nctions on a ny a uthority su bord i n ate to the • Articl e 1 64: Article75
Governor. • Articl e 1 66: Article77
• Article 167: Article78
Article 155: Appointment of Governor
• The G overnor of a State s h a l l be a ppoi nted by the President by wa rra nt u nder his hand a n d sea l .

Article 156 : Term of office of Governor

( 1 ) The G overnor s h a l l hold office d u ri n g the pleasure of the President.
(2) The G overnor m ay, by writi ng u nder his hand addressed to the President, resign his office.
(3) S u bject to the foregoing provisions of this a rticle, a Governor s h a l l hold office for a term of five yea rs
from the d ate on which he enters u pon his office:
Provided that a G overnor s h a l l , notwithsta nding the expi ration of his term , conti n u e to hold office u ntil his
successor enters u pon his office.
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1- Article 158: Conditions of Governors' Office
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> ( 1 ) The G overnor s h a l l not be a member of either House of Parliament or of a House of the Legislature of
i= any State specified i n the Fi rst Sched u l e. And if a mem ber of either House of Pa rl i a ment or of a H ouse
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seat in that House on the date on which he enters upon his office as G overnor.
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(2) The Governor s h a l l not hold any other office of profit.
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� (3) The G overnor s h a l l be entitled without payment of rent to the use of his officia l residences a n d s h a l l be
 also entitled to such emoluments, allowances and privileges as may be determined by Parliament by
law (Governor's Emoluments Act. 1982) and until provision in that behalf is so made, such
emoluments, allowances and privileges as are specified in the Second Schedule.
(3A) Where the same person is appointed as Governor of two or more States, the emoluments and
allowances payable to the Governor shall be allocated among the States in such proportion as the
President may by order determine.
(4) The emoluments and allowances of the Governor shall not be diminished during his term of office.
The salary or emoluments could be decreased by amending the corresponding law by the parliament
but it will be applicable from the next Governor and not from the present Governor.

164. Other provisions as to Ministers. -

( 1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by
the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the
pleasure of the Governor:
Provided that in the States of [Chhattisgarh, Jharkhand] , Madhya Pradesh and Odisha, there shall be a
Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes
and backward classes or any other work.
( 1A) The total number ofMinisters, including the ChiefMinister, in the Council ofMinisters in a State shall
not exceed fifteen per cent of the total number of members of the Legislative Assembly of that
State:

Provided that the number ofMinisters, including the ChiefMinister in a State shall not be less than twelve:
Provided further that where the total number of Ministers including the Chief Minister in the Council of
Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003
exceeds the said fifteen per cent. or the number specified in the first provision, as the case may be, then the
total number ofMinisters in that State shall be brought in conformity with the provisions of this clause within
six months from such date as the President may by public notification appoint.
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( 1 8) A member of the Legislative Assembly of a State or either House of the Legislature of a State having z
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House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a 0
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Minister under clause ( 1) for duration of the period commencing from the date of his disqualification LU
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till the date on which the term of his office as such member would expire or where he contests any �
election to the Legislative Assembly of a State or either House of the Legislature of a State having
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Legislative Council, as the case may be, before the expiry of such period, till the date on which he is �
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(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
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(3) Before aMinister enters upon his office, the Governor shall administer to him the oaths of office and of �
 secrecy according to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the
State shall at the expiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to
time by law determine and, until the Legislature of the State so determines, shall be as specified in the
Second Schedule.

Article 166: Conduct of business of the Government of a State

(l)AII executive action of the Government of a State shall be expressed to be taken in the name of the
Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated
in such manner as may be specified in rules to be made by the Governor, and the validity of an order on
instruction which is so authenticated shall not be called in question on the ground that it is not an order
or instrument made or executed by the Governor.
(3)The Governor shall make rules for the more convenient transaction of the business of the Government
of the State, and for the allocation among Ministers of the said business in so far as it is not business
with respect to which the Governor is by or under this Constitution required to act in his discretion.

Article 167. Duties of Chief Minister as respects the furnishing of information to Governor, etc.
It shall be the duty of the Chief Minister of each State-
(a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the
administration of the affairs of the State and proposals for legislation.
(b) to furnish such information relating to the administration of the affairs of the State and proposals for
legislation as the Governor may call for; and
(c) if the Governor so requires, to 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.

a:: • The Governor can recommend the imposition of constitutional emergency in a state to the
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a:: powers as an agent of president.
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1- Legislative Powers
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Rebia case (2016) , The Supreme Court said that the power to summon the House is not solely vested
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in the Governor and should be exercised with aid and advice of the Council of Ministers and not at his
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• He gives his assent to legislation.
• He has Veto powers i.e., Absolute Veto, Suspensive Veto, Pocket Veto and Referential Veto (Article
200).
Referential Veto- The Governor can reserve the bill for the consideration of the President.
• He can send messages to the house.
• He can address the state legislature at the commencement of the first session after each general
election and the first session of each year.
• He nominates one-sixth of the members of the State Legislative Council.
• He lays the reports of the State Public Service Commission, State Finance Commission, State
Human Rights Commission, and Comptroller and Auditor-General relating to the accounts of the
state, before the state legislature.
• Article 213: He can promulgate ordinance when the State legislature is not in session.
• He decides on the question of disqualification of members of the State legislature in consultation
with the Election Commission.

Article 213 : Power of Governor to promulgate Ordinances during recess of Legislature.-(1) If at any
time, except when the Legislative Assembly of a State is in session, or where there is a Legislative
Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied
that circumstances exist which render it necessary for him to take immediate action, he may promulgate
such Ordinances as the circumstances appear to him to require:

Provided that the Governor shall not, without instructions from the President, promulgate any such
Ordinance if-
(a) a Bill containing the same provisions would under this Constitution have required the previous
sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the
consideration of the President; or
© an Act of the Legislature of the State containing the same provisions would under this Constitution 0::
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have been invalid unless, having been reserved for the consideration of the President, it had received the z
assent of the President. 0::
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(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the 0
Legislature of the State assented to by the Governor, but every such Ordinance- (!)
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(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the J:
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State, before both the Houses, and shall cease to operate at the expiration of six weeks from the
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reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is
passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of �
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(b) may be withdrawn at any time by the Governor.
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 Explanation.-Where the Houses of the Leg isl atu re of a State havi ng a Leg isl ative Council a re
s u m m oned to reassem b l e on d ifferent d ates, the period of six weeks s h a l l be reckoned from the later of
those d ates for the pu rposes of this cla use.
(3) If and so fa r as a n O rd i n a nce u nder this a rticle m a kes a ny provision which wou ld not be va lid if
enacted i n a n Act of the Leg isl atu re of the State assented to by the Governor, it s h a l l be void:
Provided that, for the pu rposes of the p rovisions of this Constitution relating to the effect of an Act of the
Leg isl atu re of a State which is rep u g n a nt to an Act of Parlia ment or an existi ng law with respect to a
m atter e n u merated i n the Concu rrent List, a n O rd i n ance pro m u l g ated u nder this a rticle i n p u rsua nce of
instructions from the President s h a l l be deemed to be an Act of the Leg islatu re of the State which has
been reserved for the consideration of the President a n d assented to by him.

254 . Inconsistency between laws made by Parliament and laws made by the Legislatures of
States.
( 1 ) If a ny p rovision of a law made by the Leg islatu re of a State is rep u g n a nt to a ny provision of a law
made by Parl i a ment which Parlia ment is com petent to enact, or to a ny provision of a n existi ng law
with respect to one of the matters enu merated i n the Concu rrent List, then, s u bject to the
provisions of clause (2) , the law made by Pa rliament, whether passed before or after the law made
by the Leg isl atu re of such State, or, as the case may be, the existi ng law, s h a l l preva i l a n d the law
made by the Leg isl atu re of the State shall, to the extent of the repugna ncy, be void.
(2) Where a law made by the Leg isl atu re of a State with respect to one of the m atters e n u merated i n
t h e Concu rrent List conta i n s a ny provision rep u g n a nt t o t h e provisions o f a n earlier l a w m a d e by
Pa rl i a ment or an existi ng law with respect to that matter, then, the law so made by the Leg isl atu re
of such State s h a l l , if it has been reserved for the consideration of the President a n d has received
his assent, preva i l in that State:
Provided that noth i n g i n this clause s h a l l p revent Pa rl i a ment from en acti ng at a ny ti me a ny law with
respect to the same m atter including a law adding to, amending, va ryi ng or repea l i n g the law so made
by the Leg islatu re of the State.

Financial Powers
a:: • Money b i l l s can be i ntroduced i n the state legislatu re o n ly with the prior consent of the Governor.
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state govern m e nt and loca l bodies.
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• Article 217 - He is consulted by the president while appointing the judges of the concerned state high
court.

Discretionary Powers of the Governor

Article 163 Council of Ministers to aid and advise Governor
• ( 1) There shall be a council of Ministers with the Chief Minister at the head to aid and advise the
Governor in the exercise of his functions, except in so far as he is by or under this constitution
required to exercise his functions or any of them in his discretion.
• (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by
or under this Constitution required to act in his discretion, the decision of the Governor in his discretion
shall be final, and the validity of anything done by the Governor shall not be called in question on the
ground that he ought or ought not to have acted in his discretion.
• (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall
not be inquired into in any court.

From the above article, it is clear that the constitutional position of the Governor differs from that of the
President. There is a possibility of the Governor acting at times in his discretion, no such possibility has
been envisaged for the President in the Constitution.

The Discretiona ry power of the I

Governor can be classified in two parts: 1
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Explicit Discretion:
Category A - The Governor is not required to consult the Council of Ministers: w
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• Article 239 Administration of Union territories
( 1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by
the President acting, to such extent as he thinks fit, through an administrator to be appointed by him
with such designation as he may specify
(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a
State as the administrator of an adjoining Union territory, and where a Governor is so appointed,
he shall exercise his functions as such administrator independently of his Council of Ministers.
 • Reservation of bill for the consideration of President. (Article 200)
• Governors of Schedule VI states (Assam, Meghalaya, Tripura and Mizoram) have the power to
determine the amount to be paid to the Autonomous District Council as a share of royalty coming from
licenses for mineral exploration.

Category 8- Special Responsibility (The Governor is required to consult Council of Ministers)

• Article 3 7 1 - Governor of Maharashtra and Gujarat having special responsibility for socio-economic
development for Vidarbha,Marathwada, and Saurashtra, Kutch region respectively.
• Article 3 7 1 A- The Governor of Nagaland has a special responsibility with respect to maintaining Law
and Order situation in the state.
• Article 3 7 1 C-Manipur- regarding the administration of the hill areas in the state.
• Article 3 7 1 F - Sikkim- for ensuring social and economic advancement of the different sections of the
population.
• Article 3 7 1 H- Arunachal Pradesh- With respect to law and order in the state.
• Article 3 7 1 J - Karnataka- Establishment of a development board for the six backward districts of the
Hyderabad-Karnataka region.
• Under the Andhra Pradesh reorganization Act 20 14, the joint Governor of Andhra and Telangana
was given special responsibility for law and order and allocation of government buildings confined
to the city of Hyderabad.

Implicit Discretion:
• Article 356- President, on receipt of an adverse report from the Governor of the state indicating
breakdown of machinery in the state can impose President rule.
• Article 167- seeking information from the Chief Minister with regard to the administrative and
legislative matters of the state.
• The governor appoints the Chief Minister when no party has a clear cut majority (Hung Assembly) in
the state legislative assembly.
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matter where both are claiming executive jurisdiction, then the governor has to wait for instructions
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Issues
• Mode of Appointment
Presently, the Governor of the state is nominated by the centre.
Though, In the Constituent Assembly debates, the following four methods of appointment of the
governor were discussed:
• Election of Governor by Legislative Assembly.
• Centre to appoint the Governor out of a panel of names prepared by Legislative Assembly.
• Direct Election for appointment of governor (the draft constitution provided for the direct election only)
• Nomination by the centre.

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 r::r:J STATE EXECUTIVE
� - THE GOVERNOR (PART-2)
The Governor (Part-2)
• Arguments against elected Governor
o Nominal head - Much like the President, the governor is a constitutional head (de-jure), with no
effective powers. The governor is supposed to act on the aid and advice of the council of ministers.
o Friction between the CM and Governor-If the Governor of the state is elected, it is likely to lead to
friction between the Chief Minister of the state and the Governor as both will be elected by the
citizens of the state. It may lead to constitutional conflicts between the two.
o Election contested on personal and not real issues - Bringing our manifesto/promises to the
people would be difficult as the governor is only a nominal head and not a real head of the state.
Even if a manifesto is released, it would be difficult to implement as he does not have any real power
to implement that.
o No central control - As the governor now serves as the elected representative of the centre,
through the governor, the centre has some control over the state. Also, given the background of
India's independence, there were separatist tendencies in a few of the states in those times. So, in
the constituent assembly, it was felt that there should be a central nominee at the state level
through which the centre can have some control over the states. It was envisaged as a tool to
prevent separatism.
o Second-rate person of the ruling party may get elected which may create a situation where the
Chief Minister is claiming superiority over the governor in terms of hierarchy.
• Arguments against nominated Governor
o Outsider - Generally, the Governor is an outsider due to which he is unaware of the culture, ethos,
language, etc. of the state, due to which he is unable to contribute much to the political affairs of the
state.
o Equal likelihood of friction - In the case of the nominated governor, who is generally the nominee of
the ruling party at the centre, cases of friction are frequent, where the ruling party is different from
that ruling in the centre. The Chief Ministers are mostly in conflict with the Governor which is
recently seen in the states of West Bengal, Goa, etc.
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o Violates the principle of Federalism - As the Center nominates the governor - the head of state
(which is an important position in a state), it violates the principle of Federalism.
0 o Raj Bhawan as Rehabilitation centre -Raj Bhawan is often used as a rehabilitation centre for the
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nominates the governor to the states.
w o Mass removals - It is often that whenever the party changes at the central level, the governor too is
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that ruling in the centre.
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local politics on the behest and instructions of the centre is seen in the case of the nominated
governor. The Governor try to destabilize and disrupt the state-level government by such moves.
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 Note:
As the d raft constitution provided for the elected governor, the constituent asse m b ly accepted the
Rajeshwar Prasad Amendment to the d raft constitution. This a mend ment provided for the nominated
governor which was accepted by the Constituent Assem bly.

Issues on the appointment of Governor (Contd. from the previous lecture)

• Consultation with Chief Minister before Appointment As the chief m i n ister has to work with the
governor, the chief m i n ister should be consu lted by the prime m i n i ster i n a ppoi nti ng the governor of
the concerned state.
But, ti l l 1967, the C h ief M i n ister was not consu lted but merely i nformed as there was the same pa rty
ru l i n g i n a l m ost a l l the states a n d the Center as wel l .

