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
w significant events, personalities, issues.
u
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:::::, ► The Freedom Struggle - its various stages and important contributors/contributions from
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(/) ► Post-independence consolidation and reorganization within the country.
w ► History of the world will include events from 18th century such as industrial revolution, world
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w wars, redrawal of national boundaries, colonization, decolonization, political philosophies
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u like communism, capitalism, socialism etc.-their forms and effect on the society.
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vi ► Salient features of Indian Society, Diversity of India.
:::::,
ID ► 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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► Social empowerment, communalism, regionalism & secularism.
0 ► Salient features of world's physical geography.
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z ► 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
industries in various parts of the world (including India).
g ► Important Geophysical phenomena such as earthquakes, Tsunami, Volcanic activity,
:I: cyclone etc., geographical features and their location-changes in critical geographical features
(including 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. l/)
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► Welfare schemes for vulnerable sections of the population by the Centre and States and 0::
the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for =>
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the 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/)
Education, Human Resources. w

► Issues relating to poverty and hunger. w

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► Important aspects of governance, transparency and accountability, e-governance applications,
models, successes, limitations, and potential; citizens charters, transparency & accountability :r:
and institutional and other measures. l/)
► Role of civil services in a democracy. ui'
► India and its neighborhood- relations. =>
► Bilateral, regional and global groupings and agreements involving India and/or affecting India's ID
interests.
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► Effect of policies and politics of developed and developing countries on India's interests, Indian
diaspora. ::::i
► Important International institutions, agencies and fora- their structure, mandate. 0
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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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new technology.
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:::::, ► Awareness in the fields of IT, Space, Computers, robotics, nano-technology, bio-technology
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and issues relating to intellectual property rights.
� ► Conservation, environmental pollution and degradation, environmental impact assessment.
(/)
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► Disaster and disaster management.
� ► Linkages between development and spread of extremism.
w
:I: ► Role of external state and non-state actors in creating challenges to internal security.
u
(/) ► Challenges to internal security through communication networks, role of media and social
vi
:::::, networking sites in internal security challenges, basics of cyber security; money-laundering and
ID
its prevention.
► Security challenges and their management in border areas - linkages of organized crime with
terrorism.
::::i ► Various Security forces and agencies and their mandate.
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z o General Studies- IV:
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► Ethics and Human Interface: Essence, determinants and consequences of Ethics in human
actions; dimensions of ethics; ethics - in private and public relationships. Human Values -
g lessons from the lives and teachings of great leaders, reformers and administrators; role of
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family society and educational institutions in inculcating values.
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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
• International Relations u0
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• Social Justice =>
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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 w
students devote more energy in preparing the factual part.
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• Flawed reading of the syllabus: Along with general understanding of the whole constitution u:::
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 r:
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the question means half the battle has been won.

• Lack of sufficient answer writing practice is another major issue. There is a need for writing practice uf
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to complete the paper in the given time.

Reference Books and Newspapers 0 01:00:21

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• NCERT Books of Political Science-Class XI and XII.
• The Constitution of India by P. M. Bakshi. ::::i
• One Newspaper-Indian Express/The Hindu. 0
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• Debates on Youtube-The Wire, The Print, Sansad TV (Important for International Relations). z
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 • Yojana Magazine.
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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
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w o Council of Ministers
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0 o Cabinet Secretariat, PMO and Central Secretariat.
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• Comptroller and Auditor General of India.
(/) • Union Parliament.
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(/) o Chief Minister
vi
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• State Legislature.
• Local Self Government.
• Judiciary.
::::i • Quasi-Judicial Bodies.
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a.. • Election:
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
0:: 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
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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.
•
Thusthe legislative powers of the Parliament to makelaws cannot violate the Supreme Lawthat deals with
the fundamentals of the existence of the society and this Supreme Law is termed as the Constitution.
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So constitution can be termed as a fundamental law or a fundamental set of principles
z according to which a politically organized society (usually a nation-state) is to be governed.
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Hence the constitution can also be succinctly described as 'The Law of the Laws'.
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Many colonized countries around the world after they gained independence from the colonizers, the
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first task that they got involved in was to frame a constitution according to which the nation will be
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z Constitutional Law vs. Statutory Law:

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The constitution is a set of fundamental laws. Due to its fundamental character/nature, it enjoys a
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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.
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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:
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It is usually termed as the entire body of laws.
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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

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The first act after the birth of a nation is framing a constitution as it sets up a common set of norms or a w
common normative home through which diverse elements of society interact harmoniously with each u
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other.
• What a birth certificate is to a child, the constitution is to the nation. z
• It gives a basic structure of our polity or system of governance. C,
• It also details the patterns of relationship between legislature, executive, andjudiciary. v
• The constitution also details the relationship between the State (Legislature, Executive, and 0
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, <(
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particularly in the Preamble. z
• The Constitution also acts as a mirror to the society and it highlights the faults within our society
and tries to address them, for if these faults were not addressed, they would be tantamount to
the perpetuation of injustice. For e.g. language, caste discrimination, injustice against women
and minorities both linguistic and religious. ;'.5
• The Constitution gives legitimacy to the State and its actions, for e.g. taxation.
• 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 z0
legally enforceable limitations can be placed on the State's authority. i=
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Constitutionalism: 0 01:01:40 i=
• It is a complex set of ideas that is based on the principle that the powers of the government are not z
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absolute and are limited by a body of laws or a supreme law called the constitution. Thus, the 0
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government has to subscribe to the body of laws for its legitimacy depends on it.
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Components: �
o Rule of Law: Although many people have contributed to the principle of Rule of Law, principally 0z
Dicey's contribution has been more seminal. Rule of Law has many components, but basically, it i=
means rule by law. It has many components namely: u
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► S ing to the whims and fancies of the ruler but in terms of the principles of law and the ruler is
u also subjected to the law. The Supreme Court has also said 'You may ever be so high, but
p the law is above you, the law is the king of
r kings'. Even the Upanishads express similar sentiments namely mentioning the Dharma of the
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king. (Lex is Rex). The natural corollary of this postulate will be that the rule of the country has
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c power is prohibited too.
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► Equality before Law: Dicey said that all sections of society are equally subject to law of the land

o as administered through ordinary courts. Though in modern practice, steps related to

f affirmative action or positive discrimination violate the strict application of this principle but
l are in tune with modern times. (substantive equality vs procedural equality).
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o Equality of Law administered through ordinary courts: But today we have many forums that have
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: adjudicatory functions other than the ordinary courts as said by Dicey. An example is quasi-
T judicial forums like CAT, ITAT, tribunals, etc.
h ► There are certain exceptions to legal equality in the Indian Constitution-while president and
e governor are in office, no criminal proceedings can be started against them as per Article 361
and no civil dispute can be undertaken unless two months' notice. (Violation of formal

c equality).

o ► 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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► In Britain, the courts are the creation of the crown and hence cannot prosecute, but in India,
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both the president and the courts are the creation of the constitution, and hence similar
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provisions are vague.
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► Noorani also termed that these provisions can be abused, where politicians facing criminal
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prosecution can be appointed as governors. Noorani also says that hypothetically if the
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provision is not there, and no consequent criminal immunity was present and such a provision
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was enabled through a constitutional amendment, such a move would not get the approval of
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the public or the courts today.
l ► A similar exception is the concept of diplomatic immunity, which violates formal equality. In the
b provision of Section 499 of IPC, contempt of courts is present, but any legislator while
e speaking on the floor of the house is exempt from these laws and constitutes a
parliamentary privilege.
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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.

• Westminster System:
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w0 o In a parliamentary system of government the separation between the legislature and executive is
never complete. In the executive, there is a large body of civil servants termed as permanent
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bureaucracy. Above this bureaucracy at the apex in the executive is the Council of Ministers
0 headed by the PM, termed as the political executive. These members of the political executive are
c.. part of the parliament as MPs.
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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, I TAT 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. (/)
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Examples of Regulatory Bodies are SEBI, IRDAI, etc.
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MPLADS: :
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o The function of MP is to legislate laws in the Parliament. But legislators are provided funds to
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identify local needs of the community, decide the money where to be spent and implement
programs to benefit the public. ll..
o This particular function concerning implementation comes under the gambit of the executive, 0
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and thus a legislator is exercising the functions of the executive while administeringMPLAD. 0
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Article 372:
o Under Article 372, the laws that were present before the enactment of the constitution can be
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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.
•
In the system of checks and balances, the functions of the government are divided between the
branches of the government and each acts as a check on the other from abusing the powers.
•
Check on Judiciary:
o The power is segregated between the executive, legislature, and judiciary. How does the executive
keep a check on the judiciary, because while on paper the executive needs to appoint the judges
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to 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
w constitution mentions that it is the duty of the executive in the appointment of the members of
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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: (/)

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• In India, if there is a vacancy in the office of the president and the vice president is also not
available, then there is a provision for the head of the judiciary namely the CJ I to act as the :
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President, This is a huge violation of the separation of powers, where the head of another branch of
government takes over another branch of government. 0
• Such a provision is not available in the USA, thus the USA has a more rigid separation of power than ll..
India. 0
• In comparison to the USA, the UK has a loose separation of powers. India follows a middle path z
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between the two.

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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:
•
Rule of Law 0 01:34:41
•
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
0 00:00:37

Negative and Positive Constitutionalism

•
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.
o Positive constitutionalism says that government must have certain powers to perform its
functions properly, thus trying to balance the government's powers to prevent tyranny (due
z to excessive power and its abuse) and anarchy. (due to inadequate power)
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Factors Affecting Constitutionalism
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• These principles have been assimilated in Indian Constitution to varying
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These principles have to be implemented and be observable to the citizens in daily life to conclude the
presence of constitutionalism. In fact in the case of United Kingdom, the presence of an unwritten
i constitution doesn't prevent the country to not have constitutionalism.
m •
Thus we can conclude that the mere presence or absence of the codification of these principles does
p
o not guarantee the presence or absence of constitutionalism in a society.
r •
The realization of the principles of constitution depends on the following factors:
t o Political Culture:
a
n ► The institutions most responsible for nurturing and strengthening the tradition of democracy
t are Political Parties. But in India, political parties are dens of undemocratic culture with many
parties even functioning as family fiefdoms, presence of high command culture, less scope for
t dissent, nomination of criminals ,vindictive politics after coming to power etc.
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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.
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being the provisions where scheduled castes, tribes, Anglo-Indians etc. are defined. f
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 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 21 (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 21 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.
o The apex court has ruled that the interpretation of a provision should not be done purely in
isolation, but interpretation should be in light of the entire constitution which is an ecosystem
itself. The apex court ruled that all parts of Constitution must be read together.
• Harmonious Construction:
o If there is a situation where one provision is actually in conflict with the other, the apex court has
z ruled that such an interpretation should be made so as to reconcile the articles and give
0 them maximum effect as possible. This is termed as harmonious construction.
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• Liberal Interpretation:

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of citizens in favor of them is termed liberal interpretation. Under such interpretation rights
like privacy, media, information etc. have been grouped under the Right to Freedom of
.. Speech and Expression under Article 19( 1)(a).
z • Conventions:
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w followed under the parliamentary system in England is used by the courts as a tool to interpret
the constitution.
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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 (1861, 1892, 1909), Gol Act 19 19, 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 werefrom 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
them into a text.
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Saadullah, Madhav Rao joined later replacing BL Mitter due to his ill health, T.T. Krishnamachari 0
replaced DP Khaitan due to his death. (!)
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individuals. This was the stage when the draft was put to rigorous debate, multiple LL
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5 ► The date of 26th Jan carried sentimental value due to its association with Purna swaraj
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a resolution.
g ► Hence those provisions of constitution which needed to be enacted immediately were enacted
e on 26th November as mentioned in the Preamble, while the bulk of the constitution was
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Functions of the Constituent Assembly: 0 01:45:51
the • Framing the Constitution.
ena • The Constituent Assembly doubled up as a legislature functioning as a provisional parliament to
ctm frame laws. When the same Constituent Assembly functioned as a legislature, it was presided by GV
ent Mavlankar and not Dr. Rajendra Prasad. The CA used to sit as a legislature in the morning session
of presided over by GVMavlankar and came back as a Constituent Assembly to frame the constitution in
con the afternoon presided over by Rajendra Prasad.
stit • It adopted the National Anthem, flag and national song.
utio • The constituent assembly also elected Rajendra Prasad as President of India from 1950-52 until the
n. general elections were held for the union and states.
The • After 26th Nov, 1946 when the constitution was enacted and the constituent assembly 's task ended,
date it still continued as a provisional parliament till general elections in 1952.
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ed 1946 till 14th Aug, 1947just before our independence due to its nature of being a British creation.
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 Ir.II CRITIQUE OF CONSTITU ENT ASSEM B LY
11:.1 AN D TH E CONSTITUTION
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Th ed by the people and hence didn't represent their views; it was indirectly elected while there
e were nominations from the princely states.
C o This criticism can be debunked as follows:
on ► The congress party and Nehru had the opinion that the constituent assembly while being
sti
tu created, wanted it to be elected by the people of India. But in those days, the preparation for
en elections would take a long time and eventually the consequent transfer of power from British
t to Indian would be delayed. Hence they decided to undertake indirect elections for the
As same.
se ► Even though the constitution was framed by the Constituent Assembly, it was open for
m introspection to the public after the 4 th Stage of the framing process from all stakeholders to
bl make the framingprocess as broad based as possible.
y ► The Constituent Assembly was composed of many prominent members who would have
w been elected nevertheless even if they were directly elected. Moreover, in the 1952 elections,
as the legislature had a similar makeup and hence acted as a referendum, since congress which
cri was the major party in Constituent Assembly, also won the later election.
tic ► Each section's voice and opinion was represented in the constitution, and hence even if there
iz was no physical representation in Constituent Assembly, their opinions were discussed
ed
on and represented.
fo ► The constitution represented the will of many and not the needs of the few.
r • Congress dominated the CA:
th o Congress consisted of communists, socialists, secularists, Hindu nationalists, Gandhians,
e capitalists etc. and hence did not have a coherent ideology and hence was a broad organization.
fol Thus accusation of congress ideology in the Constituent Assembly seems unwarranted.
lo • Congress was Hindu Dominated:
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ng o Since the majority of the population was Hindu, it was natural to expect them in the majority, but
: this majoritarianism is not reflected in the constitution.
• I o Even the Hindu nationalists of that era, criticized the constitution.
t • The constitution was unindian and borrowed constitution:
w o Some alleged that it was a slavish imitation of the West, carbon copy of Gol Act, 1935.
a
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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.
u o But all these articles were debated and discussed in the Constituent assembly before being
n adopted, thus only the structure was adopted, while the soul was debated in the assembly.
r o This can be debunked:
e ► Our constitution is based on the idea of secular democracy. Since we were framing our
p constitution around the idea of secular democracy, it is unimaginable that the basic precepts of
r the constitution would be different than what are found in similar constitutions around the
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 ► 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 z
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adapted, it is natural that it would turn up to be bulky. j::
► Our constitution also deals with details of the administration apart from the fundamentals, ::
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backward classes, etc.
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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 is left, in order to avoid litigation too
► Moreover, the 1935 Gal Act was bulky, hence the consequent incorporation from the act also �
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contributed to the bulkiness. �
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•
Ungandhian constitution: (/)

o There is allegation that, not much reflection of his ideology is seen in the constitution. (/)

o When it came to national struggle, the congress strategy was totally Gandhian, but when it came
to post independence economy and polity, the congress was ungandhian.eg Mahatma <1-
Gandhi's cottage industry vs. Nehru's industrialization. z
o His concept of oceanic circles of power meant that power should radiate from village to the
centre and not the reverse, but these were not added in constitution and added in DPSP in
article 40 and hence non-justiciable. :::,
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o A atriarchy, feudalism etc. and hence any democratic representation at the local level will represent
m only local elites.
b o But they were added later in 73rd and 74th Constitution Amendment Acts.
e • Lacks theoretical consistency:
d
k o Since India has many contradictions, it is natural for the constitution to accommodate and reflect
a these contradictions.
r o It has provisions for modernity (liberty, equality, fraternity) and tradition (UCC, divorce, adoption
c etc.)
o o India is a blend of modernity and tradition and our constitution is just a mirror to that facet of society.
n o It is the incoherence in society that gets reflected in the constitution.
s • Hanna Lerner said that while dealing with explosive issues, the constituent assembly employed three
i methods-deferral, ambiguity, non-justiciability.
d o Deferral: case of national language status of Hindi, which is left for future generations to decide
e o Ambiguity: states role in interference in the religion.
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e o Non-justiciability: cow slaughter, prohibition of liquor, Uniform Civil Code, etc.
d
v Ambedkar's warnings:
il •
Ambedkar said that mass protests had a salience when we were being exploited by British rule, but
l did not hold such salience after independence.
a
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He exhorted to use constitutional methods to redress grievances and prevent grammar of anarchy.
e
•
He suggested that there should be no hero worship in politics and never to elevate leaders to the
s status of divine.
a •
Ambedkar upon the inauguration of constitution said that "We are entering an era of contradictions,
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d in the political sphere we will be recognizing one man one vote and one value while sadly in
e socio
n economic sphere, there is inequality. Hence this political democracy should be used to alleviate
s socioeconomic inequalities."
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Constitutionalism and constitutional morality should be nurtured in generations to come.
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 m BASIC FEATU RES OF TH E CONSTITUTION