Recommendations of Sarkaria Commission

Sarkaria Commission a ppoi nted i n 1983, was the fi rst centra l govern ment com m ission on the centra l a n d
state relationsh i p, befo re g ivi ng its recommendations made s o m e observations as fol l ows:
• I n m ost cases, when the governor of the state was a p poi nted, the Chief M i n i ster was not consu lted .
Where the C h ief M i n ister was consu lted, was j ust a procedura l form a l ity a n d no effective co nsu ltation
took p l ace.
• There were a few cases where the Chief M i n i ster outrig htly rejected the centra l government nomi nee
for the governor i n his state. Yet, the same governor was appointed by the centre, without a ny debate
or discussion with the C h ief M i n ister, often b u l l dozi ng the a ppointment of the governor on the state.
• Someti mes, the G overnor was a p poi nted before the formation of the state government.
Recommendation: It recom mended to a mend Article 155 of the constitution to p rovide for effective
consu ltation with the chief m i n i ster before the governor is a p poi nted.

• Types of Persons Appointed

Most of the persons a p poi nted so fa r as the Governor of the states have been :
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o Politicians - M a i n ly, t h e governors have b e e n t h e pol iticians, a p poi nted from t h e ru l i n g pa rty, both
active a n d non-active as wel l . g_
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• Usually, the men from the ruling party have been appointed as the governor.
• Politicians who have lost elections have been appointed as governors.
• Politicians/men who have been known for highhandedness and open partisanship have also been
appointed as governors.

Some recommendations regarding the appointment of Governor:

• Administrative Reforms Commission (ARC) - 1: 1966
Avoid burnt out politicians - Politicians who have spent a long time in the service of the party
are burnt out politicians who should not be appointed as the governors of the state.
o Those who have spent a lifetime in the service of one party - The politicians who have
spent their lifetime into one party should not be appointed as the governor of the state. This is
because the loyalty of those men towards the party is so cemented and rigid, it is very difficult
to take unbiased decisions.
o Those who have lost elections - The politicians who have lost elections should also not be
appoi nted as the governor of the states.
o Men of doubtful integrity - The men of doubtful integrity should not be appointed as the
governor of the state. Men of doubtful integrity such as men of history-sheeter in the past,
having many allegations of corruption, etc.
o An appointment should be subject to Parliamentary approval - Both the houses should
approve the nominee for the governor for the state.
o Leaders of Opposition in both the houses should also be consulted - The leaders of
opposition in both the houses should be consulted before finalizing the name of the nominee
as the governor of the state.
• Sarkaria Commission:
o Avoid Active Politicians - Active politicians should be avoided, especially in those states
where the ruling party is different from the ruling party at the centre.
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g_ o Appoint outsiders - Appoint a person as a governor who is an outsider from the state as that
person would be away from the local politics of that state.
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of economy and polity - Persons who are detached from politics and have a wide social­
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The report of NCRWC came in 2002, headed by M.N. Venkatachelliah which recommended
appointing the governor on the recommendation of a committee. The committee should
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 The committee should include the Prime Minister, Home Minister, Speaker of Lok Sabha, and the Chief
Minister of the state where the governor has to be appointed.

Issues in appointing Retired Service Chiefs and Bureaucrats

• The politicization of Service - It leads to the politicization of service, as the working service chiefs and
bureaucrats would expect and lure posts such as of governor post-retirement. It would lead to a
conflict of interest and a situation of quid-pro-quo.
• Training Rigid - The bureaucrats are trained rigid, meaning they are rule adherent as such rules are
mentioned in the transaction of business rules/allocation of business rules at every level. This imparts
an element of rigidity in them as they do so their entire employable life. If the same person is appointed
at a political position such as of governor, this rigidity hampers the way of his work. The position is
political which requires a flexible mindset and the need to work with differences.
To avoid such issues, there should be a cooling-off period for 2 years -meaning appoint them after 2
years of their retirement.

Note:
In the Rameshwar Prasad case, 2006, the Supreme Cou rt said that there is a need to evolve the right
kind of parameters and norms as to what kind of people and how the governor should be appointed .
These norms should be appl icable and acceptable to all pol itical parties.

• Removal of Chief Minister:

o Pleasure Doctrine - It has two aspects: Confidence of the House and Purity of Administration. This
implies the relationship between the Chief Minister and the Governor-the chief minister remains in
the office during the pleasure of the governor (though the governor cannot remove him until he
enjoys the confidence of the house).
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the Governor when Chief Minister loses the confidence of the house, then he should not decide this g_�
issue at his residence (Raj Bhawan), but the house of the legislature -the legislative assembly. This 0
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party) or the chief minister on the floor of the house-legislative assembly. (.!)
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• Governor can sanction prosecution under section l�:)7 of Code of Criminal Procedure u
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• Governor can outrightly dismiss the chief minister if,
o The chief minister undermines the unity of the nation.
o The chief minister tries to create the state into an independent country.
o The chief minister enters into negotiation with a foreign power to break away
from the republic.

• Governors as chancellors of the Universities:

Issues with Governor as a chancellor of the Universities -
o Shau Id such positions be conferred to the governor?
o Should the governor act on the advice of the Council ofMinister?
The Punchi Commission on this said that the constitutional position of the governor is already into a
mess and controversy, that additional positions outside the constitution should not be conferred to the
governor. This would create further conflict and problems.
For example - Devanand Kanwar in 20 1 0 (Governor of Bihar), appointed on his own six vice­
chancellors of six Bihar state universities without adhering to the advice of the Bihar state government.
• Discretionary Domain
o Vague Language - The discretionary power conferred in article 163 of the constitution are couched
in very vague and ambiguous language.
o Comparing Governor position with the President - Comparing the position of the governor with
that of the president with respect to the council of governor is equal and the same. It differs in the
matter of situational discretion which is enjoyed by the governor. Barring article 200 and article
239, which are not for the governors of all the states.
Rather, the position of the President is more secure as the president cannot be arbitrarily removed
as in the case of the governors who can be removed/transferred easily.

Issues in the position of Governor

There are multiple issues in the position of the governor due to the following reasons:

Appoi ntment/Remova l
by the U n ion

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Issues i n position of the Rep resentative of the
Governor U n ion

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Governo r wea rs two
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Head of the State
 • Appointment and removal in the hands of the union government.
• The governor wears two hats:
o Head of State Government
o Representative of the Union:
• Article 200: He can refer a bill to the consideration of the president if the governor wants to seek the
advice of the president on any matter in the provision of the bill.
• Article 355: It casts two responsibilities on the centre which are - Constitutional Governance in the
state and protecting the state.
• Fortnightly Reports: Governor can send an adverse report for dismissal of state government and
imposition of president rule under article 356 in the situation of constitutional breakdown in the state.
• Schedule V and Schedule VI areas: Center's responsibility with respect to these areas is properly
being preserved and implemented is ensured by the Governor.
• Central Administrative Directions (CAD): Centre is constitutionally authorized to issue some binding
directions to the state. For example - binding direction for the protection of the railways. This is
ensured by the governor of the state.

Apex Court Judgements

• Raghukul Tilak Case, 1979:_Governor is not the employee of the central government, and his position
is an independent constitutional authority. It is not amenable from any control from the central
government. Meaning the centre cannot interfere with the responsibilities and the role to be
discharged by the governor once the appointment has been done by the centre and cannot instruct the
governor to perform the duties in any specific way.
• B.P Singha! Case, 2010: This case is related to the casual dismissal of the governor, the moment the
ruling party at the centre changes. The court said that Article 156 dispenses with the obligation of not
providing the reasons for removal, but it does not dispense with the requirement of being fair and
reasonable in removing the governor.
The court observed that the governor cannot be removed on arbitrary grounds and if he is dismissed
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Removal of the Governor 0
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centre-state relations. On the removal of the governor, the committee recommended that the governor (.!)
should be removed on two grounds - a) Misbehavior i.e., corruption/unethical conduct b) Incapacity, w
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very compelling/strong reasons. Also, before dismissing a governor, a show-cause notice should be
given to the governor, asking him to provide an explanation defending himself. w
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Sarkaria Commission further said that this explanation should be examined by a committee of two �
 members consisting of the Vice-President (Chairman Rajya Sabha) and a retired Chief Justice of India
(CJI). After receiving the recommendation of the committee, the President on the advice of the council
of ministers should take the final decision. If the president dismisses the governor, the reasons for the
dismissal should be placed before both houses of Parliament and Parliament should also be allowed to
debate on that.
• Punchi Commission: It recommended that there should be a fixed tenure of five-year and the
procedure for the removal of the governor should be Mutatis Mutandis (to the President of India) by
amending the constitution. Meaning the removal of the governor should be approved by a special
majority of the two-third members in the legislative assembly of the state.

Other Recommendations
• After the appointment, the governor should quit the primary membership of his political party.
• He should be ineligible for appointment as an office bearer of any political party till such time he is in the
office of the governor.
• He should be ineligible for election or appointment to any other political position except President,
Vice-President, or Governor post-retirement.
• Governor should be transferred only with his consent.
• The governor should be immune from receiving any instructions from any person, except the
President.

Should the position of the Governor be Abolished?

The position of the governor is the legacy of the British Raj where he was the real head. As the position of the
governor is now a nominal head of the state, the powers which as of now are conferred with the governor
can also be performed or distributed with the courts and the president. For example - Referring bills to the
President as per article 200 if the governor thinks that the bill is unconstitutional can also be dealt with the
help of the courts. And if there is a hung assembly, the President can intervene in such matter of the state.
If the position is not abolished, then the recommendations made by various commissions (Sarkaria, Punchi,
� etc.) and various other court judgements in respect to the appointment and removal process, the conduct of
g_ the governor, etc., should be implemented to improve the position of the governor.
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 STATE EXECUTIVE - CH I EF M I N ISTER
AN D COU N CI L OF M I N ISTERS
Article 164: Other provisions as to Ministers
(l)The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed
by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the
pleasure of the Governor:
Provided that in the State of Chhattisgarh, Jharkhand, Madhya Pradesh and Orissa, there shall be a
Minister in charge of tribal welfare who may, in addition, be in charge of the welfare of the Scheduled
Castes and backward classes or any other work.
(A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State
shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of
that State:
Provided that the number of Ministers, including Chief Minister in a State, shall not be less than
twelve:
Provided further that where the total number of Ministers including the Chief Minister in the
Council of Ministers in any State at the commencement of the Constitution (Ninety-first
Amendment) Act, 2003 exceeds the said fifteen per cent. or the number specified in the first
proviso, as the case may be, then, the total number of Ministers in that State shall be brought in
conformity with the provisions of this clause within six months from such date as the President
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• Referring to the 73rd and the 74th Amendment Act 1992 which are to devolve the powers and
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 (2)The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall administer so him the oaths of office
and secrecy according to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the
State shall at the expiration of that period cease to be a Minister.

Explanation: Appointment of non-legislators as ministers (Article 75(5) in case of Union Ministers

In the B. R. Kapoor Case, 2001, the court gave the following judgement -
• One who is not qualified to contest elections cannot avail of article 75(5) and Article 164(4).
• No arbitrary appointment: The following can be appointed as ministers -
o To appoint a competent person who has lost the elections.
o Appoint a person who could not contest elections due to other constitutional commitments.
o Appoint experts
• No repeat appointments after the expiry of the six months.

(S)The salaries and allowances of Ministers shall be such as the Legislature of the State may from
time to time by law determine and, until the Legislature of the State so determines, shall be as
specified in the Second Schedule The Advocate General for the State.
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STATE LEG ISLATU RE - LEG ISLATIVE
ASSEM BLY
Article 168: Constitution of Legislatures in States
(1) For every State, there shall be a Legislature which shall consist of the Governor, and-
(a) in the States of Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu,
Telangana and Uttar Pradesh, two Houses;
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative
Council and the other as the Legislative Assembly, and where there is only one House, it shall be
known as the Legislative Assembly.

Explanation
Madhya Pradesh though mentioned above but does not have a legislative council, as it exists on paper since
the 7th Amendment Act 1956. No date has been provided for enforcement of this provision.
Tamil Nadu passed a resolution seeking the creation of a legislative council, and parliament in 20 10 by law
also provided for it. But before the legislative council could be created, the then government of DMK fell from
power and AIADMK came to power which again passed a resolution to counter the law passed by
parliament in 20 10.)
The state of Jammu & Kashmir used to have a legislative council, but it has been abolished since it became a
Union Territory.

Other Resolutions:
• In 202 1, West Bengal passed a resolution to have a legislative council in the state.
• In 20 18, Odisha also passed a resolution to have a legislative council in the state.
• Assam and Rajasthan have also passed the resolution for having a legislative council which in past,
which is still pending in the Parliament.
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(1) Notwithstanding anything in article 168, Parliament may by law provide for the abolition of the
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having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a
majority of the total membership of the Assembly and by a majority of not less than two-thirds of
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the members of the Assembly present and voting.
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(3) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of
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Article 170: Composition of the Legislative Assemblies
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(/) (1) Subject to the provisions of article 333, the Legislative Assembly of each State shall consist of not
 more than five hundred, and not less than sixty, members chosen by direct election from territorial
constituencies in the State.
Explanation -Article 333 pertains to the nomination of one Anglo-India to the state legislative assembly,
which has now done away with.
States with Legislative Strength less than sixty-
• Nagaland-not less than 46 (Article 371 A)
• Sikkim-not less than 30
• Mizoram-not less than 40
• Arunachal Pradesh-not less than 30
• Goa-not less than 30

(2) For the purposes of clause (1), each State shall be divided into territorial constituencies in such
manner that the ratio between the population of each constituency and the number of seats allotted to
it shall, so far as practicable, be the same throughout the State.
Explanation - In this clause, the expression - population means the population as ascertained at the
last preceding census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding census of which the relevant figures
have been published shall, until the relevant figures for the first census taken after the year 2026 have
been published, be construed as a reference to the 200 1 census.

(3) Upon the completion of each census, the total number of seats in the Legislative Assembly of each
State and the division of each State into territorial constituencies shall be readjusted by such authority
and in such manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in the Legislative Assembly until the
dissolution of the then existing Assembly: al
Provided further that such readjustment shall take effect from such date as the President may, by order, �
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specify and until such readjustment takes effect, any election to the Legislative Assembly may be held
based on the territorial constituencies existing before such readjustment: w
Provided also that until the relevant figures for the first census taken after the year 2026 have been >
published, it shall not be necessary to readjust-
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(i) the total number of seats in the Legislative Assembly of each State as readjusted based on the
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1971 census; and ...I

(ii) the division of such State into territorial constituencies as may be readjusted based on the 200 1 w
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census, under this clause. ::::>

Article 1 7 1: Composition of the Legislative Councils l!)

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(1) The total number of members in the Legislative Council of a State having such a Council shall not ...I
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exceed one-third of the total number of members in the Legislative Assembly of that State:
Provided that the total number of members in the Legislative Council of a State shall in no case be less t,-;
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 than forty.
2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall
be as provided in clause (3).
(3) Of the total number of members of the Legislative Council of a State-
(a) as nearly as may be, one-third shall be elected by electorates consisting of members of
municipalities, district boards and such other local authorities in the State as Parliament may by
law specify;
(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in
the State who have been for at least three years graduates of any university in the territory of India
or have been for at least three years in possession of qualifications prescribed by or under any law
made by Parliament as equivalent to that of a graduate of any such university.
(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have
been for at least three years engaged in teaching in such educational institutions within the State,
not lower in standard than that of a secondary school, as may be prescribed by or under any law
made by Parliament;
(d) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the
State from amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in accordance with the provisions of clause (5).