• 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 42nd Amendment Act.
o Part IX-A-Urban Local Bodies 74 th Amendment Act and (IX-B added by 97 th amendment dealing
with cooperatives), XIV-A dealing with Administrative Tribunals through 42nd Amendment
Act, removed parts include part VII 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
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► 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
► Procedure established by Law
o Canada
► Federal setup tilted towards Centre
► Residuary powers with Centre
► Appointment of governor by union
z ► Advisory jurisdiction of Supreme Court through Article 143
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::, ► DPSP
► method of election of president
z ► Nomination of members to Rajya Sabha eminent individuals
0 o South Africa
u ► Amendment procedure from the previous South African constitution
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► 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.
• Role of Conventions: z
o US constitution only has 7 articles; conventions are not codified but carry the force of the law. 0
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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. D idth e Government of India Act. 1�'35 l a !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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 AMEN DMENT, SALI ENT FEATU RES AN D SCH EDU
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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 00:03:25
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Power only with Union.
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� o The bills introduced by ministers are through the government and any bill from the private
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members is termed private members bill. Private members include even the members of the ruling
c: party who are not part of ruling executive.
•
Some bills need sanction from the President before introduction e.g. state reorganization, money bill.
: But no permission is required for a constitutional amendment bill under Article 368.
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Bills for Constitution Amendment can be introduced in both houses.
z o There is no provision of joint sitting for Constitution Amendment and hence the Constitution
Amendment bill needs to be passed separately in each house.
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vacancy.
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Rigidity of constitution is reflected if there is an amendment needed in a provision dealing with
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w states. This can be contrasted with the three-fourth requirement in US.
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� executive powers between union and states, provisions relating to SC/HC, distribution of legislative
z powers between union and states, any alteration in schedule VII, altering representation of states in
parliament, and any provision in Article 279 A added in 2016 concerning GST, and article 368 itself.
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Basic Features of Constitution (continued from previous 0 00:27:38
lecture)
•
Bulky constitution
•
Borrowed Constitution
•
Less rigid and more flexible
•
Balance in distribution of powers among three organs of executive, legislature andjudiciary:
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
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o But in reality, any bill passed needs to be favored by public opinion, since in a democracy w
with popularly elected governments, unpopular legislations are rarely passed for fear of
consequences.
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o In US, bills passed by congress can be struck down by SC for being ultra vires. Therefore US is a::
the home of judicial supremacy, while India can be termed as 'Via media' i.e. following a iI
middle path. z
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Constitution provides for Political Justice: j:
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o It provides for equality before law, universal adult franchise, and right to contest. Our constitution
also provides for substantive equality in terms of social justice and economic justice. f-
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Federal setup with a unitary bias. z
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Westminster System followed with an elected Head of State. 0
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o Part Ill contains justiciable rights and part IV concerning non justiciable rights are provided by our LL
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Schedule is basically an explanatory note or an addendum. Schedules are like an attachment to the f
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constitution where an explanatory note is required and instead of adding it with the article itself, it
is added at the end of the constitution.
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When we refer schedules in the constitution, they explicitly point out the articles that they are -t
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Schedule I: w
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A list of states and union territories attached to Article 1 and 4 C
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 • Schedule II:
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.
I ► Article 59(3)
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► The President shall be entitled without payment of rent to the use of his official residences and
shall be also entitled to such emoluments, allowances and privileges as may be determined by
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Parliament by law and, until provision in that behalf is so made, such emoluments, allowances
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c:: and privileges as are specified in the Second Schedule
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• Schedule Ill deals with oaths:
z o Since the nature of duties and responsibilities of the dignitaries differed from each other,
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::, o Oath signifies a commitment and a general and specific direction in which the incumbent is
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w o Ministers take both the oath of office and oath of secrecy due to being a part of the government.
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C • Form of oath or affirmation to be made by a candidate for election to
z • Parliament:-
• "1, A. B., having been nominated as a candidate to fill a seat in the
• Council of States (or the House of the People) do swear in the name of God/solemnly affirm
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► Even in the oath pertaining to oath of MPs where it directs the MPs to discharge their duty
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► 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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 •
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)
• Article 60: Oath or affirmation by the President f
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Every President and every person acting as President or discharging the functions of �
the President shall, before entering upon his office, make and subscribe in the presence of w
the 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
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God I, A B, do that I solemnly affirm will faithfully execute the office of President (or a::
discharge the functions of the President) of India and will do the best of my ability iI
preserve, protect and defend the Constitution and the law and that I will devote z
myself to the service and wellbeing of the people of India" 0
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► The position of Vice President as seen in table (warrant) of precedence is second to the 0
President. But in spite of this, the oath doesn't place upon him much responsibilities and duties w
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to be carried out as compared to the President. This is due to the fact that functions of a VP I
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• Article 69: Oath or affirmation by the Vice President
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President, or some person appointed in that behalf by him, an oath or affirmation in the ::,
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following form, that is to say "swear in the name of God I, A B, do that solemnly affirm will w
bear true faith, and allegiance to the Constitution of India as by law established and that I
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• Schedule IV:
o It deals with the allocation of Rajya Sabha seats in States and Union territories. z
o In US upper house called senate has 100 members from 50 states each having a fixed 2 <
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VI
: o It is attached to Article 246 and it contains the legislative distribution betweenunion and states.
o A o It has three lists namely union, state and concurrent list. The union list had initially 97 subjects
t which has been enlarged to 100, the state list had 66 which has been reduced to 61 now, the
t concurrent list contained 47 subjects that has increased to 52 now.
a o Five subjects have been subtracted from the state list and have been added to the concurrent list,
c the reasoning behind the distribution of subjects is as follows-
h ► Those subjects which need nationwide uniformity in its application is essential, would be
e placed in the Union List, while the concurrent list in which both the union and states can make
d laws has those subjects where uniformity may be desirable but is not essential.
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list, which resulted in the union list having effectively 98 subjects and the state list having 59
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t o After the 42nd Constitution Amendment Act, 1976 five subjects from State list were transferred
i to Concurrent List namely weights and measure, forests, education, protection of wild life,
c organization of subordinate courts. The Punchhi commission had recommended that these
l subjects should be transferred back to the state list.
•
e Schedule VIII:
o It is attached to article 344 ( 1) and 35 1. It pertains to constitutionally recognized Indian languages,
2 out of which 22 official languages are listed in the schedule.
4 o It has to be noted that English is not mentioned in the schedule. The original constitution had 14
4
languages in the schedule which has expanded to 22 now.
o While most of the languages have a linguistically associated state, example being Tamil from
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2
for them namely- Bodo, Dogri, Konkani, Maithili, Nepali, Sanskrit, Sindhi, Urdu, Santhali.
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a o Detractors of these schedule have mentioned that this schedule has been used as pacifying tool

n for various linguistic demands to allay demands of linguistic based state demand- bodo, konkani
d etc.
Pahwa committee (1996)
o The criterion for inclusion in this schedule has been investigated by the
2 and Mohapatra committee (2003) and associated issues like whether a language is a dialect of
7 parent language or a distinct language hasbeen difficult to answer and is up for debate.
5 o There have been nearly 38 instances of demands of languages to be included in this schedule
( like Khasi, Pahadi, Ho, Bundelkhandi, etc.
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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 Schedule, and by drawing, wherever necessary or desirable, for its vocabulary,
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Sanskrit (2005), Telugu and Kannada (2008), Malayalam (2013), Odia (2014). The criterion used g
by government has been:
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T e 12 schedules after subsequent additions as seen below:
h • Schedule IX- 1st Constitution Amendment Act, 1951
e • Schedule X- 52nd Constitution Amendment Act, 1985
• Schedule XI- 73rd Constitution Amendment Act, 1992
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r • Schedule XII- 74th Constitution Amendment Act, 1992
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g Schedule IX:
i • Added by PM Nehru through first amendment act and will be dealt in detail in the Fundamental Rights
n section.
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l Schedule X:
• Schedule X was added before in a different form and removed before being replaced by
c provisions relating to the Anti-defection.
o • In the earlier version it contained provisions detailing the relationship of Sikkim as an associate state
n with the Indian Union.
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t • Sikkim was added as an associate state through the 35 th CAA, 1974 through insertion of Article 2A
i and Schedule 10 which were subsequently repealed after it became a full-fledged state in 36 th CAA,
t 1975.
u • The present schedule deals with anti-defection and is attached to Article 102(2) and 19 1(2).lt was
t added through 52nd CAA, 1985.
i • Anti-defection doesn't apply to general party workers but to those members who have been elected
o to the legislature based on the party's ticket. The schedule X in the constitution only deals with
n defection arising at two levels- Union and states; the panchayats and urban local bodies are excluded
from it, and
o it is upon the state legislature to include the provision in the state local body legislation.
n • Why such a legislation was needed:
l o Breach of trust: Resigning the party with which the candidate has been elected leads to breach of
y trust of the public, who may have voted for the candidate based on the party affiliation or the
leader
c of the party.
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r o Instability: Mass defection from a party leads to instability of the government as it reduces the
r party's majority in the legislature and in extreme cases, even the government can fall.
i o Political Corruption: Prevalence of money power in politics has led to the swinging of loyalties
e
d and hence it amounts to political corruption.
o Political Parties: Parties deploy a lot of resources in terms of canvassing, money, manpower to
8 get the candidate elected. Hence defection tantamounts to treating the party in a casual entity.
o In the late 1960s, defection was becoming rampant and thus a committee under YB Chavan was
s appointed, which suggested the moment a legislator defects from the party and joins another
c party, he should be disqualified and fresh elections must be held but stopped short of
h recommending disqualification as a result of defection.
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Bill, which did not pass.
o The second attempt was in 1979 through 48 th 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. ;=j'
• 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 !z
Anti Defection Law will apply to him too. 0
o If a nominated member is not a member of a party, he has two options namely- �
► (1) He can join a party within 6 months from the date of his nomination u
► (2) Post the six month limit if he joins a political party, Anti-Defection Law will come into play. w
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• Exceptions: .
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
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does not arise. z
o A speaker or deputy speaker is allowed to resign from the party but is not allowed to rejoin <(
the political party during his tenure as speaker and once his/her tenure ends, he can rejoin Q
only his parent political party from which he resigned <(z
• After the 91 Constitution Amendment Act in 2003, some changes were made in the Anti-Defection I
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o The one-third splitlegal rule was repealed. I
o A party with two-third majority resolution passed can merge with the other party, the members z
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group. �
o Changes in constitution:
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► Any allurement concern arising from the prospect of becoming a minister was curbed by �
limiting a cap on ministers in LS and assemblies - Article 75 (1A}, Article 164(1A). I->:
► Article 75(1B) states that any member who has defected cannot be appointed minister again �
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 politic ion:
al post ► If a case of defection happens, any member of the house can file a petition to the speaker to
comm take action under Anti-Defection Law (ADL) and if the speaker himself undergoes
encing defection, the petition is supposed to be filed with the secretary general of the house.
from ► And decision regarding ADL petition against speaker would be taken by such a person of
the the house specifically elected for the purpose.
date
of his ► Since usually the speaker holds the membership of a political party, any decision made by him
disqual can be seen with doubtful lens regarding the fairness of the process. Since justice must not
ificatio
n till only be done, but also needs to be seen to be done.
the ► Thus the apex court in Kihoto Hollohan case in 1992, said that there is no wrong in the case
date being decided by the speaker, but there will be a provision for judicial review since the
of speaker acts in a quasi-judicial capacity exercising judicial functions, and the highest judicial
electio court is Supreme Court, hence judicial review can be done.
ns of
the
•
The adjudication process may also lead to errors due to deficient legal acumen, skill, etc. In one
house. recent observation the SC remarked that the role of speaker as adjudicator in defection cases
• Iss could be divested from him and handed over to body/tribunal consisting of retired judges.
ue ► Article 102 mentions the grounds of disqualification including the defection provision. These
s disqualification provisions excluding the defection ones are decided over by the President of
wi India according the advice of Election Commission of India. Similar provisions for state
th legislature in Article 192.
A ► Article 103: Decision on questions as to disqualifications of members
nt ► (1) If any question arises as to whether a member of either House of Parliament has become
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subject to any of the disqualifications mentioned in clause ( 1 ) of Article 102, the question
ef shall
ec be referred for the decision of the President and his decision shall be final.
ti ► (2) Before giving any decision on any such question, the President shall obtain the opinion of
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the Election Commission and shall act according to such opinion
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La o Whip gagging:
w: ► The provision of whip suppresses genuine dissent.
o P ► It does not allow to faithfully represent constituents
o ► It does not allow following one's own conscience.
w ► It also reverses the paradigm of accountability: The anti-defection law reverses the paradigm
e of the accountability between the executive and legislature. While the executive is supposed to
r draft legislation and convince legislators to vote for it and hence the accountability lies on the
t executive, with Anti-Defection Law the reverse happens, where due to an issuance of whip, a
o legislator has to vote for the legislation. Even with the opposition, the ruling dispensation need
not convince everybody, but has to convince the opposition party leader to issue a whip and
d thus make them toe the line. Thus it reduces debate culture in parliament and even genuine
e 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 havegivensomeleeway with regard to ADL: Whip should be applicable on vote of confidence, no
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confidence or major policy issue on whichthe 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
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► Thus instability can be caused in these situations too. Experts have suggested that pre
poll coalitions should be covered by Anti-Defection Law and if there is any defection, the
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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 ADL 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: 12:00
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
z filed.
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• If the speaker feels that the issue needs a greater investigation, he can also refer to a committee,
u usually the Ethics Committee.
w • Rajendra Singh Rana case, 2007 laid out these guidelines namely-whenever the petition is received
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 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 10%.
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 NCRWC 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 N
such cases of floor management, such norms should be placed in the anti-defection law itself.
The vote 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:
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• The Law Commission recommended that the provision that exempts merger and split must be 0
deleted. =i=
• It also suggested that Anti defection law should also cover pre-poll alliances.
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Issues with the Anti-Defection Law: =i=
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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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 TERRITORY OF INDIA AND
mJ REORGANIZATION OF STATES
Territory of India and Part 1 (Article 1 to 4) :
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There are 4 articles of the constitution that deal with this.
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I tates which were classified earlier into 4
n parts was done away with this act.
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This classification was Part A (9 states that were governor provinces), Part 8 (9 States that
h were formerly Princely States), Part C (10 states that were chief commissioner provinces) and some
princely states that were the predecessors of Union Territories.
e
y Article 1: 0 00:03:53
e •
The first article itself starts with a conflict concerning the naming of India. It says that India, that is
a Bharat is a union of states. Even though we have a two tier government set up, we have not used
r the word federal or termed India as a federation of states.
The term union of states was preferred because:
1 •
No state has the right to secede, i.e. no right to become an independent entity outside India.
9 •
Our federal setup was also not similar to the USA, because US federation was a result of contract
5 between formerly independent colonies which came together to form USA. Our federation is not
6 the
t resuIt of contract.
The states and UTs are mentioned in First Schedule. The term territory of India includes the states and
h
union territories but also such territories that may be acquired later.
e •
The apex court wondered that the usage of the term 'acquired' gives the right to State to use an
S expansionist foreign policy. The court termed that acquisition of foreign territories is done under
t the aegis of international law and just the mere usage of the term 'acquired' doesn't confer
a the government a right to acquire territory.
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Article 2
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This article deals with the admission and establishment of new states that are not a part of India.
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• 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
reorganization, preservation of tribal identities, addressing development deficit etc. (/)

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Since everywhere in the article, the term 'State' is mentioned, then are union territories not covered in the w
exercise?
• The answer is that the term State includes Union Territories, but in the proviso the term State �
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include Union territory and thus the opinion of the union territory's legislature if existent is not z
necessary. 0

Berubari Union Case: z

• In 1958, an agreement was signed between Pakistan and India to transfer some land to Pakistan in <
exchange for some territory. C)

• This was the Berubari Union Case where the question revolved around whether the Union :a:
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Government needs the approval of Parliament to conduct exchange of territory between countries. w
• Thus, under Article 143 that deals with the power of advisory jurisdiction of the Supreme Court, the a::
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court opined that legislative action is required in such actions taken by the government.
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• Additionally, the courts also said that to give effect to such treaties, they cannot be covered under
the <
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procedure laid down under Article 3, and a separate constitutional amendment has to be brought
to bring into such effect. Hence the 9th Constitutional Amendment Act was passed.
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 Constitutional Amendment Act, 2015 was passed by the Parliament.

Article 4: 0 00:41:29
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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 Basisfor 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.
•
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.
•
But another contrarian take is that on what basis apart from language could the state reorganization
(/)
be carried out- basis of religion, caste, etc.?
w •
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 tongue easier.
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A similar benefit is that masses can take part better in administration if the language used is the
native language. Similarly, it also ensures regional languages are preserved, promoted, and enriched.
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Nehru's Opposition to Linguistic Reorganization:
0 00:56:40
z •
It would spur further such demands due to the large number of languages in country making
(.<(
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0 •
It would stall the process of building national identity and focus on linguistic identity may stall it.
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It could threaten national identity since language is a very strong bond and hence may lead to fears
w of secession as seen in Europe
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If the states were multilingual, it would become difficult to administer 0 00:59:38
them.
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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.

0 01:04:28
Commissions Investigating State Reorganization:
•
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 HN Kunzru as other members. w
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•
It accepted the linguistic basis with some caveats. These caveat included: �
o Not using the linguistic basis that would threaten the unity of the LL
country. 0z
o It further rejected the principle of one state-one language as seen in the case of Hindi. 0
o Economic and financial viability should be a viable unit for planned economic development.
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It recommended 16 States and 3 Union Territories. The Union finally modified that into 14 state and z
6 Union Territories and it gave away with the earlier four fold classification as seen in the British <(
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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 21 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.
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•
The capital in smaller states is much nearer to the population and hence more democratic
� participation can be expected but this has not beared out in reality.
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LL Issues with Small States: 0 01:38:26
0 •
The first issue is defining what constitutes as a small or large state. Should the population of the
state, land area, or both or any other criterion should be used to define the threshold.
0 •
The center-state issues, border issues, water sharing issues would erupt and managing interstate
relations would get difficult.
z •
It might amount to undoing of Sardar Patel's good work and going back to pre-independence days
(.<(
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Smaller states do not guarantee human development and other pre-requisites like existing
0 resources, sound planning, proper implementation, incorruptible bureaucracy, proper training to
w officials imparting the missionary zeal, grand vision of the leader etc. Thus the size of a state or it
0:: being small is
Q not the only indicator for a state's destiny. Thus even small states are found at the lower end of
z human development rankings.
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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
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exigencies like left wing insurgency as compared to larger states.
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 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 01:56:49

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

0
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02:05:03 (/)
Case for a 2nd State Reorganization Commission: w
• There have been demands for new states such as Koshal (Odisha), Kodagu(Karnataka), Vidarbha
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and Konkan (Maharashtra), Bodoland (Assam), Maru Pradesh (Rajasthan), Mithilanchal LL
(Bihar), Gorkhaland(West Bengal). 0
• Thus when such demands arise, the government at the Union level sees these demands through the
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political lens rather than the rationality and modern scientific criteria that is expected.
• Thus a 2nd SRC would help us evolve a rational, scientific and objective criterion towrads
such demands.
• The process of state reorganization is an evolving exercise and not a one stop exercise and as the z
demands for statehood arise, they have to be examined properly. C)
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imbalances and allegations of regional neglect.
• Population in certain states has grown very large leading to concerns about governance. Q
• Thus these reasons provide enough rationale for the government to consider constituting a 2nd SRC.
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Delhi's Demand for Statehood: 0 02:12:43 z
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T et it statehood. There are similar demands with respect to Pondicherry too. Though the demand is not
h very popular among the masses, it nevertheless needs examination.
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r Arguments in favour:
e • Delay in decision making:
h o The central government in Delhi is responsible for Police, Public order and Land, while the state
a government also has powers, and even Lt Governor has some responsibility. Since the
v responsibility is fragmented, the accountability is fragmented too, leading to delay in decision
e making.
b • Population:
e o A large number of states have a population less than that of Delhi and are still full-fledged states
e and hence give credibility to the demands.
n o But if we take the population arguments to the extreme, then many metropolitan cities have
d population more than some small states and hence should they too be made a state.
e
m Arguments against:
a • National Capital:
n o Delhi is the national capital of the country and hence holds a sentimental value for all Indians.
d Thus the capital cannot be made the property or entity of a certain section of the population only.
s • Financial Viability:
f o Delhi is an urban agglomeration and whatever industries were present have been slowly shifting
r out due to the pollution norms.
o o Thus the state would increasingly depend on Central transfers. Since it would remain a
m capital, lack of financial resources would affect the provision of civic amenities and to maintain
the same
t level of services, taxes on the citizenswould have to be increased.
h • Resource Dependency:
e o The state would have to depend on other state for water, power etc. that are assisted by the
l Union Government now.
e Thus, instead of making Delhi a state, steps like empowering the elected government and returning the
a Lt. Governor back to nominal status, devolving extra powers to the Delhi Government that are now
d existent with the Union Government can be considered.
e
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0 02:26:03
Reorganization of Andhra Pradesh and Telangana's Creation:
s • Telangana was carved out of Andhra Pradesh through the Andhra Pradesh Reorganization Act, 20 14.
h • The demand for the state of Telangana was even there in the 1950s when the state of Andhra
i Pradesh was created. People in Telangana felt that time that their interests might be overlooked in the
p Joint Andhra Pradesh.
i • During those times an informal agreement was signed namely a Gentleman's Agreement between
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 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 been conferred to the state government's domain. LL
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• 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 0
the two states which got amended through the act itself.
• This raised eyebrows as an amendment had been done through an ordinary law. Article 4 talks z
about implications arising out of state reorganization and how amendments to deal with those
changes are not to be considered an amendment under Article 368. <
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 rri NATURE OF FUNDAMENTAL RIGHTS,
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F d Part Ill of the Indian Constitution alone. Other rights like Right to Vote are found outside Part Ill and
u hence are not termed as fundamental rights. Similarly rights outside the constitution like right to
n information too are not fundamental rights.
d
a Nature of Fundamental Rights 0 00:05:25
m •
Most rights are negatively worded or are in the nature of negative injunctions against the state. Most
e
n rights start with what the state is not allowed to do like the state cannot deny freedoms, equality.
t While this negative nature of the rights may seem to be the norm, there are some positive
a injunctions
l towards the state too where the state is instructed to perform its duties, an example being Article
21A concerning with right to education.
R
i
•
Most of these rights function vertically against the state. There are also rights that function
g horizontally like Article 17 concerning untouchability that prohibits practice of untouchability against
h fellow citizens. The vertical nature of most rights does not mean that those rights can be violated by
t citizens. While violation of these rights by the state can be addressed with constitutional
s 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
a remedies of FIR,
r subordinate courts etc.
e •
They are all justiciable and citizens can address their violations directly to the apex court or the
concerned high courts.
t
h •
They are available to all citizens of India. In any article across Part Ill which contains the term
e "person", it denotes that the right is available to both citizens and non-citizens, for e.g. Artcile 14,
Article 19, etc.
r
i o Article 14: Equality before law
g o The State shall not deny to any person equality before the law or the equal protection of the laws
h within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or
t
place of birth.
s •
No right can be enjoyed in absolute terms and hence have reasonable restrictions imposed on them.
t o Can be suspended during national emergency (Article 352)
h o Only parliament can modify by law (restricted or abrogated) the extent of application of
a fundamental rights with regard to police forces, paramilitary etc. under Article 33 is an example of
t parliament exercising this power is the Police Force Restriction of Rights Act, 1966.
a ► Article 33:
r ► Power of Parliament to modify the rights conferred by this Part in their application etc.
e Parliament may, by law, determine to what extent any of the rights conferred by this Part shall,
in their application to,
f ► (a) the members of the Armed Forces; or
o ► (b) the members of the Forces charged with the maintenance of public order; or
u ► (c) persons employed in any bureau or other organisation established by the State for
n purposes of intelligence or counter intelligence; or
d ► (d) persons employed in, or in connection with, the telecommunication systems set up for the
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 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 rightswhich 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
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debates become vague and ambiguous.
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• The state's function is dynamic and there has been increasingly a pattern of government
functions
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being outsourced to authorities that function on behalf of the government, the question arise
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that whether citizens can claim fundamental rights against these entities too. The court has given a
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number of tests for these:
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o If the body is set up by a statute or executiveorder, for e.g. UC, RBI etc.
o If the government exercise substantial financial and administrative control over it
u;
o If that entity is used as an agency of the state/instrumentality of state i.e. if the functions 1-
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performed by the agency were performed by the state before and are now being performed by
the agency(more clarity) ..J

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.
w
• An interesting observation is that there is no explicit mention of judiciary as being a part of state.
• Basically judiciary is there to protect the citizen's rights and the usual violators of rights are executive
entities like police, civil servants and legislative entities like parliament that can legislate laws
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 • 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.

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A wer of the courts to review the actions of the executive and legislature while performing their
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functions if they are unconstitutional. The power of judicial review of the judiciary is not mentioned
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1 democracy and have separation of powers in the government.
3
a • 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
d
a power of the judiciary to strike down laws violative of fundamental rights i.e. Part Ill of the
m constitution (not the whole constitution)(Art 13 (2)).
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n • While the provision provides to declare any law violative of part Ill as void, it does not categorically
d mention that it is the duty of the judiciary to perform that function.
a • The government usually doesn't take away or abrogate a right but reduces the availability of the
bi
lit right by amending the right itself in the constitution.
y o Article 13(2): The State shall not make any law which takes away or abridges the rights conferred
of
F by this Part and any law made in contravention of this clause shall, to the extent of the
u contravention, be void.
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d • Article 13(2) states that the 'state shall not make any law', Law is usually understood as ordinary
a /statutory law passed by legislature, but can the constitutional amendment laws passed by the
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legislature too be considered law as mentioned in Art 13 (2)?
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nt • The question whether fundamental rights are amendable or not lies in the answer to the question
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whether constitutional amendment law qualifies as law under Art 13 (2) or basically how we define
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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.
Na rrow l Wider l
interpretation j interpretation

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

Constitutional

- amendment not
as law under
Article 13
- Subject to
judicia l review

Funda menta l
- Rights - Funda menta l
Rights
unamend able
am endable

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
scope of its definition. This proposal that the court made was that parliament has the right and
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authority to amend the constitution and it is unfettered.
•
In Golaknath Case, a 11 judge bench with a narrow margin of 6-5 reversed its earlier interpretation .
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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
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elevated position and status in the constitution and hence are transcendental in nature and rise
above the other provisions. The court hence deemed the fundamental rights unamendable. w
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Reaction from the executive and legislature:

•
In the 24th Constitution Amendment Act, 1971, both Articles 13 and 368 were amended by adding u;
Article 13(4) and 368(3). 1-
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Art 13(4) stated that nothing in Article 13 would apply to any amendment of the constitution
done ..J

under Article 368. This was an attempt to narrow down the interpretation of the term law used in
article 13. z
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Art 368 (3) stated that nothing in article 13 shall apply to provisions made under this article to w
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 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
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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
•
Parliamentary form of government
•
Limitations on amending powers under Article 368
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Critique of Basic Structure: 0 01:39:36
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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
z locate something even more basic than that.
w o This line of thought was not there in the constituent assembly. The constituent assembly never
� notified that some features are more important than others.
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Re-writing the constitution:
z o The judiciary's job is to interpret the constitution and the court's attempt to locating a more basic
: law within the basic law itself i.e. the constitution, practically amounts to rewriting 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 M
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is no place for absolute power in a constitutional democracy, hence parliament's power to amend the
constitution cannot be absolute and hence have to be subjected to some limitations.
•
Basic structure doctrine helps in preserving our core value and constitutional identity. Popular
.
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is always fleeting and always fluid. If there is some provision that the country wants today, it may not
want tomorrow. .
• The parliament can amend the constitution but cannot redraft it. Temporary urges of the majority of
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today cannot be made to override the permanent vision in the constitution of our framers. The u...
parliament thus has a power to amend and not re-draft the constitution.
• Basic structure privileges uncertain democracy over certain tyranny.
•
The overarching framework of our constitution is secular, liberal democracy, thus the elements in the u;
constitution work towards enacting this framework. Any provision being classified as a part of 1
basic structure actually works towards the further strengthening of the goal towards secular, liberal -
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democracy.
•
But which provisions of the constitution constitute basic structure is uncertain and may vary from ....J
judge to judge or bench, thus leading to an uncertain democracy.
•
But the courts have been very responsible about applying basic structure doctrine and have not z
abused their powers. w

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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
EB - 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
•
Equality before law: 0 00:04:00
•
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.
o It simply means that like must be treated alike, or law must be equally applied among equals, thus
it gives in effect the substantive notion of equality.
LO
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clS treatment can be meted out to the different groups, but courts have added the classification
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• It has given two tests of reasonableness:
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o Firstly, categories so formed should be a homogenous unit,
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secured.
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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,
:::::,
LL sex, 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
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But in Champakam Dorairajan Case of 1951, courts struck down the quotas based on Article 29(2). ...I
•
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 I

classes of citizens or for the Scheduled Castes and the Scheduled Tribes. V)
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Present status of reservations in India: ...I

•
Scheduled Castes: 15%
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Scheduled Tribes: 7.5%
•
OBCs: 27%
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Persons with Disability (PwD): 4% z
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Economically Weaker Sections (EWS): 10% LL
 •
Total reservation: 63.5%

Percentage reserved
■ Scheduled Castes ■ Scheduled Tribes ■ OBCs ■ PwD ■ EWS ■ Unreserved

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 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)
� was added.
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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
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. educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes
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
I
educational institutions referred to in clause ( 1) of article 30.
•
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 to their admission in educational institutions can be done only through law.
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•
But reservation in government jobs doesn't need a law; they can be brought through an executive
order, because a requirement of law was not present in Article 16 (4).
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Similarly, while law is required to make provision for backward classes in educational institutions, no
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 such law is required for EWS quota as per article 15 (6) after the 103...i Constitution Amendment Act.
•
Article 15 (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
•
The article states that there shall be equality of opportunity for all citizens relating to public
employment.
•
Does the term employment refer to the process of initial recruitment only or also the whole tenure
of employment? The Apex Court has remarked that the term employment not only refers to the
z initial employment but also whatever happens post-employment concerning the job.
0 •
The second clause mentions certain categories under which discrimination is not allowed. But if there
is a requirement of local residence, the state government cannot impose that, despite many
chief ministers claiming the state government would impose such a thing. Such a thing can only be
> carried
w out by the parliament and only through law for that matter. An interesting fact is that the USA was the
first country to provide a domicile quota in public employment.
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a:: •
There was a Public Employment Act enacted in 1957 which authorized domicile quota for certain
iLL categories of posts in the state of Andhra Pradesh and the erstwhile union territories of
I<( Himachal Pradesh, Manipur, and Tripura, but this act expired in 1974. Before the expiry of this act,
through the 32nd Constitutional Amendment Act, Article 371D was added authorizing domicile
z
C qualification for Andhra Pradesh and now Telangana. For other states, Parliament still has to enact
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The fourth clause talks about the provision of reservation to backward classes who have not
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been adequately represented in the services.
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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 z
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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
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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 �
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SCs and STs in the Constitution itself. i:i:
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Note: The first person in India to provide such quotas was King Shahu IV, the ruler of the princely
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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 w
ever done in India. There was a similar exercise done regarding the SECC, but it was an u..J
exercise carried out separate from the Census and its results have not been revealed yet. On
the recommendations of J.H. Hutton, the first list of Scheduled Castes was published. He used <(
I
many criteria to classify these castes, but the primary criteria were namely the temple entry
restrictions and pollution by touch or proximity. V,
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•
The debate also revolved around that under which religion should the SCs be categorized. Since the C,
discrimination was based on the Hindu system, a natural inclination would be to classify all as Hindus.
But many of the SCs had converted to other religions too. So, the categorization that was
zw
initially �
limited to Hinduism was soon extended to Buddhism and Sikhism too. But the categorization of
STs z
and O BCs is religion-neutral and can be categorized from any religion. ::::)
u.
•
But many of the SCs also converted to Islam and Christianity and did not get the benefit of
the 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 pending in the Supreme Court.
 •
In 2015, 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 OBC, a figure
that they derived by extrapolating the 1931 Census. The commission recommended a reservation of
27% quota for the OBC community in jobs and educational seats pertaining to Central Government.
z •
This recommendation was partially implemented by the VP Singh government in 1990, i.e. they
0
implemented the quota only in Central Government jobs and not in educational institutes. In 2006,
the same quota was extended to educational institutions

> Identification of SCs:

0 00:35:52
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The Central Government prepares the list of Scheduled Castes in consultation with State
� Governments of every state and compiles them to create a single central list of SCs.
a:: •
In Article 341, the provisions say only the Central Government has the power. Thus, the President in
iLL
I<( consultation with State Governments via the Governor notifies the list of SCs through a public
C notification. Any subsequent modification to the list can be carried out only through the
z Parliament through a law.
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Thus post the SC Constitutional Order of 1950 that specified the list of SCs, any further
tD
.-4 modification to the list is carried out by the Parliament. This power of the Parliament is mentioned in
w. the second clause of Article 341. It also further states that this modification of the list cannot be
u carried out through any subsequent notification thus disallowing the executive from carrying out the
action and vesting the power in Parliament.
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Identification of STs: 0 00:40:06
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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 00:41:15

• 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.
every 10 years the Central Government would conduct a review of the
• This law also provided that
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
0
• 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. w
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Article 3388 and NCBC 0 01:00: 13 �
102 Constitutional Amendment Act, 2018 through which NCBC
• A change came about through the nd 0::
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was given constitutional status under Article 3388.
• 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. ta
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• The Act has been framed on similar lines as that of NCSC (Article 338) and NCST (Article 338A). w
Additionally, NCSC has also been given powers to look after the interests of the Anglo-Indian u..J
community. <(
I
• The Act also added Article 342A giving the Commission similar powers concerning the identification
V,
of OBCs that the NCSC and NCST enjoy through Article 34 1 and Article 342 respectively.
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105th Constitutional Amendment Act, 2021 0 o 1:07:04 ...J

• In theMaratha Quota Judgement, the apex court remarked that by virtue of the 102 nd
amendment
zw
that the power to identify OBCs has been vested in the Union government only as in the case of �
SCs and STs.
• Thus, the 105th Amendment Act was passed in 2021 to correct this anomaly that had crept in
z
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which u.
was not the intent of the Act. Article 342A and Article 3388 were amended in this Act.
 •
In Article 342A a third clause was added saying that every state can prepare their own OBC 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 do 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.
z • Division of Labourers, not Labour:
0 o The work is assigned is based on the accident of birth and not merit. In the modern economy,
the link between a person's caste and employment is considerably broken.
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.
w • Coinciding of Class and Caste distinction:
� o A person of lower class usually means a person is poverty-stricken. Similarly, a person from a
a:: lower caste faces social isolation.
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o These two identities coincide considerably in the weaker sections with the lower castes facing
I<(
C both poverty and social isolation. This is more likely to happen with Dalits where landlessness is
z more.
<( • Untouchability:
tD
.-4 o Untouchability in its original form as practiced in colonial India may not exist, but it doesn't imply
w. that untouchability has been eradicated. Its form has changed.
u o Examples include keeping separate utensils for domestic help, asking them to remove their
footwear outside the kitchen, difficulties in renting faced by Dalits, honor killings for pratiloma
<( marriage, caste demands in newspaper matrimonial from urban areas too.
I o Thus, the manifestation of untouchability in its earlier physical form may not exist, but its form
has changed and still exists in its new form in society.
J: • Labour- Market Dualism:
(,!)
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:
z
• Perpetuates injustice to tackle injustice: 0
o It is arguedthat affirmative action was promised to rectify the historical injustice against the
weaker sections. But this is akin to rectifying injustice by doing injustice. <(
o But on deeper examination, this argument is specious because the notion that a person from w
a weaker section can compete equally with a person from the dominant section is not valid. >
• Generates Caste distinctions and generates hostility: �
0::
o The argument is that such a policy increases caste consciousness and distinctions and
further increases the hostility among the various castes. i:i:
<(u.
o This argument too is flawed because the existing system of social stratification already has
created such caste distinctions and hostility and affirmative policy has been created to counter 0
and rectify such distinctions. This is corrective justice, <(z
ta
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• Compromises Merit:
o Merit is not something that an individual is born with. w...J
o Merit is inculcated in a person due to his own efforts and also due to his/her surroundings. The u
education he gets, the familial support, the lack or presence of discrimination, the quality of <(
schooling and post-schooling support, etc. I
o Thus, merit is not inherent but assisted. This inculcation of merit is deficient or absent in weaker V,
sections due to environmental factors and discrimination. :::c�
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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- ...J

2002. They measured the productivity of officials from the reserved category vs. the officials
from zw
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 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 studiesdemonstrating 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
z with the rigors of the intensity of effort required to succeed and hence drop out or poorly
0
perform.
o This doesn't call for revocation of affirmative action, but for policies like extra classes, remedial
w
classes, psychological counseling by the government.

> • Why Caste and not Class?

o lt is based on the notion that a poor Brahmin and a poor Dalit face the same handicaps in the
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a:: pursuit of merit. This argument cannot be further away from the truth.
i o The poor Brahmin faces the scourge of poverty alone, while the poor Dalit has to face poverty
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z rather a remedy for inadequate representation and such poor sections are present in each
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 QUOTA POLICY - CONSTITUTIONAL
- 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:
:::i o Diversity Index - diversity in terms of gender, community and caste.
a o Score companies on the basis of their diversity index. (For instance, 0 to 1)
.. ► 0-0.33 - low diversity
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► 0.33-0.66 - medium diversity
► 0.66-1 - High diversity
z o State and central governments could outsource their contract to companies, with diversity index
0
as eligibility for bidding.
in o UPA government proposed a diversity index and then assigned scores to the companies and
linked the contract giving (outsourcing) on the basis of this.
c::: • Move beyond quota policy:
a
o The Constitution mandated quota policy (only for SC/ST) initially only for 10 years but this
. reservation was only for seats in the Lok Sabha. However, this has been amended with time and
now stands at 80 years.
o The objective of providing quota policy and its implementation should be to uplift the backwards
z classes to a point that there is a level and fair ground.
0
j:: o Proposed solution to eventually dismantle quota policy - follow a top down approach, a
: phased manner. The three levels of quotas can be abolished in a phased manner ensuring
1-
> proper implementation.

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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
they think proper
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
•
It directed that a commission to be appointed from time to time for monitoring backward classes.
•
First such commission was set up in 1953 - Kakasaheb Kelkar commission (/)

•
Second such commission set up 1979 - Mandal commission which recommended: 0z
o 52% of population is OBC. u
o 27% quota to be given to OBC in government jobs ( 1990) and central education institutions :J
(2006). �a.
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Indra Sawhney Case, 1992 00:24: 10
It was regarding the 27% quota given to OBC for governmentjobs. <
•
Requirement of availing quota (Refer to Article 16, clause 4): z
o Backwardness: Community should be backward-socially and 0
economically �
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o Inadequate representation: Community should not be adequately represented in services under

state. z
0
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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
o The reason for giving the 50% cap was upholding the principle of equality of treatment. Articles 0
16 (1), (2), (3), (4) have the norm as equality. It can deviate under clause 3 with respect to domicile a.
qualification and clause 4 with respect to reservation of appointments or post for backward 0
classes, ::)
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ch ► Norm - Exception framework is adopted by the court.
are ► Hence, a cap on 50% to be mandated, otherwise it won't be an exception anymore and it
exc becomes a norm. (If exception is more than norm then exception becomes norm and norm
ept becomes exception)
ion ► However, intellectuals say that it should be based on a norm-clarification framework
s. which allows the quotas to go above 50% if it is for equality.
o N •
Identification of backward classes would be subjected to judicial review.
o
r o To avoid political parties from giving OBC status to certain communities for the sake of electoral
m 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.
E o In 1993, Ram Nandan committee was set up to identify creamy layer in OBCs. For
x government positions, creamy layer includes:
c ► If one of the parents holds a constitutional post
e ► lf one of the parents is Group A- Direct recruit
p ► Group B - father and mother both
t ► Parents in armed forces - Colonel or equivalent.
i o For parents in non-government jobs, creamy layer is:
o ► Income limit of Rs. 8 lakhs (not including salary income + agricultural income)
n ► In 2017, annual income limit was increased from 6 lakhs to more than 8 lakhs
► There is further demand for increasing from SL to 12L or lSL
f ► In 2019, BP Sharma committee was set up, which said:
r •
Only 2% of Indian household have an income of more than 12L
a
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•
Increasing the cap to 12L would cover 99% of OBCs
e
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•
A certain proposal for identifying creamy layer for non-governmentjobs recommended that:
o o As per study, income of a household increases by 60%, if the head of the family is a graduate and
r not just a matriculate. That is, there is an increase of income by 60% from matriculate to graduate.
k o Hence for OBC quota in educational institutions, a creamy layer should include students:
► whose both parents are graduates
V o OBC quota for government jobs
s ► Only one member per family can avail benefit of quota
.
N Note: Court states that annual income or economic background should not be the only parameter to
o identify backward classes.
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Recently the Haryana government declared that OBCs 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 2017 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 01:04:56
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Article 16 (4) must always be read with article 335. 0
•
Article 335: �
o The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into :,:
consideration, consistently with the maintenance of efficiency of administration, in the making I
of appointments to services and posts in connection with the affairs of the Union or of a State. �
l/)
o Provided that nothing in this article shall prevent in making of any provision in favour of the z
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 u
to any class or classes of services or posts in connection with the affairs of the Union or of a
State. (Added by the 82nd ConstitutionAmendment Act) t:J
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• In rgued that the Constitution says by giving quotas we equalize opportunity. But by extending
th to promotions we are trying to equalize outcomes as opposed to opportunities.
e • In 20 12, total number of secretary positions in government of India was 102. Out of 102, SCs were 0,
In STs were 2 and OBCs were 0. For additional secretary positions out of 113, SCs were 5, STs were 1 and
dr
OBCs were 0.
a
• Thus it can be seen that despite giving quotas initially, many don't reach higher ranks due to a concept
Sa
called glass ceiling.
w
• Glass ceiling: Generally observed in corporations (pvt sector) with respect to women due to
hn
patriarchy, where they are restricted from reaching the top positions.
ey
ju • Thus, there was need for quota in promotions and article 16 was amended, by adding clause 4A,
dg giving provisions for promotion of SC, ST but not any backward classes. (77th Constitution
m Amendment Act, 1995)
en o Article 16(4A): Nothing in this article shall prevent the State from making any provision for
t, reservation in matters of promotion to any class or classes of posts in the services under the
th State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the
e State, are not adequately represented in the services under the State.".
co • Later the 85th Constitution Amendment Act added the word 'consequential seniority' to Article
ur 16 (4A). It means that a person from SC/ST community gets promoted before the person senior to
t him from general category, the SC/ST person he would gain seniority. But when the person from
st
general category gets promoted, he would regain his seniority over the earlier promoted person from
at
SC/ST community. This regaining of seniority by person from general category is called the 'Catch-
ed
up Rule'.
th
• The Indra Sawhney judgment also said that unfilled vacancies cannot be carry forward beyond 3
at,
years, if still not filled it will go back to the general quota.
th st
• By the 81 Constitution Amendment Act, Clause 48 was added to Article 1 6 to get around this.
er
o Article 16 (48): Nothing in this article shall prevent the State from considering any unfilled
e
vacancies of a year which are reserved for being filled up in that year in accordance with any
w
ou provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to

ld be filled up in any succeeding year or years and such class of vacancies shall not be
be considered together with the vacancies of the year in which they are being filled up for
no determining the
qu ceiling of fifty per cent reservation on total number of vacancies of that year.
ot
as � 01:24:40
in Nagraj case, 2006
pr • It was regarding implementation of promotion quotas for SCs, STs and persons with disabilities. It
o
m laid down following requirements for availing quotas in promotion:
oti o Backwardness has to be demonstrated by quantifiable data to ensure they are still backward
on
. for availing benefits. (similar to creamy layer filter in OBC)
o T o Article 16 (4A) should be read with Article 335.
h o Community should not be adequately represented at or in higher echelons.
e

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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.