Explanation - Composition of Legislative Council: The members are elected by -

• 1/3rd - local bodies Creation of
• 1/12 th - graduates of 3 years standing } Territorial Constituency PR+STV
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• 1112 - teachers of 3 years standing Applicable
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• 1/3 - M LAs of the state
• 116th - Nominated by Governor (from the field of arts, literature, social service, science, cooperative
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(4) The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen in such
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territorial constituencies as may be prescribed by or under any law made by Parliament, and the
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(5) The members to be nominated by the Governor under sub-clause (e) of clause (3) shall consist of
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persons having special knowledge or practical experience in respect of such matters as the
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Literature, science, art, co-operative movement, and social service
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Article 172: Duration of State Legislatures
( 1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years
from the date appointed for its first meeting and no longer and the expiration of the said period of
five years shall operate as a dissolution of the Assembly:
Provided that the said period may, while a Proclamation of Emergency is in operation, be extended
by Parliament by law for a period not exceeding one year at a time and not extending in any case
beyond a period of six months after the Proclamation has ceased to operate.
(2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible
one-third of the members thereof shall retire as soon as may be on the expiration of every second
year in accordance with the provisions made in that behalf by Parliament by law.

Article 173: Qualifications of a member of State Legislature

A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he -
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the
Election Commission an oath or affirmation according to the form set out for the purpose in the
Third Schedule;
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in
the case of a seat in the Legislative Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made
by Parliament.
Explanation - The other qualification includes such as those in the Representation of People's Act
(RPA) 1 9 5 1.

Chairman of Legislative Council vs Rajya Sabha

• No position of Vice-Governor, as in the case of Rajya Sabha, whose chairman is the Vice­
al
President of India. �
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• The chairman of the legislative assembly is elected as a speaker in the legislative assembly/Lok
Sabha but on the other hand, the Rajya Sabha chairman is not a member of the house. w
• The tenure of the chairman of the Legislative council is six years, whereas, the tenure of the >
chairman of Rajya Sabha is five years.
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Relationship between the Legislative Assembly (LA) and Legislative Council (LC) ...J

The relationship between the LA and LC is on a similar line as that of the Lok Sabha and the Rajya w
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Sabha. But, some important differences exist. The relationship is as follows: ::::>
• Money Bills - The relation is the same as between the Lok Sabha and Rajya Sabha, i.e., the money
bill can be introduced only in the legislative assembly, only with the prior recommendation of the l!)
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Governor of the state. The Legislative Council have no power to vote on it or to amend it. It should ...J
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be returned to the legislative assembly within 14 days, either with or without amendments. The
Legislative Assembly can either accept or reject all or any of the recommendations of the council. t,-;
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 If the legislative assembly accepts any recommendations, the bill is then deemed to be passed by both
the houses in the modified form or as originally passed by the assembly without any change.
• Ordinary Bills - The scenario here differs at that from the centre :
Scenario I: Bill introduced in Legislative Assembly and passed. It is with the Legislative Council.
The Legislative council, like Rajya Sabha, can -
o Can Pass it
o Can reject it
o Can amend it (amendments may or may not be acceptable to the legislative assembly)
o Do nothing for a period of 3 months ( it is 6-months in the case of Rajya Sabha)
o There is no scope of joint sitting in the case of the state legislature. Instead, the legislative
assembly has to pass the bill again which will go to the legislative council, which now again can
pass it, reject it or amend it, or can do nothing for a period of one month (earlier 3 months). At
the end of this period, it shall be deemed to be passed.
Scenario II: The bill has been introduced and passed by the legislative council. It is with the
legislative assembly, the assembly if rejects the bill, then it is the end of the bill.

Hence, there is no scope of joint sitting and the maximum delay can be of 4-months with the legislative
council. Here the status of the Legislative council is weak as compared to the Rajya Sabha at the centre
because the Rajya Sabha is the federal chamber that represents the interest of the states at the national
level. Whereas the status of the Legislative council is that of a dilatory chamber, with less real powers.

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(Second Administrative Report Commission (2 ARC), in this matter has recommended that every state
should have a legislative council and the members of this council should be entirely elected by the local
bodies. This will help to strengthen the voice of the local bodies at the state level and ensure that
representatives of local bodies work for the betterment of the local bodies. Therefore, it should act as a
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the federal chamber between the central government and state government.)
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Critique of Legislative Council
The idea of having bicameralism at the state level was criticized in the Constituent Assembly on the
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grounds that:
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• Delay in Legislation - The bill has to go through both the houses in states where the legislative
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council exists. It is seen that bills take much longer time to pass in states having bicameralism.
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bring the politician who could not win elections in the state assembly and those politicians whom
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Utility of Legislative Council
• Representation to special Interests - like the educated people and the academia.
• Representation to senior statesmen
• Check hasty/ill-conceived decisions by the legislative assembly
• Offer valuable suggestions.

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 r:r., LOCAL SELF GOVERN M ENT
� - I NTRO D U CTIO N
Introduction
The local self-government is the oldest and closest form of government. It is the oldest form because
when human settlement began - maybe in a small or a big village or a rudimentary town (small
habitation), the community was managed and controlled by the local government. The national and the
state governments came much later after establishing the large nation-state (modern nation-state).

It is the closest form of government because it is the level of government that is closest to the people and
whose activities and decision making can be seen by the people directly as opposed to the activities of
the Union government and the State government.

Local self-government as a term is a misnomer (in appropriate term). This is because we have self­
government at higher levels also such as at the state and union level as we have elected that
government. This term comes from the era of the British Raj when some measure of self-government
was effectively operationalized to some extent in India, it was operationalized at the local level, especially
at the municipal level. So, during those times the self-government was functional only at the local level
and not at a higher level.
Even the word government is a misnomer as the government is a complete apparatus that is
comprehensively responsible for everything that happens in the state. Law & order, public order, most of
the developmental issues, agriculture, health etc. are in the state list and anything which goes wrong the
state government is held responsible for it. But this is not the case with the local self-government. The
principal Grassroot territorial level of administration in India is the district which is administered by
district administration which is headed by the legendary position of the District Magistrate/Collector. A
district may have both urban and rural areas. The developmental and regulatory tasks of rural areas are
governed by the Panchayati Raj Institutions (PRl's) while Urban areas are governed by the municipalities
(Urban Local Bodies - ULB's). Both these provide basic amenities to the community and are not as such
given power to govern over larger subjects. At the state level, the state is a composite entity looking at
z everything but at the district level it is scattered - there is no comprehensiveness and there is no district
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government. There is only district administration looking after development, law and order, public order
Q etc. Some areas of district administration are overlapping with that of the PRl's and ULB's. Meaning their
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functions are not defined and rather scattered and there is no one comprehensive entity to be called as
z government at this level. The structure is fragmented at the district level.
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which is then coordinated and controlled by the district administration.

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• Local government is an administration of a small locality by a body representing local inhabitants.
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 • Raising at least a part of their revenue locally.
• Spending it on services which are local (Basic amenities - sewage, sanitation, water supply,
maintenance of that local area, street lighting, roads, bridges etc.)

Significance of Local Self-Government

• Grass root democracy: As per JL Nehru the system of democracy at the top can not succeed unless
it is built on a strong foundation from below - which is the local self-government (PRls and ULBs).
They are the institutions that help people to develop political consciousness and where democracy
takes up roots and that is the reason it is called grass-root democracy. They basically provide the
foundation to the entire superstructure of democracy.
• School of Democracy: Local Self-Government is the best school of democracy - which is at the
local level where regular elections, debates & dissent and voting behaviour take place. People will
be able to make the idea of a sense of democracy at the higher levels only when they get training
and practice of democracy on a smaller level. They are the training grounds for the leader of the
future. Therefore, it is a school of democracy for both the people (they learn the art of democracy
close to their habitation) and a training ground for the leaders of the future (learn to articulate and
represent democratic ideas at the smaller level which they can replicate later the higher level).
• More capable level of government: It is more capable in the sense that-
a Local Interest - Local issues and problems of the habitation are well known to that community
at the local level such as potholes on the road, water issues, etc. They also have the same
interest in resolving the issue as well.
o Local knowledge -The people living in that local area possess the knowledge of that area
better.
• More Economical: It is a more economical form of government. The spending done by local self­
government is in front of the local inhabitants and they have more vigilance over the spending done
by them. By this, the money is well spent.
• Reduce the burden of the upper level of government: The local self-government reduces the z
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burden over the higher level of government (such as state government) if it functions properly.
Then the state and union government can focus on broader policies if smaller or local issues are 0
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dealt with by the local institutions and they are effectively organized, effective powers are 0:::
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devolved, responsibilities and authorities are given, and they have funds at their disposal. z
• Two-way channel of communication: Local self-government act as a two-way channel of f-­
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communication as the local politicians are at the cutting-edge level of administration - who are �
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most intimately involved with looking at the local problems and issues and they communicate these 0:::
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problems and issues to the higher level. So, they are the link between the local population and the
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higher level of the government and as a channel through which government schemes can be LL
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implemented and proper implementation over those schemes can also be exercised. LU
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• Vital for National Progress: Local self-government is vital for national progress as it is necessary
for the development of the state to recognize and tap the resources, including human and material 0
 resources. To recognize these resources the local government act as the agent of the state which
help in recognizing those resources. As village panchayats and local bodies are in a better position
to recognize this locally available talent and the resources.
• Indispensable for Decentralized Planning and Development
• Real participation of people: The real participation of people is possible only at the local self­
government level and not at higher levels. So, direct democracy is possible at the grass-root level
which is at the gram panchayat level and municipalities level.

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 � LOCAL SELF GOVERN M ENT
� - EVOLUTI ON OF TH E PANCHAYATS
Evolution
Some kind of arrangement for the local administration and local government has existed in India since the
past (though may not be democratically elected). Its evolution can be traced as follows:

• Ancient India - Looking at the Harappan/lndus valley civilization, which was very much urban in
nature, so in India, we can say that we started with Urban local government. The civic arrangements in
the city must have been managed by some very efficient organization in that city which was
responsible for running the affairs in the city. So, the local government had to exist for cities to be
planned and managed in such a way.

Once Harappan civilization declined, Aryan or the Vedic age emerged, which was based on the
villages. Terms such as Gramini, Gramika, etc. were used which are evident from the Vedic text. These
were the terms used for village headmen - a functionary who used to manage the affairs of the village.

In the Mauryan age, in Patliputra, there was a board of thirty members divided into six committees of
five-member each to manage the affairs of the city and look after the city management. Such a
reflection is still seen in today's municipal corporations in many parts of India.

During the Gupta age, councilisation of local government was used - meaning instead of one person
being made in charge of an area, a plural body such as a council/committee was in charge of the rural
area. Terms such as panch Parmeshwar and panch mandlis were frequently used, which meant that
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now the principal body responsible for managing the affairs of the area had transformed from a single
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Perhaps, the best example of effective organization of local self-government, in Ancient India is of
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u.. which date back to the 9 and 1 0 century AD, which give information about the local self-government
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evident reason that the conditions in the country were unsettled on account of various external
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1- invasions. The Sultanate which was established in India was heavily centralized, which goes against
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• British Period - Today's Local government institution of India traces its origin to the British period,
u.. especially urban local government. Britishers had set up the local government institution as it would
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Another reason for this set-up would not burden the British government resources and the resources
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g of the local areas would be used (to give relief to Imperial finances). Hence, they organized local
 governments to:
o To prevent disaffection amongst natives
o Relieve Imperial finances and serve Imperial interests.
o Greater appreciation of British manufactured goods amongst Indians.
It was in the year 1687, the first Municipal corporation was set up in Madras. But there were hardly any
elected members-most of them were nominated.
Lord Rippon was interested in the democratization of local bodies - he tried to make them effective self­
government. He came up with the Resolution of 1882 which is often referred to as the Magna Carta of Local
Self-Government. He is often regarded as the father of local self-government in India.

The Original Constitution on Local Self-Government-It originally had only two provisions -i.e., Article 40
- a DPSP, which says "To organize village panchayats and endow them with necessary powers and
authority to enable them to function as units of self-government". And entry number 5 of the state list-local
self-government a state subject. Hence, the original constitution gave constitutional importance to the
local bodies but not constitutional status, which came much later in 1992.

Community Development Programme (CDP)

The government of India in 1952 started the Community Development Programme (CDP). This
programme was based on the Extension Services Programme of the USA. This programme was largely
rural in character for comprehensive rural development and reconstruction with a focus on various
agriculture and overall development. It was implemented in India with help of the NGO - Ford Foundation
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and the Government of India.
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Under CDP, Blocks came into existence as territorial units of development. Whereas, districts were divided �
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into sub-division, which were further divided as tehsils. They were the field units of revenue administration. u
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This programme is based on people's participation rather than that of bureaucracy alone.
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To evaluate the working of this programme, in 1957, Balwant Rai Mehta Committee was set up. It was z
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appointed by the National Development Council (NDC). In its report, it found that CDP was a partial success i=
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because there was no people's participation on account of the absence of institutional framework at the ...I

grass-root level.
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The Balwant Rai Mehta Committee gave certain recommendations which are as follows: �
• Establishment of a three-tier Panchayati Raj System­
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a Gram Panchayat at the village levels
o Panchayat Samiti at the block level (executive tier) and LL
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• Vertical Representation - The village panchayat should be constituted with directly elected
representatives, whereas the Panchayat Samiti and Zila Parishad should be constituted with indirectly
 elected members. Elections should take place every five years.
• Regular Elections - Elections should take place every five years.
• Local Legislators to be a part of Zila Parishad - The MLAs, MPs and MLCs should also be nominated
as members of Zila Parishad.
• The district collector should be the chairman of the Zila Parishad.
• Political parties must be debarred from participating in elections.
• There should be genuine devolution of power, finances, taxation power to the local bodies.

The report was accepted in 1958 and democratic decentralization began in 1959. It began with Nagaur
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District of Rajasthan on 2 October 1959, the first to establish Panchayati Raj. After its implementation
many states followed different tiers-some two-tier, some states followed four-tier system as well.

Stagnation

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i= bypassing the state government in the process. It also saw the period of emergency ( 1975-77).
3 From 1977 onwards, the revival process was started. The Janata party appointed the Ashok Mehta
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Committee on Panchayati Raj Development.
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u.. In 1977, the Janata Government appointed a committee on Panchayati raj institutions under the
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• The two-tier system, that is, Zila Parishad at district level (executive body), and below it, the Mandal
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g Panchayat consisting of a group of villages with a population of 15,000 to 20,000.
 • Political Parties must be allowed to contest elections (in contrast to Balwant Rai Mehta Committee). As
a result, West Bengal became the first state to directly allow political parties to contest elections in the
local bodies. But some states still do not allow political parties to participate in the elections.
• Premature dissolution to be followed by election within 6 months.
• Reservation of seats for SCs/STs.
• A separate ministry of Panchayati raj in all state governments.