2018
Jarnail Singh case,
•
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 01:39: 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
l/)
community demanding for it. For e.g. Jaats and Marathas were given status of OBC but the apex z
court rejected it. However, OBC are said to be the lower strata of Shudras but Marathas come 0
under Kshatriyas. Despite this Marathas were given the status of OBC.
• Jats in Haryana, Patidars in Gujarat and Marathas in Maharashtra are socially forward but u
economically backward. These are also called as dominant castes. :
a..
•
Dominant castes are those which are demographically significant and own land. :�
•
Land has become fragmented and agriculture is becoming non-remunerative. Despite being socially v
forward due to lack of skills they are economically backward. ;-
•
There are dalit middle class which are socially backward but economically forward due to z
government provisions. 0
en
•
Hence, there is rise in demand for quotas from dominant castes like Jats, Patidars, Marathas, etc.
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 RESERVATI ON DEBATE AND
ARTICLE 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 2014, 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 15 in Ram Singhjudgement.

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 15 (4) and
Article 16 (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 15( 1) and 16(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
determine backwardness.
.-,w • Whenever a community is categorized as backward, the data collected regarding the
backwardness 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
.
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• Thus a need for caste census arises to avoid these situations.
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z Maratha Quota Judgement:
0 00:28:58

<( • Quota was announced by Maharashtra government in 20 14, namely 16% for Marathas and 5% for
w
Muslims in jobs and education. (courts have objected the conferment of backwardness to entire
aJ religion)
w
C • Quota in jobs can be done based on executive order but for educational institutions, a law is required.
z Hence theMaharashtra government extending the quota via executive action was unconstitutional.
0
• Thus SEBC Act was passed in 2018 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 00:35:40

•
Since 103rd 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;
► Inadequaterepresentation.
► 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
variousjudgments 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?

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

•
In the Mukesh Kumar Judgement, Supreme Court said that there is no right to 0 00:48: 13 al
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reservation. Q
•
Article 16 (4) and 16 (4A) are enabling provisions, but there is no fundamental right to quotas. 0
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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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 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 1931 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 (NEET):
•
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.
•
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.

.w,-... Case of Andhra Pradesh:

•
In Andhra Pradesh since the year 2000, there has been a government order which stated that in the
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schools in these areas would be reserved for teachers from ST communities.
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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.
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• Nothing in this article shall affect the operation of any law which provides that the incum bent of an
office in connection with the affairs of any religious or denominational institution or any mem ber ofthe
governing body thereof shall be a person professing a pa rticu lar religion or belonging to a pa rticu lar
denomination
• That means, the person appointed to a statutory board concerning temple administration ca n be
based on religious discrimination i.e. persons belonging to a religious boa rd set up to manage the
prope rty of a pa rticu lar religious institution belong to the specific re ligion only. For e.g. Muslims
managing the affairs of a Muslim religious institution, Hindus managing the affairs of a Hindu religious
institution, etc.

Article 17: 0 01:20:00

• It abolishes the pra ctice of untouchability.
• It is made punishable by law, hence it is non-self-executory,
•
Untouchability Offences Act, 1955 was replaced by Protection of Civil Rights Act.
• However problem with both Article 17 and Protection of Civi l Rig hts Act is that they don't define
untouchability,
• In layman terms, untouchability is a practice in which certain depressed classes a re looked down
upon based solely on their birth.
• Under the Protection of Civi l Rights Act, an offence of untouchability is:
o Preaching untouchability.
o Insulting a member of SC community on grou nds of untouchability.
o Justifying untouchability based on historica l, religious and philosophical grounds.
o Denyi ng ad m ission to a ny pla ce of public resort e.g. worsh i p, hospita l, cremation g rounds, water
resources, restaurants, entertain ment, etc.
• If convicted of offence under this law, then:
o Jail term plus fine.
o Disqualification under Representation of Peoples' Act, 1951 contesting for elections at union and
state level for the duration of sentence and fu rther for 6 years after release.
• Offence committed under this a ct is a cognizable offence (arrest without warrant) and non
compoundable (not resorted to compromise) .
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• The court has the liberty to operate on presumption of guilt i.e. the case is underta ken on presu mption
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of guilt and not presumption of innocence. The court will assume that the person is guilty and the u
accused has to prove that he/she is not guilty. ..I

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• 27% respondent agreed to practicing some form of untouchability across all re ligions.
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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 15% rise in crimes against
SC/ST women and SC/ST children.
• However issues with this law exist, like only around 1/3rd 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 SubhashMahajan
case as well.

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 � FUNDAMENTAL RIGHTS -
ARTICLE c.1:.J 18 AND ARTICLE 19
(PART- 1)
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 Ar istinction, shall be conferred by the State
tic o No citizen of India shall accept any title from any foreign State
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18 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
•
A o No person holding any office of profit or trust under the State shall, without the consent of
b the President, accept any present, emolument, or office of any kind from or under any foreign
o State Right to Freedom
l •
The eagerness of the Constituent Assembly in adding this article can be traced to British practice of
i
t conferring titles. E.g. Knighthood, Rai Bahadur etc.
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Since the government represents society in concrete form, it was as if like the society was
o conferring these titles, hence this tended to create feelings of inequality, inferiority, leading to further
n stratification in a highly stratified society.
o
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So there was eagerness to abolish such a practice.
f
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This British practice of conferring titles was also given with an expectation of a quid pro quo where
t the holders were expected to be loyal.
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Titles of military or academic distinction are exempt from this, example being Professor, PVC etc. This
l barring of conferment is limited to state and hence any private entity is free to confer the title. No
e Indian citizen can receive title from any foreign state and if accepted, the Indian citizenship has
s to be surrendered.
: •
Any foreign national in service of the government, he is not allowed to accept a title except with the
o N
o permission of President.
•
Any person under office of profit under government is not allowed to accept any present, emolument
t or office of any kind from a foreign state.
i
t In 1954, government created four categories of
l decorations:
e • Bharat Ratna, public service of highest order (PM recommends this to the President, not more than 3
,
n names per year)
o • Padma Vibhushan, for distinguished and exceptional service
t • Padma Bhushan, for distinguished service of higher order
• Padma Shri, for distinguished service in any field
b
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i For the Padma awards, the Prime Minister constitutes the Padma awards committee headed by the
n Cabinet secretary, including the Home secretary, Secretary of President and 4-6 eminent persons.
g 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 9th 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 1977 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 1955 and 1971, respectively.
• It has also seen perversion of seniorities. For e.g. While leaders like GB Pant and Indira Gandhi were
awarded in 1957 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 O')
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rejects the recommendations of the committee, it should give cogent reasons for refusal. ....I
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Thus, the conferment of such decorations should not be abolished, but needs reforms in the form of �
not conferring it on past personalities and constituting a broad based committee of persons from outside
the government to recommend names to the government.
Article 19 - (Right to Freedom) 0 00:38:20 <(

• Protection of certain rights regarding freedom of speech etc. C

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• ( 1) All citizens shall have the right
o (a) to freedom of speech and expression;
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o (d) to move freely throughout the territory of India;
o (e) to reside and settle in any part of the territory of India; and :I:
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business
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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
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 se 3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it
cur imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and
ity integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the
of said sub clause
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(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it
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te, imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and
frie integrity of India or public order or morality, reasonable restrictions on the exercise of the right
ndl conferred by the said sub clause
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(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in
rel so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on
ati the exercise of any of the rights conferred by the said sub clauses either in the interests of the
on general public or for the protection of the interests of any Scheduled Tribe
s •
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it
wit imposes, or prevent the State from making any law imposing, in the interests of the general public,
h reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in
for particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it
eig relates to, or prevent the State from making any law relating to,
n o (i) the professional or technical qualifications necessary for practising any profession or carrying
Sta on any occupation, trade or business, or
tes o (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
, trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or
pu otherwise
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ord Explanation:
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All liberties are provided in clause 1-a, b, c, d, e, f (removed), and g.
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These rights are not absolute but reasonable restrictions can be imposed based on law.
nc •
The grounds mentioned for restrictions are mentioned in the constitution itself.
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or Restrictions:
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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),
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and so on, except for 19(5).
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Article 19(1) (a)
in o It concerns with freedom of speech and expression, while the meaning of speech is
rel straightforward, the term expression can be construed in various ways due to our human nature
ati art, cartoon, body language, poetry, films, social media, TV, written work, other ways in which
on humans relate to the world basically.
to •
Inferred rights-some rights can be inferred because some rights are codified in the constitution-e.g.
con right to silence from right to express.
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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. �
• Issues with treating it as criminal offence:
o Civil offenses are private wrongs between the entities involved. Defamation is treated as a private ...
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o It also has a pernicious effect on democratic societies as the fear of defamation leads to self
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censorship on journalists and opposition leaders. As state uses criminal defamation to coerce, it <(
leads to unwarranted self-restraint. The followers of leader start filing defamation, the nature C
of social media non geography leads to cases being filed in multiple parts across the country. <(
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o It is used as harassment of social activists and opposition political leaders.
o Sec 499 also lists acts that would not amount to defamation. For e.g. imputations made on good w
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faith would not lead to defamation, comment made on public performance of public servant,
imputation of truth that serve public purpose. �
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o It has been found that magistrates are mechanically applying the sec 499 without looking at
the exceptions. :I:
o It is the exclusive preserve of elites with the common man unable to go through the hassles to l!)

either defend or go to court to frame charges. ....I

• 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
li: judiciary, and thus shields from malicious campaigns.
► 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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► But in case of contempt of court, the judge presides over his own case.
o Criminal contempt:
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C the court, obstruction of justice which can be abused.
z ► While the Supreme Court has said that the shoulders of the Supreme Court are broad and can
<( take all criticism, hence hypersensitivity is to be avoided.
co
.. ► So when fair criticism trespasses into the territory of scandalizing the court, there is no
yardstick for evaluation. It depends on subjective assessment of application of justice and
hence variability of justice which is violation of right to equality.
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► Equality of treatment in court forums is also a part of equality before law and it may even stifle
genuine criticism and prevent the growth of the institution.
� o Actual intent is ignored:
<( ► In such cases, the courts also do not consider Mens Rea (actual intent) even if there was no

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 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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� 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
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and hence they cannot be published, distributed or sold. This can only be done if the book contains
material
n violative of certain sections in the IPC:
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.J 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
o Sec 124A-sedition
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•
It was not present in original IPC, but added 10 years later.
z •
Whosoever by written word or through any other ways of expression brings or attempts to bring
w into hatred or contempt or excites disaffection against the government amounts to sedition.
::E •
The punishment is 3 years or lifetime imprisonment.
z
•
The idea behind the section feels medieval when the kings expected the subjects to love and admire
= them.
•
> Problems:
u..
 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.
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•
Pornography:
•
Sections against pornography:
o IPC sec 292-sale ,distribution of obscene books, paintings, drawings
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o IPC sec 294-obscene acts or singing obscene songs in public or public place
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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.

•
Apex court has said that viewing pornography is not an offence but the above mentioned are z
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The question of what is obscene is very difficult to decide. zC

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Hicklin test: an old test from UK, anything that tends to deprave or corrupt the minds of those who are ::,
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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

g_ Political interference under sec 6( 1): where revisory powers are given to government over CBFC
•
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O'I certification and the government can overrule the decision of CBFC.
n o KM Shankarappa case , 2000 struck it down later because that practically amounts to government
w.. taking over the function of CBFC.
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Disbanding of FCAT:
•
Government disbanded FCAT recently in April 202 1, and any appeals have to go to the high court,
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Committees concerning CBFC: 0 01:19:40
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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.
o Moreover, if the government feels that with the screening of the film, there would be disturbance
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freedom and expression, because the certification already takes into account restrictions in article
19(2). :I:
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order, as it is the duty of the state to preserve freedom of speech and expression. ....I
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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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Significance of Freedom of Speech and Expression (FoSE):

• It has inherent value:
o FoSE is significant because it has an inherent value; it is a critical faculty/trait unique to human
beings, imaginative commun ication, visual communication 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 FOSE. 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 FoSE. 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 in aiding imp 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.

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: • But any such restrictions must be imposed proportionately i.e. restrictions must only be as much
as the restriction is required to achieve the desired objective and not beyond it.
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e over restricted, and in other situation the restrictions are under-imposed and rights are under-
n restricted, 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.
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c Threats to Free Speech in India: 0 00:26:08
o • Obsolete and old colonial laws, laws based on antiquated morality, no revision of such laws to suit
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contemporary times.
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s • Weakness of the political class to amend, repeal the laws and misusing it to silence dissent.
• Weakness of judiciary to do the same, an example being judiciary upholding sedition law in spite of 3
t percent conviction rate and where relief comes after a long time.
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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 exercisinghis/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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• New value for nation:
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attention to the disaster and hence consequent relief.
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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.
o Note: Nepal is ranked 106th and Sri Lanka 127th 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
more than 3/4th 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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o Mediaacting as judge, jury and executioner and thusacting as kangaroo courts.
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w tend to behave as a court. For e.g. the Khap Panchayat in parts of North India .
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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 judge on a case by case basis can ask the media to postpone the reporting of the court
z proceedings.
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and doesn't act on the media's frivolous behavior. It thus harms the right to be
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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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� 19 AND ASSOCIATED ISSUES (PART-4)
Fundamental Rights - Article 19 and Associated Issues
• It is said that "Good news is no news" as it ca nnot be mil ked for a long time.
• But as media is a business, there is a chase fo r advertisement and thus a mad quest for TRPs which
leads to sensationalism . The C hi nese wa l l between the editorial department a n d marketing
department has been breached a n d comp rom ised . A Chinese wall meant that there would be no
correlation between th e departments.

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• Commodification of News:
o Even serious news is being packaged as entertainment.

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• Yellow Journalism:
o The term describes those media pl atforms who don't ca rry m uch leg iti m ate or wel l researched
content, but depend more on sensational eye-catching headlines to get more views.
• Gonzo journalism:
o In this case, the reporter on g round fa ils to present the news o bjectively in detached man ner and

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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 2012, 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 V)
Supreme Court judge. Of the remaining 28 members, 20 are drawn from the press. Of the w
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FDI• in news media: 0 00:37:10 !<i:
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FDI.
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In 1955 press commission recommended that national interest would be harmed if there is V0
investment in media by foreign entities. )
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Government suppression of media: 0 00:47:35 <(

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the adversarial relationship between the two. :I:
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Therewere alsoreports of government denying ads in newspapers.

Digital news media rules:

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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) � 01: 13:57

•
They are referred toas 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, Whatsapp, Twitter, Youtube, lnstagram, etc.
•
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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Around 4.72 billion people use these globally which form around 60 % of global population.

i(/) Issues due to which IT Rules, 2021 were rolled out:

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Posts inciting violence
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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. V)
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Issues in these rules: 0 01:37:50
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• It covers wide spectrum but the consultation has been limited. :I:
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cannot be a new law unto themselves. Such elaborate rules have no provision in the IT Act 2000,
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overregulation, censorship and hencehave 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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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 Assembly Restrictions on Right to Association

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against the British rule, in the form of:
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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
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educate deprived children howsoever noble the aims may be. �
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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 19 (1) (c).
• Usually issues of protest revolve around fundamental issues concerning a person's life and thus deal
with right to life too and right to protest covers that right as well.
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• S le restrictions, these derived rights are also subjected to reasonable restrictions.
i • In the Amit Sahni judgement, the apex court in context of Shaheen Bagh issue said that the right to
n protest has to be balanced with state's duty to preserve public order, and there cannot be an
c indefinite blocking of a public place.
e • Hence a new ground has come up that is 'inconvenience to the people' and police can take action to
remove the protestors.
t • But detractors say that disruption is a natural corollary to any form of protest, and hence for the
h substantive exercise of this right there should be a substantial tolerance for disruption; else it
e will become a hollow right.
• In the Himat Shah case, 1973, the court said that right to protest does not include right to protest
o anywhere, there cannot be a blanket ban but there will be restrictions.
r • It also said the government cannot place a general ban in all place and areas.
i • The right to assembly is a fundamental right and has to be. In the Rangarajan case, 1989 it was
g adjudged that the right to protest cannot be suppressed based on some illusory, imaginary, far
i removed threat to peace or public order. There should be direct connection if suppression has to be
n done.
a • These rights too face reasonable restrictions but these restrictions should act at the narrowest
l margins.
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i Right to move freely and Right to Reside 0 01:16:13
g • It gives right to move freely and reside throughout the territory of India. The right to move abroad
h is a part of right to life under Article 21.
t • Common set of restriction in clause 5, include interest of general public and protection of interests of
s Scheduled Tribes.
• These right were given to prevent any sub national restrictions on the two freedoms of citizens
a movement and residence
r • As per census 20 1 1, the inter-state migration is 12 percent, while the intra-state migration is
e higher.
• Reasons being purchase of property by outsiders, many state governments follow policy that is
s discriminatory against outsiders like residence based quotas, and women marriages forming a large
u part in intra-state migration.
b • Goonda Acts provide from externment of Goondas for a specific period from a specific place after
j being declared an anti-social element. It restricts a citizen's right to movement. Hence, the
e constitutionality of these acts has been challenged but it has been upheld by the apex court. It has
c further insisted on minimal safeguards against the use of these Goonda Acts.
t
Right to profession, occupation, trade, and business (POTB):
t • Article 19(6) talks about restrictions that can be imposed due to larger public interest, government can
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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
• The state cannot enact ex post facto or retrospective criminal legislation i.e. no criminal law can be
enacted and given a retrospective effect.
• Neither a retrospective amendmentincreasingpunishment can be given retrospective effect. 0
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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 done without consent it will violate article 20(3), right to life
under Article 21.
• 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 the alleged violation of Article 1, of the
Constitution. (200 words) (2013)

Previous Year's Questions

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. slightly different plane from other forms of expression? Discuss. (201'-t)

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 r:TI FUNDAMENTAL RIGHTS - ARTICLE
� 21 (PART- 1)
Significance of Article 14, 19 and 21:
•
Article 14, 19 and 21 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.