GVK Rao Committee ( 1985)

It is also called as the CAARD Committee-Committee to Advice on Administrative arrangements for Rural
Development. The principal recommendations were:
• Zila Parishad to be the principal body to manage all rural development programmes.
• There should be a CEO of Zila Parishad who should be designated as District Development
Commissioner (DDC).

LM Singhvi Committee (1986)

Its recommendations are as follows:
• The Panchayati Raj Institutions should be given constitutional status.
• Separate Nyaya Panchayats should be established for a cluster of villages.
• The Panchayati Raj judicial tribunals should be established in each state to adjudicate controversies
about elections to the Panchayati raj institutions, their dissolution and other matters related to their
functioning.
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Constitutionalisation �
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The Rajiv Gandhi Government introduced the 64th Constitutional Amendment Bill in the Lok Sabha in July u
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1989 to constitutionalise Panchayati Raj Institutions and make them more powerful and broad-based.
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Although the Lok Sabha passed the bill in August 1989, it was not approved by the Rajya Sabha. The bill was I
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vehemently opposed by the Opposition on the ground that it sought to strengthen centralisation in the LL
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federal system. z
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Eventually, after a lot of modification of these bills, states were brought on board and finally, the 73rd (PRls) i=
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and the 74th (ULBs) Amendment Acts 1992 were passed. ....I

The 73rd Amendment Act added part IX and eleventh Schedule (29 subjects) to the constitution for the
PRls. 1-
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The 74th Amendment Act added part IX-A and twelfth Schedule (18 subjects) to the constitution for the �
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• Mandatory with flexibility in the implementation
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 � LOCAL SELF GOVERNMENT
� - PROVISIONS OF THE PART-IX
Article 243. Definitions -
In this Part, unless the context otherwise requires,
a) District means a district in a State;
b) Gram Sabha means a body consisting of persons registered in the electoral rolls relating to a village
comprised within the area of Panchayat at the village level;
c) Intermediate-level means a level between the village and district levels specified by the Governor of a
State by public notification to be the intermediate level for the purposes of this Part;
d) Panchayat means an institution (by whatever name called) of self-government constituted under
article 2438, for the rural areas;
e) Panchayat area means the territorial area of a Panchayat;
f) Population means the population as ascertained at the last preceding census of which the relevant
figures have been published;
g) Village means a village specified by the Governor by public notification to be a village for the purposes
of this Part and includes a group of villages so specified

Article 243A. Gram Sabha

A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of
a State may by law, provide.

Article 2438. Constitution of Panchayats

1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in
accordance with the provisions of this Part.
2) Notwithstanding anything in clause ( 1 ), Panchayats at the intermediate level may not be constituted
� in a State having a population not exceeding twenty lakhs.
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in territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by
election shall, so far as practicable, be the same throughout the State,
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1- constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into
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� territorial constituencies in such manner that the ratio between the population of each constituency
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area.
LL 3) The Legislature of a State may, by law, provide for the representation
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level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at
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 (b) if the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district
level;
(c) of the members of the House of the People and the members of the Legislative Assembly of the
State representing constituencies which comprise wholly or partly a Panchayat area at a level other
than the village level, in such Panchayat;
(d) of the members of the Council of States and the members of the Legislative Council of the State,
where they are registered as electors within
(I) a Panchayat area at the intermediate level, in Panchayat at the intermediate level;
(j) a Panchayat area at the district level, in Panchayat at the district level
4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct
election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings
of the Panchayats.
5) The Chairperson of -
(a) Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by
law, provide; and
(b) a Panchayat at the intermediate level or district level, shall be elected by, and from amongst, the
elected members thereof.

Article 2430. Reservation of seats

1) Seats shall be reserved for:
(a) the Scheduled Castes; and
(b) the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly
as may be, the same proportion to the, total number of seats to be filled by direct election in that
Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled �
Tribes in that Panchayat area bears to the total population of that area and such seats may be �
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allotted by rotation to different constituencies in a Panchayat. :I:
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2) Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for 0
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women belonging, to the Scheduled Castes or, as the case may be, the Scheduled Tribes. z
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3) Not less than one third (including the number of seats reserved for women belonging to the Scheduled vi
Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every
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constituencies in a Panchayat. 1-
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4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for �
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the Scheduled Castes the Scheduled Tribes and women in such manner as the Legislature of a State c::
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may, by law, provide: Provided that the number of offices of Chairpersons reserved for the Scheduled
Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as LI.
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may be, the same proportion to the total number of such offices in the Panchayats at each level as the w
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population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the
total population of the State: Provided further that not less than one third of the total number of offices
 of Chairpersons in the Panchayats at each level shall be reserved for women: Provided also that the
number of offices reserved under this clause shall be allotted by rotation to different Panchayats at
each level.
5) The reservation of seats under clauses ( 1 ) and ( 2 ) and the reservation of offices of Chairpersons
(other than the reservation for women) under clause ( 4 ) shall cease to have effect on the expiration of
the period specified in article 334.
6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of
seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward
class of citizens.

Article 243E. Duration of Panchayats, etc

1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for
five years from the date appointed for its first meeting and no longer.
2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a
Panchayat at any level, which is functioning immediately before such amendment, till the expiration of
its duration specified in clause ( 1 ).
3) An election to constitute a Panchayat shall be completed:
(a) before the expiry of its duration specified in clause ( 1 );
(b) before the expiration of a period of six months from the date of its dissolution: Provided that where
the remainder of the period for which the dissolved Panchayat would have continued is less than six
months, it shall not be necessary to hold any election under this clause for constituting the
Panchayat.
4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall
� continue only for the remainder of the period for which the dissolved Panchayat would have continued
� under clause ( 1 ) had it not been so dissolved.
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Vl 1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat:
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in (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to
the Legislature of the State concerned: Provided that no person shall be disqualified on the ground
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that be is less than twenty five years of age, if he has attained the age of twenty one years;
1- (b) if he is so disqualified by or under any law made by the Legislature of the State.
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disqualifications mentioned in clause ( 1 ), the question shall be referred for the decision of such
authority and in such manner as the Legislature of a State may, by law, provide.
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Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats
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government and such law may contain provisions for the devolution of powers and responsibilities upon
Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to:
(a) the preparation of plans for economic development and social justice;
(b)the implementation of schemes for economic development and social justice as may be entrusted to
them including those in relation to the matters listed in the Eleventh Schedule.

Article 243H. Powers to impose taxes by, and funds of, the Panchayats
The Legislature of a State may, by law,
(a) authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance
with such procedure and subject to such limits;
(b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government
for such purposes and subject to such conditions and limits;
(c) provide for making such grants in aid to the Panchayats from the Consolidated Fund of the State; and
(d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of
the Panchayats and also for the withdrawal of such moneys therefrom,
as may be specified in the law.

Article 2431. Constitution of finance Commissions to review financial position

• The Governor of a State shall, as soon as may be within one year from the commencement of the
Constitution (Seventy third Amendment) Act, 1992 , and thereafter at the expiration of every fifth year,
constitute a Finance Commission to review the financial position of the Panchayats and to make
recommendations to the Governor as to:
o the principles which should govern -
► the distribution between the State and the Panchayats of the net proceeds of the taxes, duties, �
tolls and fees leviable by the State, which may be divided between them under this Part and the �
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allocation between the Panchayats at all levels of their respective shares of such proceeds; :I:
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► the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated 0
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► the grants in aid to the Panchayats from the Consolidated Fund of the State; vi
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finance of the Panchayats. 1-
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• The Legislature of a State may, by law, provide for the composition of the Commission, the �
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qualifications which shall be requisite for appointment as members thereof and the manner in which c::
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they shall be selected.
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their functions as the Legislature of the State may, by law, confer on them. w
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• The Governor shall cause every recommendation made by the Commission under this article together
with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of
 the State.

Article 243J. Audit of accounts of Panchayats

The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by the
Panchayats and the auditing of such accounts.

Article 243K. Elections to the Panchayats

• The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of,
all elections to the Panchayats shall be vested in a State Election Commission consisting of a State
Election Commissioner to be appointed by the Governor.
• Subject to the provisions of any law made by the Legislature of a State the conditions of service and
tenure of office of the State Election Commissioner shall be such as the Governor may by rule
determine: Provided that the State Election Commissioner shall not be removed from his office except
in like manner and on the like ground as a Judge of a High Court and the conditions of service of the
State Election Commissioner shall not be varied to his disadvantage after his appointment.
• The Governor of a State shall, when so requested by the State Election Commission, make available to
the State Election Commission such staff as may be necessary for the discharge of the functions
conferred on the State Election Commission by clause ( 1 ).
• Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision
with respect to all matters relating to, or in connection with, elections to the Panchayats.

Article 243L. Application to Union territories

The provisions of this Part shall apply to the Union territories and shall, in their application to a Union
� territory, have effect as if the references to the Governor of a State were references to the Administrator of
� the Union territory appointed under 239 and references to the Legislature or the Legislative Assembly of a
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Vl Provided that the President may, by public notification, direct that the provisions of this Part shall apply to
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notification.
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1- Article 243M. Part not to apply to certain areas

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� • Nothing in this Part shall apply to the Scheduled Areas referred to in clause ( 1 ), and the tribal areas
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referred to in clause ( 2 ), of article 244.
• Nothing in this Part shall apply to -
LL (a) the States of Nagaland, Meghalaya and Mizoram;
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being in force.
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 o relating to Panchayats at the district level shall apply to the Hill areas of the District of Darjeeling in
the State of West Bengal for which Darjeeling Gorkha Hill Council exists under any law for the time
being in force;
o shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council
constituted under such law.
• A Nothing in article 243D, relating to reservation of seats for the Schedule Castes, shall apply to the
State of Arunachal Pradesh.
• Notwithstanding anything in this Constitution -
o the Legislature of a State referred to in sub clause (a) of clause ( 2 ) may, by law, extend this Part to
that State, except the areas, if any, referred to in clause ( 1 ), if the Legislative Assembly of that State
passes a resolution to that effect by a majority of the total membership of that House and by a
majority of not less than two thirds of the members of that house present and voting;
o Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal
areas referred to in clause ( 1 ) subject to such exceptions and modifications as may be specified in
such law, and no such law shall be deemed to be an amendment of this Constitution for the
purposes of Article 368.

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 =, LOCAL SELF GOVERN M ENT - SIG N I FICANCE OF TH E 73 RD
� CONSTITUTIONAL AM ENDM ENT ACT AN D G RAM SABHA

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Significance of the 73 Constitutional Act and Gram Sabha
• New Respectability - It has brought new respectability to the local bodies as it has been referred
to as the new Magna Carta of the local self-government.
• Regular Election -There are regular elections at an interval of five years as now it is a
constitutional provision. Supersession of Panchayat (premature termination) has become difficult.
• Separate Finance Commission and State Election Commission -The position of local bodies in
<( terms of finances has improved as compared prior to 1992. An independent separate state finance
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al commission has been established which will review the position of the local bodies and
recommend to the state the devolution of resources to the local bodies.
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The elections of the local bodies are handled by the independent State Election Commission which
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earlier was done by the state government.
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bodies that is the schedule XI (29 subjects) and XII ( 18 subjects) which has been mentioned in the
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• Provision for weaker section -The 73rd Amendment Act has helped in expanding the social base
C of politics in India by including the weaker section such as the SCs/STs and women as well. This
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z Each member of Municipalities (urban area) at any level represents 560 citizens.
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� • Considers the Annual Budget of Panchayat
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1- • Performs the Social Audit of Government Schemes

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their term end.
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Areas where Gram Sabha can be effective
• Social Audit - to perform the social audit of various schemes to ascertain whether the scheme has
resulted the determined dividends or not through the people for whom the scheme was launched.
• Creating Awareness about the Government Programmes - Various government schemes and
programmes can be known to the eligible beneficiaries through Gram Sabha.
• Identification of Beneficiaries - The eligible beneficiaries could be identified with the help of Gram
Sabha. <(
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• Improving Transparency & Accountability - Regular meeting of Gram Sabha and its member cc
increases transparency and accountability. �
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• Fixation of Priorities of development - Gram Sabha can have a say over the priorities of the �
development by taking the opinion from the members of the Gram Sabha.
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• Strengthen Direct Democracy - If Gram Sabha's functions effectively, they act to strengthen the z
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direct democracy.
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Problems in the Working of the Gram Sabha LU
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• Large and unwieldy in size - Some of the Gram Sabha are very large having a population of almost z
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1 0,000 people. This makes it difficult to effectively conduct the Gram Sabha meetings. �
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• Lack of appreciation as to the nature of the body - Villagers have not been given adequate
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knowledge about the Gram Sabhas. There are no rules of procedures to preside over the meetings, z
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agendas are rarely followed, and brawls and chaos take place at the meetings. �
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• Prolonged Meetings - The meetings are generally prolonged and endless.
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• Irregular Meetings - The meetings are not held periodically and are irregular. Though the z
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periodicity is mentioned in the state Panchayat Acts, they are rarely held and most of them are u
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fictitious meetings that take place only on papers and not in reality. 0:::
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• Poor Participation of Women - The participation of women is generally low in the Gram Sabha LU
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meetings. Though the participation of women has seen an increase where the Panchayat is headed u..
by the women. 0
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• Meetings characterized by Class, caste, and gender divides - The Gram Sabha meeting has been z
characterized by class divide, caste divide and gender divide which can be seen in the meeting 5u::::
pattern of the Sabha. z
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Suggestions 1-
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• Involve credible NGOs - As most of the meetings of Gram Sabha end up in chaos, so few states �
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have involved some credible NGOs in the management of the Gram Sabha meetings. This has 0:::
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ensured that the meetings are held effectively as well as regularly.
• Mandatory Provisions for holding Meetings - Though such a provision is already there in the State CJ
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Panchayat Acts, varying from state to state. Hence, an effective mechanism is required to ensure l/)
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that this provision is implemented and there is no fictitious meeting shown.
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• Information flow to Gram Sabha from Gram Panchayats - There should be proper management g
 of information flow to the Gram Sabha from the Gram Panchayats and no information is hidden
from the Gram Sabha.
• Redesigning of the Gram Sabha-Gram Panchayat Relationship - The Gram Sabha-Gram
Panchayat relationship should be redesigned on the line of Cabinet-Parliament relationship. This
can be done with the help of ward Sabha - which should have few members - which then forms
the Gram Sabha which will reduce the size of the Gram Sabha.
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 LOCAL SELF GOVERNM ENT - STATE CO NTRO L OVER
PANCHAYATS AN D PROBLEMS FACED BY TH E
PANCHAYATS (PART - 1)