Article 14

Golden
Tri angle

Arti cle 19 Article 21

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
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reasonableness of the law. Thus the reasonableness of a law reached the apex court in 1950 itself, in
AK Gopalan Case.
•
The judiciary had not adorned its activist image then. While the article 19 concerning restrictions
says that the restrictions have to be reasonable, the same is not mentioned with respect to Article 2
.N 1.
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In the AK Gopalan case, the court upheld the procedure established by law. There is a view that court
.
.I gave the deference to the constituent assembly that was functioning as a legislature then, to
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not advocate reasonableness and said that under article 21 any law can be made by the Parliament.
•
However in 1978, Menaka Gandhi vs. Uol, the court said that Article 19 and 21 cannot be seen as
water tight compartments, and the test of reasonableness has to be applied to article 21 too, and thus
I gave the test of 'due process of law'.
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This was already inherent in article 19 and thus was incorporated in article 2 1. Thus Article 21
...I protected the individual from executive tyranny as well as legislative tyranny.
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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 thatwhile it should be practiced, an explicit mention should not be preferable. Indiawas 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:
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o There is a general distinction between attempted crime and actual crime, with the actual
crime inviting more punishment than the attempted one.
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does not follow the principles listed in criminal jurisprudence where the punishment for an
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 zw
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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.
• Indian philosophy accepts right to die:
o With practices like santhara, Sita and Ram taking samadhi, right to die has been somewhat
 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
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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. rt.
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• Should the person be allowed to write a will with regards to his property, etc. and write in the will N

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his situation reaches a point where he is totally incoherent, is totally dependent on other people for
basic bodily functions be allowed to die?
• In 20 18 apex court gave legal sanctity to living will. In the year 2000, a person went to The Kerala
High 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
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• This was a request for voluntary death. But the high court denied the permission.
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Expansion of Rights under Article 21: 0 01:10:23
• Most rights are a negative obligation on the state.
• But how do you define life, in biological terms it is simply the physical act of breathing, but the
domain has expanded and hence the negative role of state turns to positive role to preserve life.
 • Exa mples being hea lth , shelter, environ ment and hence the state's responsibility to ensure these, and
thus makes these positive obligations.
• List ofth ings incl uded under Rig ht to l ife:

Health
Healthy environment Privacy Human Shelter
Livelihood
Fair trial dignity Emergency medical
aid
Free legal aid
Reputation Peaceful sleep Speedy trial

• Thus Article 21 has become a ca nopy of rights under which various rights have found nourishment and
g rowth.

Note:
Some rig hts l i ke rig ht to l ivel ih ood is not with i n state's capacity w hile some rig hts l i ke right to
peacefu l sleep can not be the prerogative of the state as it depends on many things.

Problem of Undertrials in Jails: 0 01 :22:27

• An undertrial is a person who is put in jail for an accusation but when thejudgment comes the person is
acquitted for a crime that is he has not committed.
• There are convicts and undertrials in jails, the undertrials are 70% ofthejailed popu lation in India.

Note: The global average of undertrails injails is 32%

Reasons:
• Overworked Police:
o UN norm is 222 police per lakh population, whereas India has 155 per lakh population
• Bail principle not followed:
o The principle of 'bail should be the norm.jail should be the exception' is not followed.
• Judiciary is also over-worked:
o The average pendency of cases in Indian judiciary is 15 years, while in Su preme Court alone it is 4
years.
• Prosecution standards are not high:
o It is said to be the weakest link in the criminaljustice system.
o There is shortage o f prosecutor as wel l as poor q u a l ity o f prosecutors.
• Class bias:
o Poor strata of popu l ation a re not i n a position to affo rd tri als i n cou rts.
o Hence there is a class bias and overwhelming 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 2014, 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. �

• Constitutional provisions dealing with these:

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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 21 (PART- 2)
Custodial Violence:
Apex court in DK Basujudgement in 1997 laid out some guidelines to address this problem:
• The police personnel ca rrying out the arrest and handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with their designations. The particu lars of all
such police personnel who hand le interrogation ofthe arrestee must be recorded in a register
• That the police officer carrying out the arrest 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 family of
the arrestee or a respecta ble person of the loca l ity from where the arrest is made. It shall also be cou nter
signed by the arrestee and shall contain the time and date of arrest.
• A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock up, 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 arrested and is being detained at the particu lar place, un less the attesting witness ofthe memo of
arrest is himself such a friend or a rel ative of the arrestee.
• 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 telegrap h ica l ly within a
period of 8 to 12 hours after the arrest.
• The person arrested must be made aware of his right to have someone informed of his arrest or
detention as soon as he is put under arrest or is detained.
• An entry must 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 informed of the
arrest and the na mes land particu lars ofthe police officials in whose custody the arrestee is.
• The arrestee should, where he so requests, be also examined at the time of his arrest and major and
minor injuries, if any present on hi s/her body, must be recorded at that time. The 'Inspection Memo'
must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to
the arrestee.
� • The arrestee should be subjected to medical examination by the trained doctor every 48 hours
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w Health Services of the concerned State or Union Territo ry, Director, Health Services should prepare
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• Copies of all the documents including the memo of arrest, referred to above, should be sent to the
Magistrate for his record.
I • The arrestee may be permitted to meet his lawyer during interrogation, though not throug hout the
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• There should be a police control room in every district and state headquarters where information
z regarding the arrest and the place of custody of the person arrested must be sent by the arresting
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• 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 11 bulls got included in the list and hence jallikattu got banned,
in 20 14 court upheld the ban.
• The court said Article 21 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 16, 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
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that
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): 00:26:06 u
• 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. zw
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• The court thus rejected binary conception of gender. Any such discrimination would amount to
violation of Articles 15( 1). 15 (2), and 16 which says no discrimination on grounds of sex. z::)
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• Right under 19( 1) (a) also refers to freedom to express ones chosen gender.
• The court said it is not determined biologically but the felt experience of the person. The self
determination of gender is a part of autonomy and liberty under article 21.
 •
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
applicable only to minors.
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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.
•
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:
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Life cannot be taken without procedure of law as mentioned in Article 2 1. There are many
w arguments regarding death sentence provision.
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•
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 retributivejustice.

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 retributivejustice, rather than reformativejustice.
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 retributivejustice is an old medieval notion ofjustice.
•
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 �
brought down the murder rate. .-I
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attacks, more radicalism and propaganda training thus robbing any positive effect of the death u
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 isjustice denied.
•
Extradition issue: zw
o Any attempt in signing Mutual Legal Assistance Treaty (MLAT), extradition etc. becomes an :::E

issue with the morals of European countries which have banned capital punishment. z::)
o Thus many countries are reluctant to sign MLAT treaties as they view death penalty as an LL
abhorrent act.
 •
Law commission in its 35th 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 UN 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.
► 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
� looked independently, but usually both are evaluated against each other.
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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.
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Hence, the aggravating and mitigating factors should be dealt with separately, and should not be
J such that one is weighed against other.

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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 andjudgements of
the apex court in this regard.
(2015)

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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 bejudge 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,
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
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.
w
J .. The Presidentavails this power under Article 72 and Article 161 for the Governors.
•
The natural question that should arise from this situation is that when the best and trained legal minds
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 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:

•
Kehar Singh Case (1991) 0 00:47:51
o In case the President/Governor misused the power of clemency, then can a person go to the
courts to redress this throughjudicial review.
o This question came up before the apex court and it held that the court cannot question the
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decision
of the clemency based on its merits, but the judiciary still has a limited power of judicial review �N
to ensure that the President and Governor consider all the relevant material pertaining to that
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before coming to a decision.
o The President/Governor can examine the evidence afresh before deciding the decision to grant
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. zw
o The powers of clemency cannot be treated like an appeals court above the judiciary and have :::E
to be treated independently of the judiciary.
o These powers cannot be exercised by the President/Governor on their wisdom. These powers z
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have to be exercised on the advice of the Council of Ministers much like every power of the LL
 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
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that 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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J ..
and 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
I
performed.
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• Desirability of a Clemency Board:
...J o In Malaysia, there is a Clemency Board which decides on death sentence, while some countries
z have Advisory committees consisting of the Attorney General.
w o In USA, the constitution of several states mentions a body that will decide on the clemency
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powers, and in some states the Governor is a part of it. Thus the question arises that should we
z: also 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 01:29:46

• Due to the inordinate delay in the death sentence of the convicts, their sentence was commuted to
life imprisonment in 20 14.
• 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 (2015), 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
cannot be a unilateral application of remission by the State Government without the application
coming from the convicts themselves. ..
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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
z
of remission or parole. Thus the Apex court said that in special cases, the court can lay out w
the minimum number of years for remission or parole, apart from the 14 years already :::E

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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21 (PART-4) AND ARTICLE 22
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Ri attention of the judiciary since long and has been subjudice many times.

g • PUCL 1997 case, basically in the context of right to privacy, there was no Information Technology
In

h (IT) revolution yet, IT act was not there too, but telephones were prevalent. Thus the case was dealing

t with telephone tapping which amounted to the breach of privacy of a person.

to • The court accepted that sec 5 of Telegraph Act, 1885 authorized the government to conduct

Pr telephone tapping. But in this regard, no rules had been made. Without rules, this was an unchecked
iv absolute power primed for abuse.
a • The courts said that unlawful tapping is a violation of right to privacy derived from article 19 (1) (a)

c (fear of eavesdropping curbs speech) and article 21. Hence appropriate rules have to be made to do
the same.
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• The court said that tapping can be done only under the following
grounds o Sovereignty and integrity of India
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o Public order
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o To prevent incitement of an offence
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permission for the tapping has to be taken from the
• The apex court also laid out that the
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Home secretary, both at the centre and state level, with provisions of authorization for fixed
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time frame and reauthorization.
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• The order for authorization will also be subject to review by a committee headed at the center by a
cabinet secretary and chief secretary at the state level.
t
o
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.
p Under sec 69 of the IT Act, 2000, there was an authorization to interception of messages, reading of
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messages etc., tracking emails; the grounds mentioned in PUCL case are already mentioned in sec 69 of
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the IT act.
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Puttaswamy Judgement, 2017: 0 00:08:30
c
Aadhaar all kinds of information
A nine judge bench in the Puttaswamy Case was set up because, in
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including biometric was collected, but there were reported cases of leak of Aadhaar data, thus the
central government was an automatic party to the case.
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• Right to privacy can be expanded to deduce thatthere is a private sphere that is unique to a person
a
and that the person has total right to preserve it without disturbance i.e. basically the right to be
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left alone.
• 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 N
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judgement in PUCL case.
•
The courts also held that privacy cannot be compartmentalized in Art 19 and 21 only; it also
w...
includes how a person expresses his sexuality and set the stage for finally decriminalizing section uI
377, food preferences and other areas. The larger essence being right to privacy is a part of part Ill.
•
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 C
to secure his freedom. z
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But the ADM Jabalpur case was made null and void by the 44th Constitution Amendment Act
which �
had the provision that Article 20 and 21 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 21, any restrictions under right to privacy u
can be imposed only by law as decided in Maneka Gandhi case and already present in article 19.
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The government was pushing the notion that socioeconomic rights were more important than the <(
civil 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
fundamental rights. C,
•
Hence it will be allowed to evolve on a case to case basis. ...I

Right to privacy is not absolute and any restriction imposed has to be by law, be reasonable and subject z
w
to test of proportionality.
•
Thus for example in the recent case under Pegasus, any use has to be done under a law that has z
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.

Lawfu l

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Right to be Forgotten: � 00:47:16
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• In today's information age, anything that is done is locked in digital memory permanently and thus
w... acts as double jeopardy and a constant reminder of a person's crimes or mischiefs.
u • 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
< the entire life
I • Delhi High Court termed right to forgotten as a fundamental right, the data protection bill, 20 19, also
contains a similar provision.
::r: Issues with Right to be forgotten:
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• Since internet is of a global nature, enforcement of orders is difficult and hence it may be removed
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from the local internet but not from the global one
z • Can lead to censorship.
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 • Compromise quality of internet.
• Compromise right to information of people.
• May amount to re-writing history.

Medical Termination of Pregnancy Act, 1971 and Amendments: � 01:00: 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.
• Grounds of permission included physical well-being, mental well-being, unwanted pregnancy, failure
of contraception, foetal abnormalities, detected within 20 weeks. N
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• Beyond 20 weeks, no abortion was allowed. w...I
• But many foetal abnormalities can be detected only after 20 weeks, victims of rape discovered later
of being pregnant; it becomes difficult to terminate pregnancy because of the 20 week clause.
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• Third problem was that only a women and her husband could abort, thus any pregnancy out of <(
wedlock went for illegal and unsafe abortions. C
• Thus MTP was amended in 202 1. <( z
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Amended Provisions:
• 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 N
practitioners. Specific cases for e.g. victim of rape, mentally unfit, etc.
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• For foetal abnormalities the upper limit of 24 weeks has been done away with, can abort later too, u
but a permission of a state appointed medical board is necessary. �
• Women and husband replaced by women and partner, this has to be secret abortion and would be <(
punishable if privacy is breached.
• An issue with the amendment is that with poor doctor-patient ratio in the country, women would :::c
still be compelled to go the auxiliary midwives and nurses for abortion. C,

• Another issue is that women's agency i.e. right to decide what happens with her body, has been ...I

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 robbed by a medical board.

Article 2 1A: � 01:17:36

• The State shall provide free and compulsoryeducation 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 in DPSP 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:
N ► The person has the right to be informed about grounds of arrest.
N
w. ► He has the right to consult a legal practitioner of choice.
► He has the right to be presented before the judicial magistrate within 24 hours. The time will not
u include travel time. Beyond 24 hours, it would require an order form the magistrate to keep
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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 01:27:57

• Detention isof 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 N
N
supplies and services.
• The centre can make laws for both union and concurrent list while state only for concurrent list, thus
w...
centre has more grounds under its ambit. uI
Note: No such law can provide detention beyond 3 months, unless the government acquires an opinion of �
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an advisory board consisting of members ranging from present or retired High Court judges or qualified to C
be High Court judges (i.e. lawyers). z
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• 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. [
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• By the 44th amendment act the 3 months detention period was brought down to 2 months, but no N
date had been appointed to bring this into effect. Hence, it is yet to be operationalized. w
• But parliament can also make laws under Article 22 (7) (a) as it mentions that in certain specific cases u...I
the advice of the advisory board will not be needed. �
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• It also does not give a categorical timeframe for a person in detention to be informed about the I

reasons for his detention.

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Laws authorizing preventive detention: ...I

• The Preventive Detention Act, 1950, which expired in 1969
• Maintenance of Internal Security Act, (MISA) 1971 repealed later in 1978 z
w
• The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
z
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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 21 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 21 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
Article 23:
0 00:00:10

• 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
li:: during war or any other emergency, and at that time the state can discriminate based on gender/sex
�
iD" as per this article.
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u section can be implemented. It may create issues as executive action may be arbitrary or
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unreasonable. Under People Union for Democratic Rights case, 1982 the Supreme Court said that
� even though the expression "by law" is not mentioned in section 2, yet the compulsory service cannot
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� be implemented by the state by executive order, it has to be done by Law.
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� o Concerned law regarding sex work is Immoral Traffic Prevention Act, 1956. Following activities
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are crime under the Act:
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� ► Running a Brothel.
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I
o The Act does not explicitly mention soliciting prostitution in private confined of one's home as a
� 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.
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o Pros of legalizing and decriminalizing sex work:
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► If it is legalized, better regulation can be ensured. As currently almost all the sex work took
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be better able to regulate this industry.
z: ► State will be in better position to check the trafficking of women and forced prostitution.
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 ► 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 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): u
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o No child below the age of fourteen years shall be employed to work in any factory or mine or <(
engaged in any other hazardous employment. �
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Explanation: N
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• The list of hazardous employment is mentioned in the Child Labour (Prohibition and Regulation) ...I
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Act, 1986. 18 occupations and 65 industrial processes are listed under this Act. �
• Under the Act, employment of children in occupation other than hazardous employment is allowed. <(

But this conflicts with the Rights provided under Right to Education Act 2009 (Article 21A) (Free and N
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compulsory education to the children of 6 to 14 years of age). �
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• Due to this, the law was amended in 20 16 and the amended law provides for the prohibition of Child N
Labour (Under 14 year) in all type of employment (hazardous as well as non-hazardous) except the w
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o Family Run enterprises. <(
o Audio Visual Entertainment industry.
subject to the condition that it does not interfere in their studies.
• The Act also introduced a new category of Adolescents (14 - 18 years of age) and employment of
adolescents in hazardous occupations is prohibited. The list now only reduced to primarily 3
industries:
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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.
li:: Explanation II:
�
iD" In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to
N persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious
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• Freedom of conscience includes how a person mould his/her inner perspective (relation) towards
<( the Supreme Being is completely up to him/her. The person is completely free to either believe in
� any Supreme Being (god/religion) or do not believe in any supreme being.
LO
N • Right to profess includes the freedom to openly proclaim the choice of religion. It can be done
w either verbally or through visible representation like wearing Turban, Crucifix, Kirpan etc.
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integral to their religion.
� • Right to propagate religion: It gives freedom to propagate the teachings, values etc. of a
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particular 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
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to Convert or not.
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u.... not include the Right to Convert. It also ruled that the conversion to any other religion should
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not be by force, fraud, or allurement.
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Propagatereligion is a hollow/illusory right.
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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:
•
Freedom to manage religious affairs (Article 26):
0 01:11:28
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Subject to public order, morality and health, every religious denomination or any section thereof �
shall have the right - wN
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o(a) to establish and maintain institutions for religious and charitable purposes. I

o (b) to manage its own affairs in matters of religion.

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Explanation ....
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• In this right collective/group right is given to decide the religious customs, ceremonies, and I

religious practices etc. which have been given for individuals under Article 25 as Right to Practice �
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religion.
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• Nikhil Soni Case, 2015: N
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o In this case the Rajasthan High Court banned a Jain practice called Santhara. Santhara is practice �
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of starving unto death practiced among Jains. N
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o According to the Court, the people have the right to practice religious practices but it is subject u
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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 �
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under Article 21 and it is also invoking section 309 (Attempting suicide) and section 306
(Abatement to suicide) of the IPC.
o Article 21 was used by the complainant also to point out that the Right to life does not include
the right to die but it includes Right to die with dignity and Santhara facilitates the Right to die
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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.
li:: o The Bombay High Court in 20 16 allowed entry of women in Shani Shingnapur Temple.
�
iD" o Sabarimala case reached the Supreme Court in 20 17 and in 20 18 the court upheld the entry of
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women in the temple. After the review petition was filed the Court set up a larger bench in 20 19
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• The dynamic interplay among the 4 important factors give rise to many issues, these factor/rights are:
� o Rights to individuals against the State.
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� o Rights to individuals against the individuals.
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� • Right to worship is an implicit part of Right to religion.