The State control over the PRls is needed because of the following reasons:
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g_ • Legal Creation of the State - As the PRls are legally created, funded, and empowered by the state
l/) themselves, it is necessary that states make sure that PR ls functions properly.
� • Balance Regional Development - It needs to be ensured that Gram Panchayats functioning does not
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fw state.
J: Therefore, the state should avoid the development of parish pump attitude, i.e., parochial attitude only
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on one's own needs unmindful of adverse impact on the neighbouring villages and areas.
Cl • State Governments provide funds, administration & technical assistance - State government has
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technical assistance to the PR ls.
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al Means of State Control
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Cl encouragement (spur) is required, and a bit of control (rein) is required, the state government uses very
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<( direct, crippling, invasive, and very diabolic control (hammer) over the PR ls. These controls are as follows:
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• Key Officials are state government appointees - The critical staff of the local bodies are appointed by
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� the state government which may cripple the functioning of the local bodies. Through these employee's
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z • Superseding power with the state - The states can dissolve the Panchayats (which is an elected
f body) prematurely based on the State Panchayat Acts which have to weigh provisions for the same.
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This dissolution is regular in many states due to loopholes in the Panchayats act.
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...I • Suspends and Remove members -The state government can also remove and suspend the members
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� deal with such cases.
� • Suspend Resolution passed by PRls -State governments can suspend the resolution passed by the
1- PRls.
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w • Vertical Budgetary Approval -The budget of Gram Panchayats is approved by the next higher level
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z Block Panchayats; the budget of Block Panchayats is approved by the Zila Panchayats and the budget
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� • Binding Directions -The state government can issue binding directions to the local bodies. The local
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l/) • Audit of PR ls Accounts - The state government audit the accounts of the PR ls.
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• Order enquiries into affairs of PRls - State Government can order enquiries into the affairs of the PR ls.
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• Maximum and Minimum of Powers decided by the State Government - The state government
 decides the maximum and minimum of the powers which would be devolved to the local bodies.
• Tied Grants- State Government gives some grants to the local bodies which are decided by the state �
government itself where it must be used. They are in the nature of tied grants which specify where the
money can be spent.
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Evaluation of the Working of the PRls ::c
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A Pan India judgement is not possible for the PR ls because: z
• Different levels of Empowerment in different States: the power structure, the duties & �
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responsibilities and finances of the local bodies are decided by the respective state governments in ::c
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their own State Panchayats Act. There is huge variation across the states. �
• PRls, not a completely autonomous structure: There is no completely autonomous structure for the Cl
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local bodies as they derive their power from State governments. u
• Multiple Objectives: PR ls were set up with multiple objectives and purposes, one such was that these (/)
local bodies would become vehicles for deepening of political consciousness and democratization. �
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The other objective was to be a platform of development - development in the field of education, al
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health, employment etc. c:::
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If there are so many objectives and variations across states, then it is difficult to evaluate the working of Cl
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the PRls on the pan India level. <(
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Problems of PRls �
• Lack of adequate politico-bureaucratic will or vision - With the launch of the 73rd amendment act in ::c
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India, it has also seen the rise of the important power structure in the country - the rise of local and z
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village level politicians. This saps the political will at the state level as they see them as a threat to their c:::
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own power.
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More powers going to the local bodies means fewer decision-making powers with the bureaucratic ...I
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apparatus. So, it is seen as a threat to their own authority. c:::
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If this problem is addressed, other problems automatically fall into place. z
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• Social Landscape - The social landscape in rural India is not conducive for the effective growth of local u
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bodies. �
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o Feudalism: Land is the principal asset in rural India and landowners are the controller of the local g
 bodies and they are the ones who are the elected representatives in these bodies.

� o Casteism: There is a problem in the effective empowerment in the rise of the backward class
g_ particularly the Dalits.
l/) Caste still plays a role in the following ways:
� • Article 243 D (w.r.t. the quota of SCs/STs) has not been implemented faithfully.
� • Rotational Policy - the five-yearly rotational policy does not give sufficient time for the elected
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z member to make lasting ties with the people of its constituencies.
fw • The creamy layer has benefitted more among the backward classes.
J: • Proxy Candidates - the concept of sarpanch pati is seen where women seats are reserved and other
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reserved seats as well.
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Cl • Violent Backlash faced by the backward class. They have also been killed often referred to as
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• Restrictive Qualification imposed by the State government for the candidates. The states have
� imposed educational qualifications which is troublesome more for the backward classes as their
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al educational attainment is less than the non-backward classes. The educational norm was upheld by
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 � PRO B LE M S FAC E D BY TH E
� PAN CHAYATS (PART - 2)
Other Provisions of Haryana Panchayat Act
• Functional Toilet - A person who does not have a functional toilet at his/her home is disqualified from
contesting the elections. The idea behind this provision is to end open defecation. But it leaves the
homeless people and people using community toilets - those who may be using functional toilets,
away from contesting elections.
• No arrears to cooperative banks - The person contesting the election should have no arrears pending
in the cooperative's banks. So, it is not the insolvency as a disqualification but even missing one or two
instalments makes the person stand disqualified.
• No arrears of Electricity Bill - If there is any electricity bill pending, then they are not allowed to contest
the elections.
• Accused of an offence which attracts a punishment of 10 years or more - If a charge sheet has been
filed against any person, attracting a punishment of 10 years or more, is disqualified from contesting
the elections, whether convicted or not.

Problems of Panchayati Raj Institutions (PRls) (Contd.)

• Massive Corruption - Massive corruption in the local bodies is a major problem in the local bodies. The
corruption is high and massive as no proper accounts are maintained for the local bodies and auditing
is also in a mess. Therefore, improper accounting and auditing result in massive corruption.
• Existence of parallel bodies and programmes -
a District Administration: Every district is a mini capital because most of the departments and
ministries which are at the State level are represented in the district by the field formations
(officers).
N For example - the Transport department is represented by District Transport Officer (DTO), the
Health Department is represented by District Health Officer (DHO) and similarly Education
� department by the District Education Department (DEO).
� These parallel bodies at the district level and local bodies given the same functions cause conflict
(/)
and overlapping responsibilities.
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� o The existence of bodies like Parastatals like DRDA, DUDA, DHSS - Agencies like District Rural
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z and Sanitization Society (DHSS) are parastatal bodies. These bodies are neither complete state
w nor completely non-state. They are wholly or partially owned by the government, autonomous or
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semi-autonomous, set up as cooperative societies or under statute/laws with a specific purpose in
mind.
0 Such bodies should be discontinued (as also recommended by the 2 nd ARC), as they have
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u overlapping responsibilities and functions with the district administration and PR ls.
(/) o Parallel Programmes like MPLAD & MLALAD - In 1993, Narsimha Rao Government enacted the
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MPLAD scheme in 1993, following which several states started with the MLALAD schemes. Local
al area development is the most important responsibility of the local bodies. Parallel programmes like
0
c:: these are out of the purview of these local bodies which again causes conflict between these two.
 The second ARC has recommended the abolition of these parallel programmes as well.
o Creation of additional parallel agencies such as water user groups - Some states, over and above
the existing parallel agencies, have created additional parallel agencies and bodies as well. Example
- Haryana Government established a water user group to manage water resources.
o NGOs -Many of the NGOs operate in the rural areas working in various areas such as health and
sanitation, nutrition, education etc. Parallelly, the Panchayats are also responsible for these
functions/developments. As both the NGOs and Panchayats use funds for the same area, there
should be a protocol to bring both of them together into a cooperative framework for convergence.
o Khap Panchayats - Especially, in villages of north India, there are caste panchayats called as the
Khap Panchayats which are elected which hampers the functioning of the local bodies.
• Increasing Criminality & Rampant use of money & muscle power in local body Politics - A lot of
violence and rivalry is reported from amongst the villages where these elections are held. Criminality
has increased in the local bodies' elections. The journey from thePanchayat Swabhiman (Pride) to
Panchayat Cynicism has indeed been very short.
• Domination of Senior Politicians - As per the provision of part IX (also part IX-A), the state by law can
provide representation in Panchayats above the village level, that is, Block Panchayats and Zila
Panchayats (MLAs andMPs at the local level). They sap the initiative and leadership of the local elected
nd
representatives which is problematic. The 2 ARC in this context has recommended to abrogate this
provision as it is leading to adverse consequences.
• Inadequate Organizational Structure - Though the responsibility and functional profile of the
Panchayats has increased but this has not matched up with adequate organizational development and
structure. 34% of the Gram Panchayats do not even have a secretariat or office building. The official
work is done from the residence of the chairperson of the Panchayats.
• Poor Devolution of Funds, Functions and Functionaries (3F) -
o The Funds given are inadequate and are tied funds. Panchayats are not given autonomy for the
usage of the funds but are given for specific purposes only which cannot be used on any other
(/)
matter/development.
�
o The Functions mentioned in the eleventh schedule (29 subjects) are not fully transferred to the �
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Panchayats. They have been inadequately devolved. u
o The Functionaries, which is the staff at the Panchayat level, is appointed and controlled by the z
State. There are frequent transfers of these functionaries with very small tenures. They are not w
under the control of the local bodies
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o The notion of Functionality: Even if the 3 Fs are properly devolved, then the notion of functionality
comes into the picture, meaning they do not have the capacity to use the 3 Fs properly. The training C
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to govern the 3 Fs is missing at the Panchayat level.
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o Devolution Index (0- 1): A score is assigned to every state in terms of devolution index ranging from (/)
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0 to 1, where a higher score means higher devolution. The devolution index has been divided into w
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two parts by the ministry of Panchayati Raj: al
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► Devolution in Policy: The powers devolved on the papers presented by the state governments. c::
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 ► Devolution in Practice: Based on the field survey, whether those powers have been devolved or
not.
The ranks are prepared separately on both parts. The states have ranked differently on both
Devolutions in Policy and Practice. And 92% of the states have a score of less than 0.5.

On the Whole...
Even after almost 30 years since the 73rd constitutional amendment act has been implemented, local bodies
still do not fully enjoy the constitutional status as a self-governing level of administration as perhaps enjoyed
by the local governments and central government.

• Local bodies are considered shadowy outliers in the system of government.

• Inadequate capacities: The capacities of the local bodies are inadequately built.
• The problem of "holding together" vs "Coming together federation": Coming together federation's
best example is the USA (independent colonies come together), while India is a holding together
federation. So, a strong centre has delegated and devolved the powers downward to the states and
states further do the same with the local bodies.
• Most Indians accept Centralized power: Since the very beginning, the notion of the nation has been in
the mind of Indians and accepting the Centralized power.
• No pressure on the government for Decentralization: There has never been any pressure on the
government to implement decentralization. The citizens may change the political party at the centre
and the state level, but they have not demanded decentralization and govern themselves through the
local bodies.
• Discourses framed in the narrow context of improving "Service Delivery": The existence of local
N
bodies is constitutional but the powers they get is from the state government. The state and the central
� government do not view these local bodies as separate independent tiers of government. Rather both
� the central and the state government has found a convenient way of implementing their schemes and
(/)
programmes through the local bodies. Hence, programmes drafted and framed by the central and
�
� state government are serviced and delivered through the local bodies. Thus, means that the local
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u bodies are used as "Service Delivery" channels for such schemes.
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w Election-Related Inadequacies
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• State government postpone elections - The state government postpones the elections by giving the
following excuses:
0 o Delimitation of Constituencies has not taken place and nor there is any delimitation commission for
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u the local bodies.
(/) o The reservation matrix has not been worked out by the state government.
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w o Natural Calamities are used as an excuse.
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al • State Election Commission (SEC) to block postponement blunted by:
0
c:: o Appointing pliant officers in SEC.
 o Denial of funds to the SEC.
o Denial to provide forces to conduct elections.
• Kishan Singh Tomar Case, 2006 - The Supreme Court has, in this case, cautioned the states not to
postpone the local bodies elections and not to indulge in such unconstitutional behaviour.

rd
Impact of 73 Amendment Act on Women's Empowerment
Factoids
• Over 3 million women contest elections across the country over a period of five years and almost 1
million women get elected.
• Participation of women in Gram Sabha has also increased (particularly in women-headed
Panchayats).
• Expenditure on women welfare schemes has also shown an increase (more increase in women­
headed Panchayats).
• Women headed panchayats have performed better in negotiating with the social evils (child
marriage, closure of liquor shops, etc.).
• The Panchayat Pati trend has also shown some decline in a few of the states. Women are gradually
beginning to discover their feet and voice in Panchayats. Their social status has improved as compared
to the past. This has led to a positive impact on gender relations.

Problems faced by Women

• Dual Responsibility - The gender stereotyping of the role is so sharp and particularly defined that
woman has to take care of all the household chores as well as her political life.
• Lack of Security - The lack of security inhibits many keen women who want to join local body politics
to stay away from it. Criminalization and violence in politics too inhibit them from joining local body
politics.
• Lack of information, knowledge, and illiteracy - The women lack information and knowledge and are
(/)
often illiterate. They do not have the capacity for the grass root level of democracy. To sign the official
�
documents, she is dependent on secondhand information which could lead to wrong decisions. �
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• Panchayat Pati - The concept of Panchayat pati or sarpanch pati or proxy sarpanch exists where the u
women are a proxy representative, and all the actual work is handled by her husband.
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• Lack of adequate exposure - In a democratic platform, the leader has to put across the views forcefully w
and assertively and make the arguments heard. In rural areas, where women are to veil in front of
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elders and not even allowed to speak, it becomes difficult to present her views assertively. This
restriction hinders her performance as a leader in the local bodies. C
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• Restrictive Qualification in states - States like Haryana have put educational qualification as a
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condition to contest the election. Few other states have 2-child norms which hamper her participation (/)
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in the election. The 2-child norm was upheld by the apex court in the Javed Case of 2003. w
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• Hardly get nominated or elected from general seats - Women get nominated or elected mainly from al
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the reserved seats for them and it is hardly seen that they are being nominated or elected from a c::
a.
 general seat.
• Impact of Rotational Policy - The rotational policy impacts the women. The rotation of such reserved
seats should be done after 2-election cycles, i.e., 10 years instead of 5-years. Two states Karnataka
and Tamil Nadu have adopted the rotation after 10 years.

Developmental impact of Panchayati Raj Institutions

Though the developmental impact of the PRls is uneven in India and there are variations across the states. A
few of the developmental impacts are as follows:
• Agriculture - In some states like Karnataka, the state government transferred some schemes from the
agriculture and animal husbandry department to the Panchayats and they failed miserably. The failure
was on account of a lack of technical expertise which was not transferred from the concerned ministry
to the local bodies.
Whereas in states like Gujarat and Tamil Nadu, PRls have been able to improve the agricultural
production in their areas.
• Weaker Section Development - The weaker section has been empowered by the silent revolution and
the expansion of the social base of politics in India and the rise of the newly enfranchised. Some states
have instructed the local bodies to set up dedicated committees amongst their members to look after
the needs of the weaker section. A few of these committees are the Darji Committee (Gujarat) and
Sadiq Ali Committee (Rajasthan) which found out that these respective states were unable to
address the needs of the weaker sections.
• Education - In many states, primary and secondary education has been devolved to the local bodies
and the picture here too is uneven across the states.
N Between political development and socio-economic development, the former has been better realized
than opposed to the latter.
�
� Finances
(/)
• Inelastic taxes - The taxes which have been given to the local bodies practically have no or very little
�
� yield such as boats, rickshaws, tea stalls and vehicles.
::I: • PRls do not make use of limited taxation power - They do not use their taxation power due to the fear
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z of backlash from the people who are closely in contact with the community.
w • State Grants uncertain, irregular, and tied - The grants which come from the state are generally
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uncertain, many times irregular and very often tied.
• No Market for loans - The PR ls has very restrictive borrowing powers which have to be approved by
0 the state governments. Hence, they do not have a market to borrow loans.
w
u • State Finance Commission (SFC) has been a near-complete disaster - The problems with the SFC
(/) are as follows:
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o Periodicity not maintained - The periodicity to set up SFC at the interval of 5-years has not been
al maintained by most of the states. Only four states have set up their 6th finance commission.
0
c:: o Inadequate survey of local finances - The SFC conducts an inadequate survey of the local bodies.
 This is beca use that there a re too m a ny loca l bod ies (logistica l issue to su rvey such a huge n u m ber of
panch ayats) a n d the a bsence of adequ ate m a i nten a nce of accou nts by the local bodies.
o Poor quality of members - The q u a l ifications of the mem bers of the SFC a re not mentioned a s a res u lt
the q u a l ity of the mem bers i n the SFC is poor. It is decided by the state legislature by law who a re
mostly servi ng b u reau crats a n d pol itici a n s and less often experts.
o The fate of recommendation - The recommendation of the S FCs is only advisory in n atu re a n d hence,
a l a rge n u m ber of recommendations a re rejected by the state government as opposed to the U n ion
Fina nce Com m i ssion (U FC) recommendation , which most of them a re a ccepted.
Also, those accepted by the State, a re not notified i n the state g azette a n d those notified a re l a rgely not
i m p lemented.
rd
o No synchronization with UFC - After the 73 amend ment a ct, one more fu nction was added to a rticle
280 of the constitution: the U FC wi l l a l so m a ke a recommendation as to how the consolid ated fu nd of
state govern ment ca n be augmented so that they a re able to fol l ow the recommendations of the state
fi n a nce com m ission.
But the problem is that there is no synchron ization between the SFC a n d U FC - both a re set u p at
d ifferent time, m a king it a l most i m possible to a d here to a ny of the recommendations by the U FC.
o Poor Quality of Reports - The q u a l ity of the SFC reports is poor i n q u a l ity. The recommendations a re
not i n m atch with the objective or preface of the report.
o Delay in submission of the reports and Action Taken Report (ATR) - There is no period icity a n d time
fra me i n s u b m itti ng the reports. The average delay i n I nd i a i n the subm ission of SFC reports a n d the
ATR is sixteen months.
o Global Sharing formula not used - The g lobal s h a ri n g fo rm u l a which is being used between the centre
and the state should also be used between the state a n d the local bod ies where a l l the taxes should be
s h a red (a certa i n p roportion) with the loca l bodies. But this is not done, and taxes a re s h a red o n ly
selectively.
o Tied nature of funds - Though the fu nds a re ava i l a ble to the loca l bodies, but most of them a re tied
(/)
fu nds which mean they ca n be used o n ly for a s pecific pu rpose o n ly and not as per the demands a n d
�
needs o f t h e P R ls. Close t o a n average, 93% o f t h e fu nds a re tied . Therefore, PRls have become the �
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instruments for implementation of the Centrally Sponsored Schemes (CSS) and the State­ u
Sponsored Schemes (SSS) .
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 LOCAL SELF GOVERN M ENT
- TH E M U N ICI PALITI ES
Background
Urban Space Management (towns and cities) has been neglected by both the centre and the state
government. Though 65% of the GDP of India comes from the Urban areas and are the principal driver of
growth still they are neglected. Even the committees and commissions for advising them on urban
development, appointed by both the centre and the states are very few as compared to same for rural India.
The first commission on the National Commission on Urbanization was established in 1985 which was
headed by Charles Correa. The recommendations of this commission were even included in part IX-A of the
th
constitution through the 7 4 amendment act 1992.

Part IX-A
Article 243 Q. Constitution of Municipalities -
( l) There shall be constituted in every State,-
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition
from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that aMunicipality under this clause may not be constituted in such urban area or part thereof
as the Governor may, having regard to the size of tile area and the municipal services being provided or
proposed to be provided by an industrial establishment in that area and such other factors as he may
deem fit, by public notification, specify to be an industrial township.
( There are almost five hundred plus industrial townships in India, which are being denied to have self­
governing municipalities. Also, Special Economic Zones (SEZs) which are set up under the special act of
Special economic Act, 2005, too do not provide for local bodies. Rather it provides for a Board of Approval
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w (BOA) consisting of bureaucrats and representatives of big corporates/real estates, etc.)
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:::i (2) In this article, a transitional area, a smaller urban area or a larger urban area means such area as the
� Governor may, having regard to the population of the area, the density of the population therein, the
0
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activities, the economic importance or such other factors as he may deem fit, specify by public
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I­ Once an area is termed as a transitional area and labelled as a Nagar Panchayat, it has to be done with
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w utmost caution as:
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z 1) The cost of Administration in Urban areas is high.
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l!) 3) The ongoing rural programmes may cease over the area.
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V) Also, there is no hierarchy in the Municipalities as there is in the P Rls as each - the Nagar Panchayat, the

j Municipal Council and theMunicipal Corporation are for different areas.

g
Article 243R. Composition of Municipalities
(1) Save as provided in clause ( 2 ), all the seats in a Municipality shall be filled by persons chosen by direct
election from the territorial constituencies in the Municipal area and for this purpose, each Municipal
area shall be divided into territorial constituencies to be known as wards.
(2)The Legislature of a State may, by law, provide-
(a) for the representation in a Municipality of:
(i) persons having special knowledge or experience in Municipal administration;
(ii)the members of the House of the People and the members of the Legislative Assembly of the
State representing constituencies which comprise wholly or partly the Municipal area;
(iii)the members of the Council of States and the members of the Legislative Council of the State
registered electors within tile Municipal area;
(iv)the Chairpersons of the Committees constituted under clause ( 5 ) of article 2435: Provided that
the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the
Municipality;
(b) the manner of election of the Chairperson of a Municipality.

Article 2435. Constitution and composition of Wards Committees, etc -

(l)There shall be constituted Wards Committees, consisting of one or more Wards, within the territorial
area of a Municipality having a population of three lakhs or more.
(2) The Legislature of a State may, by law, make provision with respect to­
(a) the composition and the territorial area of a Wards Committee;
(b) the manner in which the seats in a Wards Committee shall be filled.
(3) A member of a Municipality representing a ward within the territorial area of the Wards Committee
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shall be a member of that Committee. w
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(4) Where a Wards Committee consists of- ::i
(a) one ward, the member representing that ward in the Municipality; or �
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(b) two or more wards, one of the members representing such wards in the Municipality elected by the z::>
members of the Wards Committee, shall be the Chairperson of that Committee. �
(5)Nothing in this article shall be deemed to prevent the Legislature of a State from making any provision w
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for the Constitution of Committees in addition to the Wards Committees I-
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Article 243T. Reservation of seats �
(l)Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and z
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the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total w
number of seats to be filled by direct election in that Municipality as the population of the Scheduled
Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total LL
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population of that area and such seats may be allotted by rotation to different constituencies in a V)
Municipality. <(
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(2) Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for
 women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one third (including the number of seats reserved for women belonging to the Scheduled
Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every
Municipality shall be reserved for women and such seats may be allotted by rotation to different
constituencies in a Municipality.
(4)The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the
Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.
(5)The reservation of seats under clauses ( 1 ) and ( 2 ) and the reservation of offices of Chairpersons
(other than the reservation for women) under clause ( 4 ) shall cease to have effect on the expiration of
the period specified in article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of
seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of
citizens

Article 243U. Duration of Municipalities, etc

(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for
five years from the date appointed for its first meeting and no longer: Provided that a Municipality shall
be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a
Municipality at any level, which is functioning immediately before such amendment, till the expiration
of its duration specified in clause ( 1 ).
(3) An election to Constitute a Municipality shall be completed­
(a) before the expiry of its duration specified in clause ( 1 );
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w (b) before the expiration of a period of six months from the date of its dissolution: Provided that where
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:::i the remainder of the period for which the dissolved Municipality would have continued is less than
� six months, it shall not be necessary to hold any election under this clause for constituting the
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z:::, Municipality for such period.
� (4)A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration
w shall continue only for the remainder of the period for which the dissolved Municipality would leave
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continued under, clause ( 1 ) had it not been so dissolved.
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w Article 243V. Disqualifications for membership
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z ( 1) A person shall be disqualified for being chosen as, and for being a member of a Municipality:
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w (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to
l!) the Legislature of the State concerned: Provided that no person shall be disqualified on the ground
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V) (b) if he is so disqualified by or under any law made by the Legislature of the State.
j (2) If any question arises as to whether a member of a Municipality has become subject to any of the
g disqualifications mentioned in clause ( 1 ), the question shall be referred for the decision of such
 authority and in such manner as the Legislature of a State may, by law, provide.

Article 243W. Powers, authority and responsibilities of Municipalities, etc Subject to the provisions of
this Constitution, the Legislature of a State may, by law, endow
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as
institutions of self-government and such law may contain provisions for the devolution of powers and
responsibilities upon Municipalities, subject to such conditions as may be specified therein, with
respect to:
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them
including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the
responsibilities conferred upon them including those in relation to the matters listed in the Twelfth
Schedule

Article 243X. Power to impose taxes by, and funds, of, the Municipalities The Legislature of a State may,
by law-
(a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance
with such procedure and subject to such limits;
(b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the State Government
for such purposes and subject to such conditions and limits;
(c) provide for making, such grants in aid to the Municipalities from the Consolidated Fund of the State;
and
(/)
(d) provide for constitution of such Funds for crediting all moneys received respectively, by or on behalf of w
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the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the ::i
law. �
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Article 243Y. Finance Commission �
(l)The Finance Commission constituted under article 243 1 shall also review the financial position of the w
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Municipalities and make recommendations to the Governor as to- I-
(a) the principles which should govern: I­
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(i) the distribution between the State and the Municipalities of the net proceeds of the taxes, duties, �
tolls and fees leviable by the State, which may be divided between them under this Part and the z
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allocation between the Municipalities at all levels of their respective shares of such proceeds; w
(ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by,
the Municipalities; LL
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(iii)the grants in aid to the Municipalities from the Consolidated Fund of the State; (/)
(b) the measures needed to improve the financial position of the Municipalities; <(
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(c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance
 of the Municipalities.
(2) The Governor shall cause every recommendation made by the Commission under this article together
with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of
the State.

Article 2432. Audit of accounts of Municipalities

The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by
the Municipalities and the auditing of such accounts.

Article 243-ZA. Elections to the Municipalities.-

( 1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of,
all elections to the Municipalities shall be vested in State Election Commission referred to in Article
243-K.
(2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision
with respect to all matters relating to, or in connection with, elections to the Municipalities.

Article 243-28. Application to Union territories.-

The provisions of this Part shall apply to the Union territories and shall, in their application to a Union
territory, have effect as if the references to the Governor of a State were references to the Administrator of
the Union territory appointed under Article 239 and reference to the Legislature or the Legislative
Assembly of a State were references in relation to a Union territory having a Legislative Assembly, to that
Legislative Assembly:
Provided that the President may, by public notification, direct that the provisions of this Part shall apply to
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w any Union territory or part thereof subject to such exceptions and modifications as he may specify in the
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z:::, Article 243-2C. Part not to apply to certain areas.-

� (1) Nothing in this Pan shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas
w referred to in clause (2), of Article 244.
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(2) Nothing in this Part shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill
I­ Council constituted under any law for the time being in force for the hill areas of the district of
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� Darjeeling in the State of West Bengal.
z (3) Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this
a::
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l!) modifications as may be specified in such law, and no such law shall be deemed to be an amendment of
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j Article 243-20. Committee for district planning.-

g ( 1) There shall be constituted in every State at the district level a District Planning Committee to
 consolidate the plans prepared by the Panchayats and the Municipalities in the district and to prepare a
draft development plan for the district as a whole.
(2) The Legislature of a State may, by law, make provision with respect to­
(a) the composition of the District Planning Committees;
(b) the manner in which the seats in such Committees shall be filled:
Provided that not less than four-fifths of the total number of members of such Committee shall be
elected by, and from amongst, the elected members of the Panchayat at the district level and of the
Municipalities in the district in proportion to the ratio between the population of the rural areas
and of the urban areas in the district;
(c) the functions relating to district planning which may be assigned to such Committees;
(d) the manner in which the Chairpersons of such Committees shall be chosen.
(3) Every District Planning Committee shall, in preparing the draft development plan,­
(a) have regard to-
(i) matters of common interest between the Panchayats and the Municipalities including spatial
planning, sharing of water an other physical and natural resources, the integrated development
of infrastructure and environmental conservation;
(ii) the extent and type of available resources whether financial or otherwise;
(b) consult such institutions and organisations as the Governor may, by order, specify.
(4)The Chairperson of every District Planning Committee shall forward the development plan, as
recommended by such Committee, to the Government of the State.

Article 243-ZE. Committee for Metropolitan planning.-

( 1) There shall be constituted in every Metropolitan area Metropolitan Planning Committee to prepare a
(/)
draft development plan for the Metropolitan area as a whole. w
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(2) The Legislature of a State may, by law, make provision with respect to­ ::i
(a) the Composition of the Metropolitan Planning Committees; �
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(b) the manner in which the seats in such Committees shall be filled: Provided that not less than two­ z::>
thirds of the members of such Committee shall be elected by, and from amongst, the elected �
members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area in w
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proportion to the ratio between the population of the Municipalities and of the Panchayats in I-
that area. I­
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(c) the representation in such Committees of the Government of India and the Government of the State �
and of such organisations and institutions as may be deemed necessary for carrying out the z
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functions assigned to such Committees; w
(d) the functions relating to planning and co-ordination for the Metropolitan area which may be
assigned to such Committees; LL
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(e) the manner in which the Chairpersons of such Committees shall be chosen. (/)
(3) Every Metropolitan Planning Committee shall, in preparing the draft development plan, <(
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(a) have regard to:
 (i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area;
(ii) matters of common interest between the Municipalities and the Panchayats, including co­
ordinated spatial planning of the area, sharing of water and other physical and natural resources,
the integrated development of infrastructure and environmental conservation;
(iii)the overall objectives and priorities set by the Government of India and the Government of the
State;
(iv)the extent and nature of investment likely to be made in the Metropolitan area by agencies of the
Government of India and of the Government of the State and other available resources whether
financial or otherwise;
(b) consult such institutions and organisations as the Governor may, by order, specify.
(4)The Chairperson of every Metropolitan Planning Committee shall forward the development plan, as
recommended by such Committee, to the Government of the State.