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• In 2020 Allahabad High Court looked into the question of whether the Azaan (Calling for prayer by
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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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w 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
opposition from minority communities the government excluded minorities from this Act and the
Act became Madras Hindu Religious and Charitable Endowments Act, 1927.
o After Independence the regulation continued with the same Act in the form of Madras Hindu
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,
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economic activities of the temples, management of properties etc. are secular activities and
not religious practices. It also mentioned that the State will not interfere and decide the
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religious practices. Government was of the view that religious authorities do not have
experience and knowledge to manage Temples efficiently.
� 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.
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o Multiple Temples like Tirupati, Jagannath, Vaishno Devi, Badrinath and Kedarnath etc. are
managed by the Statutory Boards/trusts which are controlled by the state. This led to
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Nationalization and bureaucratization of the Hindu Shrines.
o But in case of Sikh religion the Gurdwaras are regulated by the committee (Shiromani
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Gurdwara Parbandhak Committee) having members elected by the members of Sikh religion
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under Gurdwaras Act of 1925.
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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
It does not Absence of No si ngle
com mon set No common
believe in one one centra centra l
of beliefs set of rituals
God l scri pture 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 Kerala from Travancore Royal Family and gave the management to a Board. The Supreme Court,
as an exception to its earlier stands, restored the management right of Travancore Royal Family in
2020. CX)
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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): ..
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o No person shall be compelled to pay any taxes, the proceeds of which are specifically
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appropriated in payment of expenses for the promotion or maintenance of any particular religion <(
or religious denomination.
Explanation:
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 U)
particular religion. N
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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. u.I

o The Court said that collection of fee from the pilgrims visiting a particular shrine and proceeds of �
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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 Rafique 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 outof
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 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
State funds shall be required to take part in any religious instruction that may be imparted in such
� institution or to attend any religious worship that may be conducted in such institution or in any
premises attached thereto unless such person or, if such person is a minor, his guardian has given
"N his consent thereto.
Explanation:
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For answering two questions:
o Whether religious instruction be provided in education institutions?
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� o If provided, will the students be compelled to attend such instructions?
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N° Article 28 divides the education institutions into 3 categories:
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 to attend those instructions without their consent (for minors the consent of their
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parents is needed).
o Institutions set up by Charitable/religious Endowments: Instructions can be provided, and
...J students can be compelled to attend such instructions even if the institution is administered by
the State.
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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. 00
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• There are many Atheists who do not want to recite such prayers. all
o Argument in favour: N
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• The prayer is not religious instruction as it cannot lead to religious conversion. w
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• Science is a very broad term it also includes religious science, spiritual science etc. the argument u
that prayer affects rationality is very vague. �
• 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 to develop an all-faith prayer or there can be recited prayers from all the religions on
dW 0 0 l :22:10 �
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• Even if it has been known that crime is committed by someone, it does not give to anyone the right u
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to 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 President have not taken decision regarding this yet.
• Tehseen Poonawalla Case, 2018 : -I

o Court ordered to assign nodal officer in every district of the rank of Superintendent of Police and
the nodal officer should form a task force and through this task force take all required measures
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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. � 01:32:27

Babri Masjid issue:

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N • 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 to be the same. Nobody can convert one religious shrine into a shrine of another religion. It
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excluded the Babri Masjid from its purview as the case regarding this was subjudice.
This Act was challenged based on following arguments:
� o The cutoff date is arbitrary.
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o The character of shrines before independence was decided by the British.
N°
o It stops the various religions from claiming those sites which were converted to other
religion's shrines in the past.
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• The lssue:
o Babri masjid was constructed in 1528 by Mir Baqi with Babur's order.
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u 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
<( Masjid in 1992 were illegal acts.
► The Court said that evidences given by the Archeological Survey of India are inconclusive. As
I ASI had confirmed that there was another structure on which the Masjid was built.
(!) ► Court accepted that the Mosque has been existing on that site for the last 500 years.
...J ► The possession of site to be given to Hindu organizations, as the Muslim Organization were not
z be able to prove continuous and exclusive possession of the site before 1856.
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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 BabriMosque 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 18 century (Till French revolution), France was governed by the Autocratic rulers and
th

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.
b:: • The changes that took place during the French revolution are often referred to as De-
� Christianization of French social, political and economic life. During this period (especially between
<( 1789 and 1799) land of the Church which was earlier the largest land holder was confiscated and
i5 other orthodox influence of the Church was reduced.
� • In France the people supported secularism to protect themselves from religious dogmas.
z
:E • During the 19th century the Laicite concept of secularism was born which was influenced by the
Vl French revolutions.
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• Features of Laicite concept of
Secularism: o Anti-clerical character.
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: o State's antipathy towards religion.
:E o Giving priority to national identity as opposed to religious identity.
:E o Protecting individual/civic life from religion: Under this the emphasis is given to free thinking. In
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C the USA the religion is protected from the State and in India protection is given to one religion
z from another religion.
<( o Freedom to practice one's religion: Under this type of secularism, the religion is a private affair and
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 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 �
administration power unlike the case of Europe. �
• In Ancient times almost all the kings gave patronage to one or the other religion but they
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remained tolerant towards the other religions except in a few cases.
• In the Medieval period many Islamic rulers followed religious oppression policy but despite this z
the State-Church (organized religion) relation in India was similar to the relation that existed in
Europe. �
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• Many of the medieval rulers like Akbar followed the policy of tolerance towards the other religions ::i
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e.g. Akbar abolished the Jizya tax. The development of Sufism and Bhakti also promoted z
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tolerance and peaceful coexistence. Sikhism also developed during the 15th century. �
• By the 18th century India had already developed a very long heritage of active management of �
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• The British, despite being deeply involved with the Church in England never pursued religious goals
as State policy. Though they allowed the Christian missionaries to spread Christianity in India. The z
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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:
► Topromote 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
z take in the society. Under this ignorance the kind of society the person wants, and imagines will
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always be a fair society. In terms of religion the person will realize that a fair society should not
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have dominance of any one religion, thus there is need for secularism for the society to be fair.
z< o It promotes Peace. If there is communalism in the society, there will be either physical or mental
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violence in the society.
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economic and political life which is an important feature of true democracy.
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 Note:
When majority of the population p ractice communalism it is called Majority Communalism while
communalism p racticed by minority communities is called Minority Communal ism. Both the types of
communalism are dangerous for the society but the Majority Communalism is worse. This is due to
the reason that the Majority Communalism can be easily passed off as Nationalism because it is
p racticed by majority of the population 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 communalism which is concerned with the inter
faith/Inter-religion tensions, but the communal tensions also exist within the same religion/faith
also. This narrow conception of communalism and Secularism ignores the tensions between
different castes systems, sects etc. within a single religion.
• Extreme Religiosity:
o The core philosophy of all the religions is a similar set of values like Humanity, Compassion, and �
universalism etc. The only values which differentiate one religion from the other are the peripheral �
values like rites, rituals, type of shrines, costumes etc. Overemphasis on the peripheral values leads
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to extreme religiosity and communal disharmony. Excessive focus on peripheral values further
widens the gap among different religions. The focus should be on the core values. z
• Absence of legal and institutional Framework to check communal violence and promote national
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o There is also absence of any dedicated organization/institution for communal harmony. �
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o There is the National Integration Council (NIC) set up by Pandit Nehru in 1962 which includes
members from all the spheres of society in India and the Council is chaired by the Prime Minister. But 0
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2005 not even a single meeting was held. It was revived in 2005 but still very few meetings were <( z

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 held every yea r. This counc il is a type of conference an d does not h ave rea l power.
o The Punchhi Commission on Centre-state Relations (2007) suggested some reforms regarding
NIC which are:
► N IC should meettwice a year and if not twice then it should definitely meet at least once a year.
► It should be g iven a clear mand ate.
► There should be a yearly plan of action and it should be em powered to implement that plan.
o In 1992 an autonomous body under the Ministry of Home Affa i rs named National Foundation for
Communal Harmony was set up. Primary o bjectives are:
► Support to the children who are victims of communal violence.
► Funding fellowships, Scholarships etc.
► Confer awards to Individual s/organizations.
• Social Institutions have failed in providing va lues and education on tolerance, social harmony,
acceptance etc.:
o Fa mily as an institution fa iled to teach these core values.
o Education institutions also failed in this task.
o Pol itical institutions to ca ptu re political power performed in a way that further promoted communal
violence and disha rmony. Communalism is a typical homogenizing concept with the goal of
ca ptu ring p olitica l power. Considering 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.
Communalism should be cu rbed by the second round of large scale social constructive work as done by
Mahatma Gandhi during the Freedom 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 identity.
o Excessive focus on any one identity majorly caste or religion leads to discontent and
ultimately communal tensions.
o Amartya Sen also mentioned that excessive focus on singular identity also affects the Global
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Justice Movement. If people are too much identified with singular identity then they cannot be
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able to participate in the justice movements which are focused towards ending injustice in the
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such NGOs are not guided by singular identities.
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• Short term steps:
o Put in place Institutional framework and strengthen NIC (National Integration Council). There
lIi: should be a National Harmony Commission/organization. There should be an institutional
framework at National, State, District and Village level.
:E 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 0
problems are very severe like persecution of minorities etc. then the country is included in the CPC (Y')

list. �
• In 2020 the USCIRF recommended that India should be placed in the CPC list but the US en
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• If any country is placed in the CPC list then the USA can impose sanctions on that country.
• The organization considered cases like mob lynching, CAA, Anti conversion movement etc. for <(
deciding the status of secularism in India.
�
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, �
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for example Secular word in preamble, Article 14, 15, 16, 25, 26, 27, 28, mention of liberty of faith and ::i
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in preamble, Article 46, Duty of common brotherhood and Duty for rich heritage and composite culture etc. �
Those provisions which are specifically addressed to minorities can be categorized under Special Domain. �
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The Constitution mentions two types of minorities - Religious minority and Linguistic minority. The z
provisionsspecifically directed for linguisticminority are: <(
• Article 347: If a representation is made to the President by a sizablelinguistic minority of any State that
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the language spoken by them should also be recognized as the official language of the State then the
President can direct the State government to do so, if he/she finds substantive merit in the 0::
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• Article 350A: It is the duty of every state to provide education in mother tongue at least up to the (/)
 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 Commissionfor 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 toconserve 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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olS administer educational institutions of their choice.
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.J educational institution established and administered by a minority, referred to in clause ( 1),
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the State shall ensure that the amount fixed by or determined under such law for the
<( acquisition of such property is such as would not restrict or abrogate the right guaranteed
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(Constitutional (44th Amendment) Act 1978).
o (2) The State shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether
lIi: based on religion or language.
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:::i • Recognition of Minority:
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:E on a State to State basis. But in India the religious minorities are identified on a national basis
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C State basis. As Hindu's are in Majority at national level but they are in minority in many
z States/UT's like Jammu and Kashmir, Nagaland, Mizoram and Punjab.
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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 othersects 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 0
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reasonable percentage of children of non-minority communities.
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► Court authorized the State Governments to decide the percentage. en
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► Unaided MEi's can have its own admission procedure but it has to be fair, open and
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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
appointing the teachers in MEi's has not been provided for in the earlier discussed judgment also. �
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The Supreme Court in 2020 upheld this Act and mentioned that for maintaining the quality <(
and excellence of education the teachers must be qualified. It also mentioned that for z
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religious education the Institutions are given adequate freedom for administration but for secular �
education in aided institutes State can interfere as it did through this act. The Court said that �
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MEi's are being given the right to administer the education institutions, not the Right to mal- u
administer the Institutions. C
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o In a contrasting judgment in Pramati Case, 2014 the Apex court denied the implementation of <(

25% reservation for students belonging to Economically Backward Classes in the Minority �
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Education
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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 statusfor 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 BC 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 Courtsaidthatit 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 2019 referred the case to a 7
Judge bench.
• Issue related to Government schemes for minorities:
o The Schemes implemented specifically for minorities are being challenge in the court on following
basis:
► It violates Article 15 (1).
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► There is the presence of the National Commission for Backward Classes for the weaker
olS sections, thus there is no need for the National Commission on Minorities.
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w restrictions provided under Article 14. It also mentioned that these schemes are targeted toward
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o The NCM has said that all the minorities come under weaker sections and the State under Article
<( 46 has an obligation to introduce measures for their upliftment.
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 � RIG HT TO PRO PERTY, ARTI CLE 32,
=.at 33 & 34 & RELATED DOCTRINES
Right to Property 0 00:00: 10
Background:
• Right to property was removed from the Fundamental Rights by the 44 th Constitutional Amendment
Act 1978. 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 31 (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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Various amendments in the Framework of Right to Property:
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ct • 4th Amendment 1955: It amended Article 31 (2) and it added that the compensation cannot be
challenged on the ground that the compensation is inadequate. Still the Court maintained that the
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must be fair and just.
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• 25 Amendment Act 1971: In 31 (2) the word 'Compensation' was replaced by the word 'Amount'.

w Still, the Court maintained that the amount should not be too low as would practically amount to
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M Exceptions to Right to Property: Following four main exceptions were introduced - 0 00:20:00
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N • Article 31A (Added by 1 amendment Act, 1951): If a law is made to acquire large estates from
st
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.J • Article 318 (By 1st amendment Act, 1951):
o By this amendment there was added the 9th Schedule in the Constitution. As per 31 B, if a law is
violating any of the rights in part Ill of the Constitution and is enumerated in the 9th Schedule
then such a law would be immune from Judicial Review. And Article 13 (2) will not be applicable
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Cl. o There is an issue that this amendment does not mention the type of laws that can be included in
0 the 9th Schedule. The only protection in this case is that for listing any law in Schedule 9 there is
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need of Constitutional amendment by the Parliament, Thus States cannot include laws in the 9th

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Schedule.
o Mainly Land reform Acts are listed in the 9 th schedule but there are some other Acts also such as
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Tamil Nadu (Reservation) Act 1993,MRTP Act 1969 (abolished) etc.
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 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 111 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 announced) can be challenged in the Court
and can also be struck down by the Court.
• Article 31C (Added by 25th Amendment Act 1971) :
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 31C was further amended by 42nd Amendment Act 1976 and under this the protection in
Article 31C was extended to all Directive Principle instead of only Article 39 (b) and 39 (c). This (/)
expansion was struck down by Minerva Mills Case, 1980. It restored the protection to Article 39 (b) w
and 39 (c) only. z
• Article 31D (Added by 42nd Amendment Act 1976) : As per this Article, any law that provides for 0:
checking Anti-national activities shall be immune from being struck down on the grounds of violation u
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of Article 14 and 19. By 43rd Amendment Act 1977, the Article 31D was repealed. 0
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44th Amendment Act, 1978: 0 00:47:25
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• By this amendment Article 19 ( 1) (f) and 31 (2) were eliminated/repealed and Article 31 (1) was
removed from Part 3 and the same provision was made legal right and placed under Article 300A. w
• Article 300A mentions that no person shall be deprived of his property save by authority of law. �
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• Though Right to Property is completely removed but the exception to Right to Property which were ,q
31A, 318 and 31C remained in the Constitution. ('I')
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• There is no provision in the Constitution which can compel the State to provide compensation ('I')
('I')
on acquiring property of an individual. The earlier provision which provided for the N
compensation/amount (Article 31 (2)) was removed from the Constitution. w...J
('I')

• Right to compensation still exists for the religious denominations (Article 26) and Minority education u
institution (Article 30 (lA)).
• Article 31A also provides for compensation for acquisition of land within the ceiling limit held by
a person under his personal cultivation and for other structures. Article in this regard mentions that- �
o Provided further that where any law makes any provision for the acquisition by the State of �
any estate and where any land comprised therein is held by a person under his personal w
cultivation, it 0
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 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
l/) Fundamental Rights, while Supreme Court can only issue the writs for enforcement of Fundamental Rights.
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• Article 359 (Rights cannot be suspended unless there is declaration of National Emergency
1- under 352).
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0 Right to Constitutional Remedies
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• Remedies for enforcement of rights conferred by this Part (Article 32):
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M o (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
'I:!' rights conferred by this Part is guaranteed.
� o (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
M the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
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be appropriate, for the enforcement of any of the rights conferred by this Part.
M o (3) Without prejudice to the powers conferred on the Supreme Court by clauses ( 1) and (2),
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Parliament may by law empower any other court to exercise within the local limits of its
u jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
o (4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.
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� Note: B. R. Ambedkar called it the heart and soul of the Constitution.
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 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: (/)
► These both writs are issued by the Higher Courts to Lower Judicial and quasi-judicial bodies. In w
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Certiorari ('to inform') the higher court can call for record in the case where the lower court 1-
has no jurisdiction. If the proceeding in such a case starts, then the Higher Courts can u
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stop the proceeding and if the verdict has been issued then the Higher Courts can strike 0
down that judgment. Hence the writ of Certiorari is both preventive as well as curative in 0
nature. w
► In 199 1 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::
► A writ of prohibition is normally issued when an inferior court or tribunal proceeds to act �
without jurisdiction. By this the Court can stop hearing in a matter over which the lower ,q
('I')
Courts/quasi judicial bodies have no jurisdiction. It is purely preventive in nature. �
('I')
o Quo warranto ('by what authority') : The writ calls upon the holder of a public office to show to ('I')

the court under what authority he is holding the office in question. The writ is also used to N
('I')
protect a citizen from the holder of a public office to which he has no right. w...J
o Injunction (Taken from USA): This writ is not mentioned in the Constitution, but has been used u
by the Courts in India. This Writ is basically an order of the Court asking any entity to do
something or refrain from doing something. This writ is of two types:
► Mandatory Injunction: It is like mandamus but it is issued against private individuals/bodies �
while mandamus is only issued against public authorities. c::
► Preventive Injunction: It is like Prohibition but it is not issued to lower courts like the writ
of prohibition. It is issued to the litigating parties. w
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 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 whilemartiallaw 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.

Related Doctrines � 01:48:25

• Doctrine of Severability:
o Laws inconsistent with or in derogation of the fundamental rights (Article 13):
► (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.
► (2) The State shall not make any law which takes away or abridges the rights conferred by this
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Part and any law made in contravention of this clause shall, to the extent of the contravention,
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0 o Article 13 ( 1) and 13 (2) mentions that the only part which is violating the Fundamental Rights (to
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the extent it is inconsistent with provisions of Fundamental Rights) will be struck down by
w the Courts. This is called the doctrine of severability. The Court will declare the whole Law
Q unconstitutional if there is no possibility of severance between the constitutional part of the law
and the unconstitutional part of the law.
w • Doctrine of Eclipse: Courts by interpreting the term "Void" in Article 13 ( 1) mentioned that the pre
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� constitutional laws which are violating the Fundamental Rights will not be completely void but
M will be eclipsed by the Fundamental rights to the extent of their inconsistency. If that Fundamental
'I:!' Right is removed or changes (Eclipse removed) then the Law again becomes applicable.
� • Doctrine of Waiver (giving up the claims) : Court said that the people cannot waive their
M Fundamental Rights as they are not only the rights given to the people but also the obligation on
N the State to honor those rights. Nobody has the Right to relieve the State from this obligation.
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ARTICLE 35 & OTH ER ASPECTS OF
FUNDAM ENTAL RIG HTS
Article 35 0 00:00: 10
• Part Illofthe 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.
J:
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...J Critical Evaluation of Part Ill of the Constitution
0 00:05:57

• Excessive Restriction: There are excessive restrictions in the Constitution, for example in Article 19
z large part of the Article covers only restrictions.
w • Lack of clarity: There are use of vague terminologies and statements in many of the Articles. There
are 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
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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:
o Complicated as a person has to approach the Supreme Court (Article 32).
w o Expensive as legal services in India are very costly. Hence it is out of the reach of the common man.
Vl • Presence of Preventive detention provisions in Part Ill:
a..
o Preventive detention was useful during the colonial period but after independence its continuation
w is the violation of Article 21 and Article 22.
c:: • Part Ill only emphasizes Libertarian principles which includes mainly political rights influenced by
<( western philosophies and focuses very less on Egalitarian and Socialist principles. These
J: Egalitarian 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.
0 00:30:05
Rights outside Part Ill
• These Rights are constitutional rights but are not Fundamental Rights, thus these are non
Fundamental Rights. :I:
• Statutory rights are the Rights which are available outside the constitution and are provided by any l!)
statute/law e.g. Right under Food Security Act 2013, Right under MGNREGA etc.
• Legal Rights are the rights which are backed by the law. Thus in this sense every right under
the constitution or provided by any statute can be classified under Legal Rights. z
• Various Rights outside Part Ill are: w
o Article 300A (Property Rights). �
o Article 326-Provides Right to be registered as a voter in the Electoral Roll.
o Article 301-Freedom of trade and commerce.
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o Article 265 - No tax can be levied and collected save by the authority of Law. It can also be LL
mentioned that this Right justifies the statement 'No taxation without representation'. The Law by 0
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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.
o Social, economic and Cultural Rights (2nd Generation):
► These Rights emerged in the 19th Century.
J: ► These are also Individual Rights.
(!) ► These Rights include Right to Work, Right to Livelihood, Right to education, Right to
...J Health, Right to decent wage etc.
► With the Industrial Revolution the idea of human dignity underwent a change. The civil and
z political rights were not sufficient for Human dignity, thus Social, economic and Cultural rights
w emerged.
o Solidarity Rights (3rd Generation):
► These Rights emerged in the 20th Century.
z ► These are the Collective Rights.
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LL ► These include Rights of Minorities (Linguistic, Religious and LGBTQ Rights), Right to
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0 Development, Right to Peace, Right to Humanitarian Assistance, Right to Healthy Environment
and Right to Self-Determination.
► Right to Self-determination is very controversial and many countries do not provide for
w this Right. There are also different perceptions regarding Right to Humanitarian Assistance.
Vl India's refugee policy is also full of strategic ambiguities.
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o In the present time there have emerged Rights like Right against genetic manipulation, Right
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to benefit equally from exploration of Cosmic Space, Right to access internet etc. These Rights
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J: • 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. :I:
o (3) The Chairpersons of the National Commission for Minorities, the National Commission for c:,
the 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
o (4) There shall be a Secretary- General who shall be the Chief Executive Officer of the Commission �w
and shall exercise such powers and discharge such functions of the Commission as may be
delegated to him by the Commission or the Chairperson, as the case may be. z::)
o (5) The headquarters of the Commission shall be at Delhi and the Commission may, with the LL
previous approval of the Central Government, establish offices at other places in India. LL
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• Appointment of Chairperson and other Members (Section 4):

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hand and seal: Provided that every appointment under this subsection shall be made after <(
obtaining the recommendations of a Committee consisting of- c:
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► (a) the Prime Minister - chairperson;
► (b) Speaker of the House of the People - member;
► (c) Minister in-charge of the Ministry of Home Affairs in the Government of India - 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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Note:
z The Supreme Court said that any act which is contrary to Justice, Honesty, Modesty and good morals comes
w under the ambit of moral turpitude.

• Term of office of Chairperson and Members (Section 6) :

z o (1) A person appointed as Chairperson shall hold office for a term of five years from the date on
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which he enters upon his office or until he attains the age of seventy years, whichever is earlier.
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o (2) A person appointed as a Member shall hold office for a term of five years from the date on
0 which he enters upon his office and shall be eligible for re-appointment for another term of five
LL years:
Provided that no Member shall hold office after he has attained the age of seventy years.
w o (3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further
a.. employment under the Government of India or under the Government of any State.
l/) • Officers and other staff of the Commission (Section 11):
:< o (1) The Central Government shall make available to the Commission-
c::: ► (a) an officer of the rank of the Secretary to the Government of India who shall be the
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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;
zw
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
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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 w
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recommendations 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 safeguards available for the protection of these rights through publications, the media, �
seminars and other available means; It)

o (i) encourage the efforts of non-governmental organisations and institutions working in the field wM
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of human rights;
o (j) such other functions as it may consider necessary for the promotion of human rights. <(
 • 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
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deem fit against the concerned person or persons;
► (iii) to take such further action as it may think fit;
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o (b) approach the Supreme Court or the High Court concerned for such directions, orders or writs
z as that Court may deem necessary.

w • Procedure with respect to armed forces (Army, Navy, Air Force and CAPF's) (Section 19):
o (1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of
z human rights by members of the armed forces, the Commission shall adopt the following
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LL ► (a) it may, either on its own motion or on receipt of a petition, seek a report from the Central
0 Government;
► (b) after the receipt of the report, it may, either not proceed with the complaint or, as the
w case may be, make its recommendations to that Government.
a.
(/) o (2) The Central Government shall inform the Commission of the action taken on the
<( recommendations within three months or such further time as the Commission may allow.
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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
Protection of Human Rights Act, 1993 are as follows:
Various other Provisions of the
• 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.
u 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
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::r 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):
o (1) The Chairperson and Members shall be appointed by the Governor by warrant under his
< hand and seal: Provided that every appointment under this sub-section shall be made after
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obtaining the recommendation of a Committee consisting of -
z ► (a) the ChiefMinister - chairperson;
z ► (b) Speaker of the Legislative Assembly - member;
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0::: ► (c)Minister in-charge of the Department of Home in that State - member;
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► (d) Leader of the Opposition in the Legislative Assembly - member.
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Legislative Council in a State, the Chairman of that Council and the
Provided further that where there is a
Leader of the Opposition in that Council shall also be members of the Commit tee:
::r: 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 by reason of any vacancy of anyMember in the Committee referred to in sub-section ( 1).
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:,::r: • 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
 addressed to the Governor, resign his office.
o (1A) Su bject to the provisions of sub-section (2) , the Chairperson or any Member of the State
Commission shall only 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 reference being made to it by the
President, has, on inquiry held in accorda nce with the procedure prescribed in that behalf by the
Supreme Cou rt, reported that the Chairperson or such Mem ber, as the case may be, ought on any
such g round to be removed.

Note:
In case of State Commissions, the appointment is done by the Governor but the Chairman and mem bers are
rem oved by the President. Similar protection is also given to the Chairman and members of State Public
Service Commissions.

o (2) Notwithstanding anything in sub-section (lA)] the President may by order remove from office
the Chairperson or any Member if the Chairperson or such Mem ber, 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 sta nds so declared by a competent court; or
► (e) is convicted and sentenced to imprisonment for an offence which in the opinion of the
President involves moral tu rpitude.
• Term of office of Chairperson and Members of the State Commission (Section 24):
o (1) A person appointed as Chairperson shall hold office fo r 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.
o (2) A person appointed as a Member shall hold office for a term of five years from the date on u
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which he enters upon his office and shall be eligible for re-appointment fo r another term of five z:r
years: Provided that no Member shall hold office after he has attained the age of seventy years. �
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under the Government of a State or under the Government of India.
• Annual and special reports of State Commission (Section 28): z
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o (1) The State Commission shall submit an annual report to the State Government and may at any
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time submit special repo rts on any matter which, in its opinion, is of such urgency or importance that
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it should not be deferred ti ll submission of the annual re port.
o (2) The State Government shall cause the annual and special reports of the State Commission to be
laid before each House of State Legislature where it consists of two Houses, or where such
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Legislature consists of one House, before that House along with a memorandum of action ta ken or
proposed to be taken on the recommendations of the State Commission and the reasons fo r non i:
accepta nce of the recommendations, if any. <(
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 • Human Rights Courts (Section 30):
For the pu rpose of providing speedy trial of offences arising out of violation of human rights, the State
Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for
each district a Co u rt of Sess ion to be a Human Rights Court to try the said offe nces:
Provided that nothing in this section shall apply if-
o (a) a Court of Session is al ready specified as a special cou rt; or
o (b) a special court is already constituted, for such offences under any other law for the time being in
force.

Note:
There are hardly any Special Courts established by the States ti ll now. In 2019 the Supreme Court criticized
the State governments for not im plementing this provision.

• Special Public Prosecutor (Section 31): For every Human Rig hts Cou rt, the State Government shall,
by notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an
advocate for not less than seven years, as a Special Public Prosecutor for the purpose of condu cting
cases in that Cou rt.
• Matters not subject to jurisdiction of the Commission (Section 36):
o (1) The Commission shall not inquire into any matter which is pending before a State Commission
or a ny other Co mm ission d u ly constituted under a ny law for the time being i n force.
o (2) The Commission or the State Commission shall not inqui re into any matter after the expiry of one
year from the date on which the a ct constituting violation of human rig hts is alleged to have been
committed.
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< Role of NH RC 0 00:23:47

0 • Role of NHRC is to look into the diffe re nt types of complaints regarding violation of Hu man Rig hts. The
z natu re of complaints that NHRC receives are:
z o Com plaints with respect to Police administration such as custodian deaths, encou nters, custodian
� violence, fa bricated cases, il legal detentions. jail conditions etc.
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0 o Com plai nts with respect to SC/STs.
o Com plaints with respect to bonded labour.
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o Com plaints with respect to child labour.
o Com plaints with respect to communal violence.

::r: o Com plaints with respect to Dowry deaths and sexual harassment etc.

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Some achievements of NHRC 0 00:26:40
• Child marriage Restraint Act, 1929 was replaced by new Act Child Marriage Prohibition Act, 2006 on
the in itiative and encouragement of NHRC. Under the new act any of the parties either girl or boy on
reaching the maturity (18 years of Age) and for a further period of 2 years can apply for declaration of
marriage null and void.
• NHRC regularly notifies the list of Industries where child labour is rampant and by the efforts of the
NHRC several children working as child labour in many hazardous industries have been rescued and
rehabil itated.
• NHRC worked to curb trafficking of women and children. NHRC issued many booklets for sensitizing
the Lower Judiciary to have more sym pathetic attitude towards women who have been trafficked or
who have been working as sex worker. NHRC regularly conduct sensitization workshops for hoteliers
rega rding sex tourism, pedophilia etc.
• NHRC has been in the forefront of the Right to Food campaign.
• The National Action plan on Manual Scavenging has been adopted bythe efforts of NHRC.
• NHRC worked extensively on the cases of human rights violation of SC/ST's. NHRC condu cted many
researches and studies on deprivation of human rig hts for SC/STs. In ST's the NHRC focused on the
problems faced by the denotified tribes. Denotified tribes a re the tribes which were earlier notified as
criminal tribes under Criminal Tribes Act, 187 1 by the British. They have been de-notified after
Independence but a lot of stigmas and problems in those communities continued.
• NHRC also focused on Rights of disabled and problems of HIV positive patients. NHRC also secu red
compensation for the victims of human rig hts violations.

Issues in working of NHRC and SHRCs 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. Hen ce there is a case of
conflict of interest. There is also the issue that there is not adequate staff and fi nance available to the u
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NHRC. This also leads to huge pend ency of cases in the N H R C. :
• There is an overwhelming dependency of NHRC and SHRC on government machinery for the :r
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investigation ofcases of human rights violation.
• The Secretary General of NHRC is a government officer on deputation and DG (investigation) is also a <(
government officer and lacks independence, thus there is huge conflict of interest. There should be an zi5
open merit based recru itment process for filling these posts to ensure their independence.
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• Engagement of NHRC with Human Rights Volu ntary Organizations/NGOs is bare minimu m. c::
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• The com position of NHRC lacks pluralism and the qualification for the appointment of chairman and
member is very restrictive and incl udes only judicial mem bers. The other two members can also be �
d rawn from t he reti red b u reau cracy, th u s fu rther red ucing t h e scope o f a ppointment. Socia l
activists, human rig hts activists etc. should also be considered for the post of chairman and mem bers.
• Almost 95% ofthe recommendations a re accepted by the government but the government creates too ::r:
much delay in their im plementation. ii:
• The 1 year limitation period is too short. z
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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 (GANHRI)

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• It works in close collaboration with the United Nations Human Rights Council.
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: • It assess the working of Apex level human rights institution and assign them two type of status:
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< Status A Status B

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•Bodies fully compliant with Paris •Bodies pa rti a lly compliant with
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n Amendment to Protection of Human Rights Act, 2019 0 01:06:03
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• The qualification of chairman has been changed to and now the qualification
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► (c) one Member who is, or has been, the Chief Justice of a High Court;
► (b) Three Members to be appointed from amongst persons having knowledge of, or practical
experience in, matters relati ng to human rights. And there should be one woman member out of
these three members (Added by amendment).
• Now the list of part time ex- officio mem bers have been amended and new members (3) are incl uded
which are:
o Chairman of National Commission of Backwa rd Classes.
o Chairman of National Commission on Protection of Child Rig hts.
o Chief Commissioner for Person with Disa bilities.
• Tenu re of chairperson and members of NHRC and SH RCs has been reduced to 3 years. Now the
chairperson is also eligible for reappointment.
• Now the Secretary General of NHRC and SH RCs has been given fi nancial and administrative powers
with respect to the Com m i ss i o n. Ea rl ier these powers were su bject to delegation by the
Commission/Chairman ofthe Commission to the Secretary General.

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 DI RECTIVE PRINCI PLES OF STATE
POLICY ( PART - 1)
Sources and Inspirations of DPSC 0 00:00:25
• Instrument of Instructions framed under Government of India Act 1935.
• 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 (Ar ticle 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.
� ► Many of them are in the form of moral principles like Article 51 and these moral principles
t cannot be made justiciable.
� ► Inadequacy of socio-economic development: For example the principles like Local Self
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0 Government (Article 40) and Uniform Civil Code (Article 44) can only be implemented when
a. the society is prepared for them in terms of socio-economic capacities.
LU 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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a. ► The view of the Court began to change in the late 1960's and 1970 's. By series of judgment
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� • Government can amend Fundamental Rights to implement Part IV so long as the amendment
a. does not violate Basic Structure.
• Fundamental Rights should be adjusted in their scope to accommodate DPSP. Best example
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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

,,,,---........
DPSP

Socialist Principles
X A
Ga ndhia n Li be ra l/I nte
Princ iples l lectua l Principles
'-....-/ '-....-/
Principles under DPSP �

• State to secure a social order for the promotion of welfare of the people (Article 38) (Socialistic
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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 the institutions of the national life. LL
o (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to 0
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eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also ..I
amongst groups of people residing in different areas or engaged in different vocations. Q.
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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.

• Equaljustice 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.

• Right to work, to education and to public assistance in certain cases (Article 41) (Socialistic

t Principle):
The State shall, within the limits of its economic capacity and development, make effective provision
� for securing the right to work, to education and to public assistance in cases of unemployment, old
� age, sickness and disablement, and in other cases of undeserved want.
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0 • Provision for just and humane conditions of work and maternity relief (Article 42) (Socialistic
a. Principle):
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� The State shall make provision for securingjust and humane conditions of work and for maternity relief.
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0 • Living wage, etc., for workers (Article 43) (Socialistic as well as Gandhian Principle):
LU.. The State shall endeavour to secure, by suitable legislation or economic organisation or in any other
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way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work
0 ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities
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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 w e a k e r sections (Article 46) (Socialistic as well as Gandhian
P r i n c i p l e ) : 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. �

• Duty of the State to raise the level of nutrition and the standard of living and to improve public :J
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health (Article 47) (Socialistic as well as Gandhian Principle) : Cl.
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The State shall regard the raising of the level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties and, in particular, the State shall I-'
(/)
endeavour to bring about prohibition of the consumption except for medicinal purposes of 0
intoxicating drinks and of drugs which are injurious to health. LU
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• Organisation of agriculture and animal husbandry (Article 48) (Socialistic as well as Gandhian z
Principle): Cl.
The State shall endeavour to organise agriculture and animal husbandry on modern and scientific
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lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the i'.=
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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
• Article 39:

t o Clause b and c are implemented throughvariousprograms and policies like:

► Nationalization: It was also indicated by Article 19 (1) (g). Civil aviation sector, Banks and
Insurance sector etc. were nationalized by the government.
� ► Land Reforms
� ► Five Year Plan
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a. o Clause d has been implemented by the Equal Remuneration Act, 1976.
LU o Clause e has been implemented by:
� ► Child Labour (Prohibition and Regulation) Act, 1986.
� ► National Commission for Protectionof Child Rights.
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a. o The Legal Services Authorities Act, 1987: It provides for a three tier framework consisting of
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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, 2016 and affirmative actions for them (Reservation).
• Article 42:
o Factories Act, 1948.
o Maternity Benefit Act, 1961.
• 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. :J
• Article 45: 0
Cl.
o Earlier provision of this Article was provided by including Article 2 1A in the Constitution by the LU
86th Amendment Act 2002. The Right to Education Act, 2009 provides for its implementation.
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o For current provision there is Integrated Child Development Scheme (ICDS). (/)

• Article 46: 0
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o Whole gamut of Affirmative Actions is thebest illustration of implementation of this Article. ...I
• Article 47: Cl.
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o National Rural Health Mission. z
o National Urban Health Mission. Cl.
o Ayushman Bharat Program.
o Swacch Bharat Scheme. LU

• Article 48:
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o Institutions like Indian Council for Agriculture Research, National Dairy Research Institute. 0::
 o Dedicated agriculture institutions in the States.
• Article 48A:
o Wildlife Protection Act, 1972.
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 95 1
• Article 50:
o Code of Criminal Procedure, 1973 took away the power of DistrictMagistrate 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

t • 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
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0 larger publicinterest, can be termed as Socialism.
a. • 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:
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0 Marxism/Communism Fabian Socialism
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a. The objective of socialism ca n be achieved by The objectives can be achieved by evolution
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a. State control of all means of production. Mixed economy but the State would regulate it
LU to subserve larger public good.

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Stateless and Classless society, antipathy towards State Bureaucracy is the principal instrument
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:: a extension of the elite class only.

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Totalitarian Government. Democracy.
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 ministers. :J
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Significance of Part IV LU
• It amplifies the social and economic justice pledge of Preamble.
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• It provides for consistency and stability in policies. Even with change in government these principles 0
remain the same. It provides for a common set of directions to the Central Government as well LU
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• They are complementary and supplementary to Fundamental Rights. z
• They are justiciable in people's court as they can be used as yardstick for measuring performance of Cl.
any political party in government.
• Even with liberalization, privatization etc. all provisions have not become redundant. As with LU
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 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 DPSP became more and more
important.

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DI RECTIVE PRINCI PLE OF STATE
POLICY ( 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
N' the liquor consumption in 5 star hotels and though government registered sellers and banned

� consumption and sale in small bars and hotels. This was a clear violation of Article 14 but the Kerala

t High Court and Supreme Court upheld it.

• Narula Case, 1967: The Court said that if State considers any profession, occupation, trade and
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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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Article 48 and Issue related to Cow Slaughter 0 00:25:30
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husbandry on modern and scientific lines and shall, in particular, take steps for preserving and
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cattle.
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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.
N°
• Assam Cow Protection Bill, 2021:
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
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. t
o It bans slaughter of cows of every age. �

Uniform Civil Code (Article 44) 0 00:56:37 �

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• Laws which govern personal matters like marriage, divorce, maintenance, adoption, succession and
inheritance etc. should be the same for every citizen of the country. And these uniform civil 0
norms/laws are termed as Uniform Civil Code. Presently different personal laws are applicable in the
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communities like Muslims. This was done because the identity of these communities especially I-'
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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
N' 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 marriage immediately.

Supreme Court Opinion on UCC: 0 01:15:04

t • UCC is desirable but sudden implementation may produce some adverse consequences for the Unity
and Integrity of the Country.
� • In Democracy there should be progressive and gradual changes.
(J • The Court cannot direct the legislature to make Law for the implementation of UCC.
:J • Shah Bano Case, 1985:
0 o Section 125 of CrPC is religion-nevtral section which provides for the maintenance of wife by the
a. husband on monthly basis in case of divorce subject to the condition that she does not remarry.
LU o Section 127 of CrPC mentions that if under the personal law wife is entitled to some kind of
� maintenance payment then the Section 125 that shall not apply.
� o The issue that was raised in this case was that does the Mahr (Money) that is being pledged by
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LU... applies or not). Muslim husband has to maintain the wife for the lddat Period of only 3 month
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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.
N°'
• 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.
• According to National Family Health Survey (NFHS- 201 1) the people who have more than one
surviving wives are :
o Muslim-2.5% of their Population
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o Hindu- 1.7% of their Population.
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 DIRECTIVE PRINCIPLES OF STATE
POLICY (PART-3)
Benefits of Uniform Civil Code:
•
Reduce burden of legal 0 00:00:48
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.

National
consolidation

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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
mythologies, etc. Aspects like rationality and morality are still evolving.
w o This was one of the main reasons why UCC was not made justiciable by the constituent assembly in
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•
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: 17:17
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, �
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Article 44 says that state shall 'secure' for citizens a Uniform Civil Code. Hence, the word 'secure' w
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Till the time society reaches the needed maturity, focus on other directive principles of work, �
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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.

0 00:30:05
Shariat courts:
• The All India Muslim Personal Law Board (AIMPLB) is an NGO set up in 1973 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 legallyrecognized 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
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w • 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 42nd
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

V) According to Article 51A. it shall be the duty of every citizen of India:
w (a)to abide by the Constitution and respect its ideals and institutions, the National Flag and the National
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(c)to uphold and protect the sovereignty, unity and integrity of India; (a moral 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
civic duty) (Added by the 86th amendment act, 2002).

The notion of Dutiesunder 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 V)
engage in anti-social activities, which is likely to influence our brotherhood, unity, integrity, harmony, j:::w
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• Message -The fundamental duties send a message to the citizens that they are not mute spectators,
rather they are active participants in the process of nation-building. zw
• 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
directions/guidelines towards the states without legal sanction and part IV-A (fundamental
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duties)
 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 19 of the constitution, but the law is trying to implement a fundamental duty, it will not
be immediately struck down under Article 13 (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
Thiscase is related to the environmental issues, in which the Supreme Court said that:
• The government must ensure that all students up to )(h 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

Thiscase is related to fundamental duty 51-A( j). In this judgement, the courtsaid 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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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 (SWEEP - 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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 � UNION EXECUTIVE -
� TH E PRES I D E NT O F I N D IA ( PART- 1)
Article 52
•
There shall be a President of India.

Election of the President of India:

0 00:01:21
Provisions of the Constitution
•
Article 54 - Electoral college
o The President s ha 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; and
► The elected members ofthe Legislative Assemblies (M LAs) ofthe States.
o Explanation: In this article and 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 in the Pa rliament.
The exclusion of Members of Legislative Councils is because Legislative Cou ncil don't exist in all
states.
o Even though the President is the Head of State at the centra l level , the state M LAs a re include d in
the election, to avoid the situation where the President is just the 'creature of the ruling party at
Centre' and remains 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 ofthe Electora l Col lege.