Problems with Grass Root Planning Bodies

• Delays in several states in setting DPCs - There has been a delay in many states in setting up the
District Planning Committees (DPCs). In the state of Gujarat, for example, the DCP was set up in 2006,
fourteen years after the 74th amendment act of 1992.
• Defunct Entities - In many states, though the local bodies have been set up, but they are on paper only.
Real and effective meetings are rarely held, those held are fictitious meetings -making these bodies
defunct and moribund in nature. One such example is of Himachal Pradesh, where various DPCs were
set up, but only on paper, and were in the state of moribund.
• Lack of Expertise - As most of the members are elected - 4/Sth in case of DPCs and 2/3rd in case of
MPCs, there is a lack of expert members who could look into the specific issues.
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� over the bodies.
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z:::, • Lack of Financial Decentralization - With only 7% of untied funds available to the committees,
� planning by the local bodies is considered to be a hollow exercise. It is difficult to address the felt needs
w and problems without financial resources decentralization. Therefore, in the absence of financial
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decentralization, planning decentralization is a wasteful exercise.
I­ • Rural-Urban Integration not Achieved - The rural-urban integration has not been achieved by the
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� grass-root level planning bodies, especially at the block level as these blocks consists of small towns
z with surrounding villages and rural areas.
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l!) Types of Municipal Government in India

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...J The municipal governance at the grass root level is different from the centre and state level governance.
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V) Different patterns are followed in various states which are as follows:
j • Bombay Pattern -
g Most of the states in India follow the Bombay pattern. It is based upon the Executive-Deliberative
 Dichotomy - The executive and deliberative body are kept separate at the municipal level. The real
executive powers of the centre and the state lies with the Prime Minister and the Chief Minister
respectively, but this is not the case with the Mayor of the Municipal Corporation. Rather the Municipal
Commissioner vests with many such powers and he is the head of executive administration of the
municipality. Meaning that the Mayor is a presiding officer and the real executive power is with the
Municipal Commissioner.
Also, the appointment, posting and transfer of the Municipal Commissioner is at the will of the state
government and people cannot remove him.
• Howrah/Calcutta Pattern -
In this type of pattern, the Mayor is not the presiding officer of the corporation rather he is the elected
representative. The real executive powers reside with the Mayor. The person who is chosen as the
Municipal Commissioner works directly under the Mayor here.
Therefore, if these local bodies are to perform effectively and to have democratic political
accountability towards the people, then Mayor should be given the real-executive powers
(recommended by the second ARC as well).

Problems of Urban Administration

• Haphazard and unplanned Urbanization - the urbanization is haphazard and unplanned coupled
with:
o Unmitigated migration: Migration from rural areas to urban areas, in search of better opportunities.
o Overcrowding of cities: This migration is leading to the overcrowding of the cities
o Crippling Infrastructure: Due to the overcrowding of the cities, the city infrastructure is almost on
the verge of collapse. Sufficient buildings, housing facilities, water and sanitation, electricity supply,
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etc. are in shortage. w
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o Increasing Slums: This shortage leads to an increase in the number of slums in the city. These slums ::i
are used as a vote bank during the elections. �
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• Increasing health-related problems - The urban administration is facing increasing health-related z::>
problems such as dengue every year in the city of Delhi. The administration ignores such health­ �
related issues which are occurring regularly in urban space. In cities, substantial privatization of clinical w
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health services has taken place, meaning more people are going to private clinics rather than the I-
government health facilities available to them. Community health is ignored by the urban I­
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administration. �
• Increasing Poverty - The kind of conditions the urban poor live in most of the cities is worse than the z
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rural poor.
• Traffic Congestion - Due to the increase in the population, traffic congestion is increasing too.
To avoid this many cities have tried Pedestrianisation of many paths -meaning vehicles allowed only LL
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up to a certain point, and rest in a no vehicle zone. Example Chandni Chowk. V)
The other way is Congestion levy- A tax on the already congested area for those contributing to the <(
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congestion.
 Public Transportation only - Allowing only public transport in certain areas and no private vehicles.
Exponentially increase the Parking Fee - Increasing the parking fees to motivate people to use public
transport wherever possible.
• Pollution of all kinds - Air pollution, land degradation, noise pollution is impacting the urban areas the
most.
• Power and water shortages - Power and water shortages have been the problems in most of the
cities.
• Rising Crimes, especially against women - The crimes such as chain snatching, etc. have been
reported from many cities. Women safety is also an issue.
• Massive corruption - Corruption at the municipal level is very high which is a major problem.
• Poor devolution of funds, functions and functionaries (3Fs) - There is excessive control of the state
government and no effective devolution of the 3 Fs.
• Inadequate Capacity Building - The elected and appointed functionaries are not well trained due to
the absence of adequate capacity building.
• Absence of Urban way of Life - The Urban way of life is absent in many cities. People lack adequate
etiquette to call them as urban population (Comparatively more educated, literate and aware). There is
no pressure from the people over the municipal government to perform and deliver their function in a
better way.
• Lack of Quality Leadership - There is a lack of quality leadership in municipal areas. The mayor is only
a presiding officer in most of the states.
• The focus shift on rural areas - The focus of political leaders is mainly on the rural areas, ignoring the
urban administration.
• Institutional Jungle - There are many parallel bodies operating at the municipal level in the urban
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w centre often with overlapping functions and responsibilities, much like the ones at the local rural level.
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:::i For example, in Delhi:
� o Delhi has three Municipal corporations for providing local services.
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z:::, o Some powers of local administration are with the Delhi Government.
o In Delhi, some powers such as law and order and land management are with the Central
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o Also, there are certain specialised bodies like the Delhi Development Authority (DDA) which
I­ exists for land management.
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 LOCAL SELF G OVERN M ENT - RECO M M E N DATIONS
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� O F TH E 2 N D AD M I N ISTRATIVE REFORMS CO M M ISSION

Recommendations on Panchayati Raj Institutions (PRls)

The Second Administrative Reforms Commission (2 nd ARC) has given some recommendations on improving
the functions of the local bodies. They are as follows:
• Replacing the word 'may' with 'shall' in article 243 G & 243 W - The 2 nd ARC has recommended that
the words 'may' which indicates 'optional', with the word 'shall', which means 'binding'.
z • Legislative Council in all states - There should be a legislative council in all states as per the 2 nd ARC
0
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� be elected by local bodies to make it an effective federal institution (on the similar lines as done for the
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u • Local Legislators shall not be the members - The local legislators should not be made the members of
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� the local bodies-the PRls and the Municipalities.
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0:: be done on the recommendation of a committee consisting of Chief Minister of the State, Speaker of
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> Legislative Assembly and Leader of Opposition in the Legislative Assembly.
o Task of Delimitation & Reservation should be given to State Election Commission - The task of
delimitation of the constituency and the reservation of seats for weaker sections should be given to
z the state election commission and not the state legislature.
� o National Platform for SEC-ECI Interaction - A platform should be established where the State
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<( Election Commission (SEC) and the Election Commission of India (ECI) can interact and exchange
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the experience periodically. This way one SEC can learn from other SECs and the ECl's experience
w and follow some best practices.
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f­ • A draft Model law on devolution -Central government should draft a model law on devolution which
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z o Activity Mapping: Framing the broad policy or the programme framework, which is suitable to the
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respective state as per the state needs and requirements. Meaning unbundling the functions of the
C programme as per the corresponding activities to be performed which is called the activity map.
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w This would provide which activity has to be performed by which level of government - either the
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� state government or the local government, etc.
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o Principle of Subsidiarity: Once the activity map has been prepared, assigning those activities to
0:: which level of government can be decided based upon-
f­ ► Homogeneity vs Heterogeneity: If the programme has to be implemented uniformly
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� (homogenously) across the district then the responsibility should be in the hand of the District
z collector. If the programme is to be implemented heterogeneously then it should be in the hand of
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l!) ► Economies of Scale: The scale of the scheme is seen -depending upon economies of scale the
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...J scheme must be implemented either by the top-level government or the government at the level
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j ► Externalities: If Complete freedom is given to the bottom level of government i.e., Gram
g Panchayat, and it leads to negative or adverse externalities in the neighbouring villages, then
 considering such extern a l ities, the task of i m plementation should be g iven to the top - l evel rather
th a n the bottom leve l .
• Assembly electoral rolls t o b e used for local elections - A s a lot o f discrepa ncies have been fou n d i n
nd
t h e el ecto ra l rolls o f t h e local bodies' elections, i t has been advised b y t h e 2 A R C t o u s e t h e asse m b ly
electora l rol l s for the same.
• Rotation after two terms - The rotation for the reserved seats for the wea ker section should be done z
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after two terms instead of the one-term rotation cu rrently fol l owed . vi
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• State Finance Commission (SFC) Report and Action Taken Report (ATR) to be submitted within 6 �
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months - The SFC report a n d the ATR should be s u b m itted with i n 6 months from the date from which 0
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the SFC subm itted its report to the govern m e nt a n d m a ke this as a m a n d atory p rovision. (/)

• Standing Committee of Legislative Assembly on Local Bodies - A dedicated sta nding com m ittee of :l:
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the legisl ative asse m b ly of the state should be there, dealing with the loca l bodies. It should i nvestigate LL
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how the loca l bodies perform, addressing the g rieva nces of the local bodies, etc. An n u a l Reports c:::
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should be p resented by the com m ittee which should become the base fo r fu rther decentra l ization i n >
t h e cou ntry.
• Separate Local bodies ombudsman - S i m i l a r to the position of the Lokpal a n d Lokayu kta at the centra l
a n d the state level respectively, ombudsman for the local level too s h a l l be appointed . It should be z
em powered to deal with the co m p l a i nts and g rieva nces of corru ption agai nst both the elected a n d
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a p poi nted fu nctionaries o f t h e l o c a l bodies. �
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• Vertical Approval of Budget to be discontinued - The budget of the local bodies should not be s u bject z
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to a p p rova l by the next higher tier of local bodies a n d the state govern ment. As the state govern m e nt is w
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not s u bject to the approva l of the centra l govern ment, the same should be the case with the local I­
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bodies as wel l . 0
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• Abolish Parastatals and Programmes like MPLA DS - T h e pa rastata l bodies which work para l lelly z
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with a l ready existi ng loca l bodies such as District R u ra l Development Agency ( D R DA) , District U rban
Development Agency ( D U DA) should be abolished. Also, the para l lel p rogra m mes which overl a p with Cl
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the responsibilities of loca l bodies such as M P LADs and M LALADs should be a bolished.
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• The state government should not have power to: :l:
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o Suspend resol ution of Loca l Bodies u
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o Suspend/Remove i n d ivid u a l mem bers c:::
o Su persede (prematu re dissol ution) the PRls. 1-­
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• Local Bodies should recruit their own personnel and determine their condition of service - As the
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centra l and state govern ment can recru it their own personnel, the loca l bodies too, on s i m i l a r l i nes be z
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a l l owed to recruit their own perso nnel and also determ ine thei r condition of service.
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As such in I nd i a we ca n have 3 systems which can be i m plemented for staff recruitment: C)
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o Integrated - This is the existi ng system , where the loca l bodies a ppoi ntees a re the state ...J
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govern ment a p poi ntee. These a p poi ntees owe thei r responsi b i l ity to the state. H ence, they a re the (/)

common staff th at works u nder the state government and local bodies as wel l . �
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o Unified - Some states h ave a u n ified system . F o r exa m ple, t h e state o f Rajasth a n has a cad re ca l led
 Rajasthan Municipal Service. Recruitment here is done by the Rajasthan state government, and the
people recruited through this work in the municipalities only (not transferable to state level, but
municipalities only).
o Separate - The 2 nd ARC recommended, that local bodies recruitment should be a separate cadre
and separate service.
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� below mentioned are some unique recommendations for Urban local bodies.)
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� • Set up the 2 nd National Commission on Urbanization - The 2 nd ARC recommended to set up a second
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0:: Urbanization now. The first was set up in 1985.
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> • Four-tier Municipal Set-up - The 2 nd ARC has recommended the four-tier of municipal setup. This was
to increase the people's participation in urban local bodies.
ti; o It is recommended to set up Area Sabha (analogous to Gram Sabha in rural areas). An area can be
z defined as a territory covering one or two polling booths.
� o The area Sabha members would elect, amongst themselves, the Area Committee. Area Committee
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<( should choose its own chairperson.
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o The chairpersons of each area committee should be the ex-officio members of the Ward
w Committee. Ward Committee provision is already mentioned in the part IX-A of the constitution.
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f­ o Over the top, the Municipal Corporation should exist.
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0 • Mayor to be elected directly - The Mayor should be a directly elected representative and should be
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z conferred with real executive powers. The mayor should be outside the Municipal Corporation, having
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its own mayor-cabinet.
C • Representation to non-residents stakeholders - The non-resident's stakeholder (residing in one
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� working area) should be given representation in the local municipality so that their voice too can be
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heard.
0:: • Separate ward committee for each ward - The provision of one ward committee for two or more
f­ wards should be removed and there should be mandatorily one ward committee for each ward.
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z Local Body Finances and Union Finance Commission
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w The Union Finance Commission (UFC) has been recommending on improving the finances of the local
l!) bodies, both at the urban and rural level.
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...J Improvement of local body finances has been a term of reference (ToR) of the UFC since the Xlth Finance
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Vl Commission.
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Also, the 1 11\ 12 1\ 131\ 141\ and the 15th Finance Commission, all have provided for separate grants for local
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g bodies, over and above the tax share of the states from the centre. In fact, the 13th FC recommended to give
Rs. 87,519 crores in two parts:
o Basic Grants (without conditionalities)
o Performance Grants-based on certain conditions to be fulfilled. There were six conditionalities for the
PR ls and nine for the ULBs.

State Governments Views z

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Before the finance Commission gives its recommendations, it engages in several consultations with Union vi
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government ministries, the state governments, etc. The consultation taken by the 14th Finance Commission �
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by the states are as follows: 0
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• Local Body grants should be part of the divisible pool - The states recommended to the FC that the (/)

local bodies should be given the grants from the divisible pool of the centre. Some states demanded as �
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much as 5%. This would be beneficial for local bodies because, as the centre's revenue would increase, 0
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the share for the local body too would increase. c:::
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• Less or no conditionalities - The conditionalities to be fulfilled every year for the performance grants >
should be removed or should be reduced. As it is difficult to fulfil all the conditionalities.
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Fourteenth Finance Commission Recommendations: z
After all the consultations, the 14th finance Commission came up with the following recommendations: �
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• Grants of Rs.287,436 crores - Grant to the tune of Rs. 287,436 crores, comprising of Rs. 200,292 for <(
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the PRls (only for Gram Panchayats) and Rs.87, 143 for the Urban Local Bodies (ULBs). z
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• Grants in two parts - The grants would be divided into two parts: Basic and Performance Grants. w
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PRls ULBs 0
BASIC GRANTS 90% 80% (/)
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PERFORMANCE GRANTS 10% 20% 0

They recommended the usage of these basic grants in the provision and improvement of the basic Cl
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services such as water supply, sanitation, sewerage, local school buildings, street lighting, maintenance, w
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and construction of roads, etc. �
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They also recommended the conditionalities for the Performance grants- u
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• Accounts Submission - Fully audited accounts to be shown and submitted for not earlier than two­ c:::
year preceding the year in which the local body is seeking the performance grant. 1-
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• Show an increase in own revenue collected over the previous year. w
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• Service level benchmark - Indicating services to be provided to the citizens annually. z
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• Trust-based Approach - The 14th Finance Commission recommended that the local bodies and states C)
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should not impose additional conditionalities in the devolution of grants to the local bodies. ...J
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 LOCAL SELF GOVERN M ENT - RECO M M EN DATIONS
� OF TH E FI NANCE COM M ISSION
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State Finance Commission (SFC) Proposals

The Union Finance Commission before giving its recommendations also consulted the SFCs to give its
proposals. These proposals were:
• National Platform for Interaction between SFCs - There should be a national coordination platform,
on which regularly, all the SFCs should meet and interact. This interaction would result in the exchange
of views, ideas and experience and would be a mutually beneficial exercise.
• Simplification of Account formats - As accounting itself is technical in nature, a difficult format of
accounting leads to delays. So, the SFCs suggested simplifications of the accounting format.

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XIV Finance Commission Recommendations
The recommendations of the 14th Finance Commission are as follows:
• Strengthen the SFCs through -
z a Timely constitution of the SFCs
0 o Providing proper administrative support
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� o Providing adequate resources
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� o Timely submission of the report of SFCs along with the action taken report to the respective
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<z Recommendations with respect to Accounts and Audits
u:::: Accounts are important because with the help of proper accounts one can ascertain the financial status. It
w also helps to unearth the financial scams and financial mismatches with the help of auditing of the accounts.
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f­ Importance of Accounts -
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b) Helps in the realistic financial assessment.
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Maintenance of Accounts and entrusting technical guidance and supervision over local bodies to CAG was
C two of the conditionalities that the state must fulfil to avail Performance grant (as mentioned by the 13th
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w Finance Commission). Almost 26 states had fulfilled this condition (as found by the 14th Finance
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� Commission).
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c:: XIVh Finance Commission Recommendations
f­ • Continue with the technical guidance of CAG - The 14th Finance Commission recommended
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� continuing with the technical guidance of the CAG to the local bodies as suggested by the 13th FC as
z well.
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w • Comprehensive preparation of Accounts - The accounts should be comprehensive, accounting for all
l!) the revenue and the expenditure.
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(/) XIVh FC recommendations on Local Bodies taxes

j • Property Taxes - If the property tax is effectively implemented then it can become the mainstay of the
g local body taxes, hence, their revenue.
Issues:
o Some states have not devolved it to the local bodies by the state governments.
o Though the majority of the states have devolved this power but, in some states, rules have not been
formed for its proper administration and its implementation.
o Rates of the property tax are not revised periodically.
o A lot of exemptions are given in the property taxes to the property holders. Also, the central and
state government's offices/buildings are constitutionally exempted from property tax.
o Corruption.
o Inadequate database on the property.
o Lack of political will. As most of the local bodies have been subject to elite capture - where the elite
group gets elected to the local bodies. They are the section that owns the most property, so
effectively taxing property becomes difficult.
o Annual Rental Value (ARV) Basis: The taxes levied are based on the annual rental value of the
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property, which can be manipulated easily. It is not a rational basis for collecting the property tax. 0
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Suggestions by 14 FC on Property tax �
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(a) Fast Track property tax reforms u
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(b)Minimal Exemptions: Exemptions should be minimal and if exemptions are not rational, the cost u
shou Id be borne by the state.
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(c) Regular revision of property tax rates.
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(d) Plinth Areas Basis: The property tax should be based upon the plinth area (covered and built-up LU
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area of the property), in addition to other factors like quality of services, the quantum of services, etc.
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• Vacant Land tax - The 1 4 FC suggested to tax the vacant land area or vacant plots to keep that land 0
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vacant. Most of the state's governments are not levying this tax.
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• Betterment Tax - Any public improvement being done by the government which leads to an
appreciation in the price of the asset, on this increased price, a tax should be levied, which is called as 0
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Betterment tax. LU
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• Advertisement Tax - Advertisements on the hoardings, on the walls, public transport, etc. should be �
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given to local bodies which would be a good source of revenue for the local bodies. It is more relevant to u
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the urban body. c:::
• Entertainment Tax - This tax has been given to local bodies, but the exemptions are often enforced on 1-
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such taxes by the state government. Such exemptions should be compensated by the state. Also, the
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domain of taxes should be expanded, such as on theme parks, boat rides, cable TV, etc. z
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• Tax on professions under Article 276 - Under article 276, there is a cap of Rs.2, 500 per annum on the
profession tax, which is too less. It was last revised in 1988 to Rs. 2, 500 from Rs. 250 earlier. Therefore,
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now this article should be amended to Rs. 12,000 per annum. Along with this amendment, the ...J
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parliament should also make an amendment that further amendment/subsequent changes to change (/)

in this amount can be done by a law of parliament only and there would not be a need to amend the
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constitution in future.
 Non-tax Sources
• Common productive assets - The common productive assets such as ponds, orchids, etc. could be
used for regular revenue by letting interested persons to beautify it/transform it productively, on
payment of some annual fees. Hence, the 14th FC recommended to developing these common
productive assets to the local bodies and revising such fees regularly.
• Share of Cess or Royalty on minor minerals - The 14th FC found that only a few states share the Cess
or royalty on minor minerals with the local bodies and the usual full amount is not transferred, very
often with delays. Mining puts a disproportionate burden on local infrastructure and the environment;
therefore, the share of such royalty should be shared with those local bodies under whose jurisdiction
the mining takes place.
• Service charge on government property - As per articles 285 and 289 of the constitution, the
offices/buildings of the central and state government are exempted from the taxes. But these
z properties are availing all the services of the municipal bodies, are exempt from taxes. Hence, 14th FC
0 recommends centre and state to work out and pay some service charges to compensate the local
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� bodies instead of the taxes.
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u Article 285. Exemption of property of the Union from State taxation
w • The property of the Union shall save in so far as Parliament may by law otherwise provide, be exempt
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<z from all taxes imposed by a State or by any authority within a State.
u:::: • Nothing in clause ( 1 ) shall, until Parliament by law otherwise provides, prevent any authority within a
w State from levying any tax on any property of the Union to which such property was immediately
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f­ before the commencement of this Constitution liable or treated as liable, so long as that tax continues
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Article 289. Exemption of property and income of a State from Union taxation
C • The property and income of a State shall be exempt from Union taxation.
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w • Nothing in clause ( 1 ) shall prevent the Union from imposing, or authorising the imposition of, any tax
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� to such extent, if any, as Parliament may by law provide in respect of a trade or business of any kind
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carried on by, or on behalf of, the Government of a State, or any operations connected therewith, or any
c:: property used or occupied for the purposes of such trade or business, or any income accruing or arising
f­ in connection therewith.
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• Nothing in clause ( 2 ) shall apply to any trade or business, or to any class of trade or business, which
z Parliament may by law declare to be incidental to the ordinary functions of government.
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l!) Article 285 and 289 together are called as Immunity of Instrumentalities.)
u.. • Municipal Bonds - This can be used as a source of additional funds and revenue generation. But the
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(/) 14th FC found that only a few cities (in 10 states) are allowed the exposure of the municipal bonds -
j such as Nagpur, Nashik, Ludhiana, etc. has done it, mostly tier I municipalities. Therefore, it
g recommended that this exposure should not be confined to tier I municipalities but to municipal
 councils and Nagar Panchayats as well.
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(2 ARC recommendation on Local Finances - For additional revenue generation, big municipalities can
set up municipal public sector enterprises - such as local municipal bus services.
It is also recommended to enhance the fines for civic offences such as spitting, littering public spaces, etc.
and they should be devolved to local bodies.)

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The Fifteenth Finance Commission (15 FC) Recommendations
Fact Sheet:
• In India, there are around 2.6 Lakhs rural local bodies (including gram panchayats, block panchayats
and Zila panchayats).
• India has:
a 206Municipal Corporation
a 1683Municipal Councils
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a 24 1 1 Nagar Panchayats 0
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• Finance Commission Grants have been increasing: (/)
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a 1 3 FC - Rs. 87, 5 1 9 crores �
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a 1 4 FC - Rs. 2,87, 536 crores u
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• Amount disbursed has fallen short of allocation: u
a Rural Local Bodies - S ta 18% of total dues,
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a Urban Local bodies - ! O to 18% of total dues.
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Consultations by the 15 FC I­
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Consultations are held every five-year as the FC is reconstituted after a term of five-year. 0
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• Ministry of Panchayati Raj: It suggested for -
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a Increasing the PRI grants to rupees ten lakh crores
a Additional all India grants for Rs. 12,000 crores for office buildings. 0
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• Ministry of Housing and Urban Development Affairs: It suggested for - LU
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a It requested to increase Urban Local Bodies Grants fourfold to 3. 5 crores. �
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• Environment ministry: It suggested providing for specific air quality improvement grant for Million u
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Plus cities. c:::
• Finance ministry: Timely submission of SFC reports should be a mandatory condition for availing 1-
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grants.
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• Ministry of Women and Child Development: It suggested for - z
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a 30% of Gram Panchayats budget should be earmarked for women-centric programmes (Gender
Budgeting's aspect).
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a Mahila Sabha - a separate Sabha for women who are 18 years and above. ...J
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• Ministry of tribal Affairs: It suggested for - (/)

a Excluded areas (excluded from part IX and IX-A) should also be covered under the grants. <{
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a Excluded Areas:
 • Schedule V exempted from part IX-A.
• Schedule V I which exists in 4 states is exempted.
• Nagaland, Mizoram, Meghalaya are exempt from part IX.
• Manipur Hill Areas are exempt from part IX.
• Darjeeling Gorkha Hill Council is exempt from part IX and part IX-A.

(Note: The 13th FC had provided grants for excluded areas, but the 14th FC discontinued them.)

• State Governments: Various state governments have suggested for-

a Demand for a percentage from the divisible pool for the states to be given to local bodies.
o All 3-tier should get grants.
• Ministry of Defense: It suggested the grants for the cantonment boards. As all local bodies work and
z are governed under the state government, except for the cantonment board (military areas), they are
0 administered by the Union Government, under the Ministry of defence. These cantonment areas,
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� established under the cantonment Act of 1924, do all the functions, which are usually fulfilled by other
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� local bodies such as municipalities. Hence, they should be given grants as well.
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u 1 5 Finance Commission Recommendations
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<z The award period for the 15th FC is 202 1 to 2026. It came out with an interim report for the period of 2020-
u:::: 202 1. Various recommendations of the commission are as follows:
w • All states that have not set up SFC must do so and submit it by March 2024, failing which subsequent
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0 • Grants- the grants have been divided into five parts:
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z o Rural Local Bodies
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o Urban Local Bodies
C o Grants for health, channelize through local bodies
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w o Performance grants for incubation of new cities
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� o Grants for setting up shared municipal services centres.
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u (The total quantum of grants for the above five is Rs. 4,36,36 1 crores, which is fixed, spread over the five­
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f­ Details:
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w i) Rural Local Bodies- Grant of Rs. 2,36,805 crores which shall cover the excluded areas as well.
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z This grant would be available to all the 3-tier, in the following proportion:
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o Not less than 70% and not more than 85% for Gram Panchayats
l!) o Not less than 10% and not more than 25% for Block Panchayats
u.. o Not less than 5% and not more than 150/o for Zila Panchayats.
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(/) (Condition for availing the whole grant: - Online availability of Provisional accounts of the previous year

j and fully audited accounts of the year before the previous year.)
g The division of these grants shall be: -
 o 40% untied
o 30% for drinking water, rainwater harvesting and water recycling.
o 30% for sanitation and maintenance of Open Defecation Free (ODF) status.
ii) Urban Local Bodies - Grant of Rs. 1,2 1,0SS crores.
It recommended that Urban areas be categorized as:
o Million Plus Cities (MPC) is referred to as category-I.
o Other than MPCs referred to as category-II.

Conditions for availing the whole grants:

• Online availability of Provisional accounts of the previous year and fully audited accounts of the year
before the previous year.
• The state government has to notify floor rates of property tax.
• Municipalities should be able to show an increase in their own property tax collection at least equal to
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the average annual growth rate of State's Gross domestic product (GSDP).) 0
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The division of these grants shall be: �
• Million Plus Cities Challenge Fund (MCF): The overall funds are Rs. 38, 196 crores for around fifty plus 0
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MPCs. u
o 1/3rd to be used for improving ambient air quality. z
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o Remaining for basic services such as drinking water, rainwater harvesting, water recycling, z
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• Grants for other than Million Plus Cities: The total grant is Rs. 82,859 crores which are divided further I­
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as-40% of the funds as untied and the remaining 60% for the improvement of basic services. 0
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• Cantonments Boards (CBs) : Set up under the Cantonment Act of 1924.
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• 62 CBs in India are spread across 17 states and 2 UTs (Delhi &Jammu and Kashmir).
• Accounts for 0.56% of the total Urban Population. 0
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• The 15th FC has recommended State governments while deciding the share of category- II cities in the LU
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state, should also allocate the grants on a population basis to the CBs as well. �
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Timely release of Grants: c:::
• The centre should release these grants in two instalments in a year. 1-
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• State governments should transfer the same within 10 days period, failing which the state government LU
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should pay interest to the Local Bodies for each day of delay. z
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iii) Grants for health channelized through Local Bodies - C)

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a Rs. 70,05 1 crores for improving local health infrastructure. ...J
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o Health is a subject in both Schedule XI and Schedule XII. (/)

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iv) New Cities Grants - Performance-based challenge fund of Rs. 8000 crores for incubation of 8 new g
 cities in 8 different states. The Ministry of Housing and Urban Affairs (MoHUA) would decide these
cities based on inter-state competition. The winners should be decided byMoHUA by December 2022.
v) Municipal Shared Service Centre - Setting up a municipal shared service centre for which grant of Rs.
450 crores have been given. This is for smaller municipalities which could be composed into one
cluster, and a common staff could be given to them, to avoid a shortage of staff.

vi) Profession Tax - Revise the ceiling for the profession tax, which is currently Rs. 2500.

7)
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Previous Year's Questions
Q. In the absence of well - educated and organised local level government system. Panchayats and
z Samitis have remained mainly political institutions and not effective instrument of governance.
0 Critically Discuss.
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<z Q. "The local self-government system in India has not proved to be effective instrument of
u:::: governance·. Critically examine the statement and give your views to improve the situation. (150
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f­ (2017)
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Previous Year's Questions
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w Q. Assess the importance of the Panchayat system in India as a part of local government. Apart
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0 projects ? (Answer in 250 words)
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Q. "The reservation of seats +or women in the institution of local self-government has had a
l!) limited impact on the patriarchal character of the Indian political process•. Comment.
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