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y would result into a waste of taxpayers' time, money and energy, adding to the log istical
is nightma re fo r the Election Commission of India.
th • A direct election cou ld also lead to attitudinal problems where the President would start
e to misread his constitutional position and assu me de-facto powers thereby leading to
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conflicts between the President and the Prime Minister.
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• A direct election fo r the President would be fought on personal issues rather than real
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io issues as the President would not e njoy powers to take effective decisions and hence
n there wou l d not be a m a n ifesto fo r the el ectorate. This wou l d g ive way to confl icts a n d
of strife based on rel igion , caste, class etc.
th • Furthermore, a direct election would compel him to comp romise on the statesmanship
e he is supposed to show while holding the office of the President. He may become prone
P to di rty politics, name calling, derogatory campaigning, etc.
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 0 00:32:11
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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: -
► (a) every elected member of the Legislative Value of Vote of an
Assembly of a State shall have as many votes Population of the state (197 1 census)
M LA ·HOOO
Total number of Elected members
as 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
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other fractions being disregarded. (Value of vote of anMP was 708 in last Presidential
elections) [
o (3) The election of the President shall be held in accordance with the system of proportional <
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representation (achieve votes above a certain quota) by means of the single transferable vote 0
and the voting at such election shall be by secret ballot.

Electoral Quota = Valid Votes

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Electoral Quota = Va l +1
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o As per some constitution experts, the system is neither proportional nor a single transferable vote i
system. It is not proportional as only one candidate is being elected; rather it is a majoritarian s
system. It is neither a single transferable vote system, as multiple votes get transferred after h
elimination of the candidate receiving the least first preference votes. e
o Explanation: In this article, the expression "population" means the population as ascertained at d
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 s
hall, until the relevant figures for the first census taken after the year 2026 have been
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 Criticism of election system for President:
•
It is a highly complex system.
•
Value of votes of MLA from different states is different.
•
It is neither proportional representation nor single transferable vote system.

Facts:
The Returning Officer:
•
For Lok Sabha or state assembly elections, generally the District Collector/Magistrate is the
Returning officer.
•
He/she performs the task of scrutinizing nomination papers of candidates and fu rther rejects or
accepts the same.
•
He/she ensures that the election is conducted in a proper lawful manner, including fair counting
of votes, announcement of resu lts, etc.
•
For President ' s election the Returning officer is the Secretary General of Lok Sabha and Secreta ry
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: 01:30:22

•
Green Ballot Paper - M Ps
•
Pink Ballot Paper- M LAs

Other:
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Proxy vote and N OTA are not allowed in the election of the President.
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v; Article 56 - Term of office of the President
w o ( 1) The President shall hold office for a term of five years from the date on which he enters
a:: upon his office: Provided that-
a. ► (a) the President may, by writing under his hand addressed to the Vice-President, resign his
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::r: ► (b) the President may, for violation of the Constitution, be removed from office by impeachment
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in the manner provided in article 6 1.
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� his successor enters upon his office.
::, : o (2) Any resignation addressed to the Vice-President under clause (a) of the proviso to clause ( 1)
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•
Article 57 - A person who holds, or who has held, office as President shall, subject to the other
z provisions of this Constitution be eligible for re-election to that office.
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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 and 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. [
o (3) The President shall be entitled without payment of rent
to the use of his official residences and shall be also entitled
TH E PRESIDENT'S EMOLU M ENTS AND
PENSION ACT, 1951
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to such emoluments, allowances and privileges as may be • Act of the pa rt ia m ent LL
determined by Parliament by law and until provision in which d etermin es the 0
that behalf is so made, such emoluments, allowances and emohJments, all owa nces and
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privileges as are specified in the Second Schedule.
o (4) The emoluments and allowances of the President shall •Any changes i n the emoluments of 0
not be diminished during his term of office. the President have to amm end th i;s en
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Note: The President does pay tax on his income. However, there is one way through which the
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President can avoid paying income tax. As per the Volu ntary Surrender of Salaries (Exemption of
Taxation) Act, 1961, if the President chooses to surrender his salary to the Consolidated Fund of India,
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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
•
President and Vice Presidents Election Rules 1974

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 � UNION 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 IN TH E OFFICE OF
PRESIDENT

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 n the absence of the Vice President as well, the Chief Justice of India will officiate. In his absence as
well, the judge next in seniority will officiate. In his absence as well, the judge next in seniority will
officiate, so on and so forth.
• In the United States, according to the Presidents Succession Act, 1947, the vice president will
officiate if the president is not there. However the unlike India, the US Vice- President remains the
president for the remainder of the term of the president he has replaced. Whereas in India, the vice
•A
president can officiate as the president for a maximum period of six months.
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• In the absence of even the Vice president in the US, the President of Senate Protem officiates as the
p president. There is no scope for a member of the judiciary to become the president of the United
e States of America.
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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 impeached for violation of the Constitution, the cha rge sha ll be
preferred by either House of Parliament.
(2) No such charge sha ll be preferred unless-
(a) the proposal to prefer such charge is contained in a resolution which has been moved after at least
fou rteen days ' notice in writing signed by not less than one-fourth of the tota l number of
members of the House has been given of their intention to move the resolution, and
(b) such resolution has been passed by a majority of not less than two-thirds of the tota l
membership of the House.
(3) When a charge has been so preferred by either House of Parliament, the other House shall
investigate the cha rge or cause the cha rge to be investigated and the President shall have the right to
appear and to be represented at such investigation.
(4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of
the tota l membership of the House by which the charge was investigated or caused to be
investigated, declaring that the cha rge preferred against the President has been sustained, such resolu
tion shall have the effect of removing the President from his office as from the date on which the
resolution 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. IMPEACHMENT �
•
A 14 day notice has to be served to the President, signed •The word �
by at
least one-fourth of the total members of the house. 'IMPEACHMENT'constitutionally and
•
After the expiry of 14 day notice, the resolution is discussed legally only refers to the President of 0
by the house and put to vote. It must be passed by the India
highest
majority
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house. i.e. two-thirds of the total membership of the
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After getting passed, the resolution goes to the second house (investigating chamber) . �
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In the investigating chamber i.e. the second house, the President is given opportunity to defend w
himself. When the second house also passes the resolution with a majority of two-thirds of the total 0
membership of the house, the President stands impeached. tnw
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• No such proceedings have been initiated for any president in Indian history. !l.
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0 00:21:47 :I:
Powers and duties of the president: �
• Article 53: The executive power of the Union shall be vested in the President and shall be exercised w
by him either directly or through officers subordinate to him in accordance with this Constitution. � >
•
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 u
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the state's power.

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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 42nd 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.

0 00:53:35
Executive Powers:
•
Administrative powers
o Article 77: Conduct of business of the Government of India
► (1) All executive action of the Government of India 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 ofan order or instrument which is so authenticated shal l not be called in question 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 ofthe 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.
•
Theserules 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 shall be the duty ofthe Prime Minister-
► (a) to communicate to the President all decisions of the Council of Ministers relating to the
administration ofthe affai rs ofthe Union and proposals for legislation
► (b) to furnish such information relating to the administration of the affairs of the Union and
proposals for legislation as the President may ca ll for; and
► (c) if the President 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.
o Article 75: Other provisions asto Ministers: -
► ( 1) The Prime Minister shall be appointed by the President and the other Ministers shall be
appointed by the President on the advice of the Prime Minister.
■
(lA) The tota l number of Ministers, including the Prime Minister, in the Council of Ministers
sha ll not exceed fifteen per cent. of the tota l number of members of the House of the People.
■
(1B) A member of either House of Parliament belonging to any politica l party who is
disqualified for being a member of that House under paragraph 2 of the Tenth Schedule
shall also be disqualified to be appointed as a Minister under clause ( 1) for duration of the
period commencing from the date of his disqualification till the date on which the term of
his office as such member would expire or where he contests any election to either
House of Parliament before the expiry of such period, till the date on which he is declared
elected, whichever is earlier.
► (2) The Ministers shall hold office during the pleasure of the President. (2) The Minister shall
hold office during the pleasure ofthe President.
► (3) The Council of Ministers sha ll be collectively responsible to the House ofthe People.
► (4) Before a Minister enters upon his office, the President shall administer to him the oaths of �
office and of secrecy according to the forms set out for the purpose in the Third Schedule
► (5) A Minister who for any period of six consecutive months is not a member of either House l�
of Pa rliament sha ll at the expiration of that period cease to be a Minister
► (6) The salaries and al lowances of Ministers sha ll be such as Parliament may from time to time by z ci
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law determine and, until Pa rliament so determines, shall be as specified in the Second
Schedule. 0
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Pleasure Doctrine: 0w
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According to Dr. Ambedkar, the pleasure doctrine stands on two pillars -confidence of the
house and purity of administration. V)
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Confidence of the house ensures that the government enjoys majority in the house a.. 0:::
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Purity of administration ensures that the administration is clean, non-corrupt, lawful and rules w
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based. 1-
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The president can act on evidence against the Governor, the Council of Ministers as well as the >
Prime Minister, depending on the graded scale of the strength of evidence with the highest scale of i==
evidence for the Prime Minister and the lowest for the Governor. u ::::>
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Military Powers
o President of India is the supreme commander of the defense forces.
o He/she can declare war, conclude peace on the advice of the Council of Ministers headed by the
Prime Minister.
•
Diplomatic Powers
o President is the Head of state and often represents India in international affairs.
o He appoints India's diplomatic missions abroad li ke Ambassadors, High Commissioners, etc.
o He also receives diplomatic missions from abroad.
•
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 Parliament.
o He can also dissolve the Lok Sabha.

• Process of calling all members of the

SUMMON Parliament to meet

• Prorogation is the end of a session.

PROROGATION

• Adjournment terminates the sitting of

ADJOURNMENT the wh ich meets again at t h e time
for t h e next sitting
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oH report of CAG, U PSC, Finance Commission, etc.
e o Article 85 - Sessions of Parliament, prorogation and dissolution.
(l) The President sha ll from time to time summon each House of Pa rliament to meet at such
l time and place as he thinks fit, but six months shall not intervene between its last sitting in
a one session and the date appointed for its first sitting in the next session.
y (2) The President may from time to time-
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(a) prorogue the Houses or either House;
d (b) dissolve the House of the People.
o o Article 86 - Right of President to address and send messages to Houses
w (1) The President may address either House of Parliament or both Houses assembled together,
n and for that purpose require the attendance of members.
(2) The President may send messages to either House of Pa rliament, whether with respect to a
s Bill then pending in Parliament or otherwise, and a House to which any message is so sent shall
e with all convenient dispatch consider any matter required by the message to be taken into
v consideration.
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 o Article 87 - Special address by the President
►At the commencement 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 rliament assembled to g ether and inform Pa rliament of the causes of its
summons.
►Provision sha ll be made by the ru les re g ulatin g the procedure of either House for the allotment
oftime for discussion ofthe matters referred to in such address.

Explanation:
►The President g enerally talks about the retrospective record of the achievements of the
g overnment and also about the policy proposals that the g overnment is li kely to follow in the
ensuin g year.
►This address is not actually that to the President, it's prepared by the Union Government.
► To comment and skipped part of speech by the President a re beyond the norms of
constitutional propriety.
►At the end of the discussion of the President's address, a motion of thanks is passed by the
Pa rliament. 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 Presidentfor 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'.
z o Any bill trying to alter the principle of distribution of revenues between the centre and the states.
5
LL o Any bill trying to impose a surcharge for the purpose of the Union.
•
0 Article 304: Restrictions on trade, commerce and intercourse among States.
z.
Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law-
(a) impose on goods imported from other States [or the Union territories] any tax to which
...wQ similar goods manufactured or produced in that State are subject, so, however, as not to
discriminate between goods so imported and goods so manufactured or produced; and
(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with
0:: or within that State as may be required in the public interest:
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w Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in
w the Legislature of a State without the previous sanction of the President.
:
....
I Explanation
w Any bill of the State Legislative Assembly trying to impose tax on goods imported from other states or
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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.
0 00:17:25
Assent to legislation and veto powers:
•
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.
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• Qualified Veto - When President rejects the bill after its passage, but the legislature passes the bill Q
again by special majority (greater than simple majority) to override the veto of the President and the z
bill becomes an Act. LL

• Pocket Veto - When the President does not accept or reject the bill and takes no action. (In the 0
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United States, the bill is deemed to be passed if the President does not act upon it within 10 days). z
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Veto Available to the President of India vi
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Yes No Example c::
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Absolute Veto ✓ PEPSU (Appropriation) Bill, 1954 :I:
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Suspensive Veto ✓ (modified form) ✓ Office of Profit Bill, w
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Pocket Veto ✓ Indian Post Office (Amendment) Bill,

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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.

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 E enjoyed by the President, he has one more power of reserving the Bill for the consideration of the
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p o When the President receives the consideration request from the Governor, he can disallow the
l passage of that particular Bill.
a o The reservation of the Bill for President is mandatory when the bill threatens the powers of the
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Article 201: Bills reserved for consideration: -When a Bill is reserved by a Governor for the
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n to the House or, as the case may be, the Houses of the Legislature of the State together with such a
t message as is mentioned in the first proviso to article 200 and, when a Bill is so returned, the House or
h Houses shall reconsider it accordingly within a period of six months from the date of receipt of such
e message and, if it is again passed by the House or Houses with or without amendment, it shall be
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e o For a money bill reserved for consideration of the President, he can accept or reject it, but cannot
o return it.
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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.

Ordinance making power of the President

0 00:45:58
•
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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two houses of Parliament within six weeks of its reassembly. After six weeks, the ordinance �
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make laws on areas over which the Parliament can make laws), but it is not a parallel or a coordinate c:
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months plus six weeks as the maximum gap between two sessions of the Parliament cannot be �
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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 Bri tish had introduced the ordinance making power in India in 1861.
•
Ti ll 1947, no less than 400 ordinances were promulgated by the British. They used as a tool to
disregard popular opinion.
•
Post-independence, in the constituent assembly debates, the ordinance making power came to
be called 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 promulgated by the Nehru government.
•
In 1978, demonetization was routed through an ordinance.
•
Till 2014, 668 ordinances have been promulgated. In the last 7 years, 78 ordinances have been
promulgated.
•
In totality, since independence, on an average, more than 10 ordinances were promulgated per
yea r.

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 of ordinances promulgated. One of the reasons for it is the coalition governments.
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Another reason for the rise in ordinances since the 1990s has been the strategy adopted by the
government to take some important actions under the law to be promulgated by an ordinance.
o These important actions are difficult to overturn as it may affect the lives of millions of citizens.
o Hence the Parliament has no choice but to accept the ordinance and pass it. This is a situation of
'Fait Accompli'.
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Thirdly, the large majority of the government especially since 2014 has resulted into neglect of
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Additional information:
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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 concerning 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 fill such a vacuum created by judicial review.
•
However many other constitutional experts counter this view by giving the example of USA where the
judicial 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
when later the ordinance lapses or becomes invalid, still the decisions taken under the law would
hold. Hence an ordinance has permanentlegal effects.

Additional information:
•
In the Krishna Kumar Case, 2017 the apex court agreed that the wisdom of an ordinance can be �
questioned in the court of law. Also, the court said that the decisions taken under a lapsed ordinance
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The 38 Constitutional Amendment Act, 1975 placed the power of ordinance beyond judicial V)
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Convene a session of the Parliament within one week of promulgating an ordinance.
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Rubber Stamp - Golden
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• Golden faci lities under the name of the P re s i d e n t h a s
provided with zero President, hence he has " u n s p e c i fi e d
decision maki ng power enough powers reserve of discretionary
powers" as a guardian
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 C ent represents the nation, but does not rule it. (The draft constitution also had a 'schedule of
o instructions' for the President and the Governor as ceremonial heads to act on the advice of
ns Council of Ministers, which was later dropped in the final constitution, as it was considered obvious)
tit Supreme Court Judgements on President as Ceremonial head:
ue • Ram Jawaya, 1955
nt UN Rao, 1971 - Even when the Lok Sabha gets dissolved after its tenure completion, the Council of
A Ministers which was a product of it does not get dissolved, as there is no situation mentioned in the
ss constitution under which the President can exercise his powers without the aid and advice of
e the Council of Ministers
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Constitution Articles on the position of President as ceremonial head:
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• Article 361 - The president or governor cannot be personally questioned in any court of law for
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n any act done in official capacity, as those acts are actually the acts of the government, done under
the name of the President
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• Article 74 - provides for a Council of Ministers which shall aid the President in the exercise of the
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President's functions.
p • Article 78 - Duty of the Prime Minister to provide information to the President about the decisions of
os the government. This article suggests that the Council of Minister is not only an advisory body, but a
iti decision making body.
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iE THE PRESIDENT OF INDIA (PART - 4)
President's Discretion: 0 00:00: 11
•
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
dissolution of the House and asking for fresh election Circumstantial
discretion of the
when he has lost majority in the House. The President constitution
can 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, butthe
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
[ o Sending messages to the Parliament
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When the President is confronted with an unconstitutional advice, he must bring to bear on the
0 government the weight of his moral authority, by using the options available to him under:
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Article 78 - Seek further information from the Council of Ministers after it has advised the
z President, which the President thinks is unconstitutional.
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Article 74 - Send the advice of the Council of Minister for reconsideration
C For eg. President KR Narayanan sent back the advice to impose President's rule in UP in
in 1997 for reconsideration.
w Thus, it can be said that the President is like a 'Great Grandfather in a large joint family'. The joint
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family can be consulted by him, advised by him, warned by him but finally the decision is made by the
. younger generation in the family.
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Constitutional Head
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Providing a stable government
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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.

President's Role
Worki ng President
Ru bber Sta mp ( Mi d d le Path) Activist President

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

Narayanan):
•
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 Kalam �

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Previous Year's Questions
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Q. Re.sorting to ordinances has always raised concern on violation of th e. spirit of separation of 0w
power doctrine.. While. noting the. rationalesjusti+ying the. power to promulgate.. analyse. whether tn
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power. Should the. power to promulgate. the. ordinances be. re.pealed ? (2015) :I:
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 UNION EXECUTIVE -
COUNCIL OF MINISTERS (PART- 1)
Portfolio System: 0 00:00:22
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It is the division of government work into separate departments and assigning these departments to
specific individuals whoare 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 1861.

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

•
Council of Minsters are real executive codified under Article 74 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:

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 ies, involved in making important decisions. A 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 and is generally assisted by a Minister of
State or a Deputy Minister or both.
•
Minister of State with Independent charge: Usually given charge of a ministry that is not significant
enough or the minister heading the ministry is not considered senior enough in the party hierarchy so
as to be given a cabinet rank. He cannot attend the meetings of the Cabinet in his own right but can
attend if invited.
•
Minister of State: They are appointed within the portfolio of the cabinet minister and work under the
authority of the cabinet minister. Eg. Meenakshi Lekhi (Ministry of External Affairs), Gen. VK Singh
(Ministry of Road and Transport). Ministers of state do not take any part in any cabinet meetings.
•
In the earlier times, the hierarchy was extended below the minister of state to include the position of a
Deputy Minister. The deputy Minister was kind of a trainee post to train the future ministers. In recent
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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Post-election Minority Coalition (support from outside) [

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A pre-election coalition is given more preference as they are formed before the election and hence
have ideological and policy convergences. Whereas a post-election coalition did not coalise before
the elections. Hence their motive of coming together usually is acquisition of power. Hence political z
parties diametrically opposite to each other may also come together. This builds an LL
inherent sense of instability in post-election coalitions. 0
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Minority Coalition-some coalition partners give support from outside i.e. they don not form part of u
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coalition tends to be a bit unstable than the majority coalition.
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advice of the Prime Minister. While advising, the Prime Minister has certain considerations to ensure, w
such as :
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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 VP 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
[ • When there is a rivalry in the party, hence to avoid intra-party friction and split Eg. Indira Gandhi
V) and Morarji Desai, Vajpayee and Advani.
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• Address coalition compulsion Eg. VP Singh, Chandrashekhar

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Size of Cabinet and Council of Ministers:
•
Advantages of a small sized cabinet:
o More elaborate and effectivediscussions and deliberations
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u o Burden on the tax payer is lesser
o Easier to maintain secrecy of meetings and decisions
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an objective view for decision making.
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w policy outlook. Eg. Integrated transport policy, integrated energy policy.
o A lesser size of the Council ofMinisters allows more number of big leaders to go among the
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Kitchen Cabinet: 0 01: 13:43
• It is also known as the 'inner cabinet'. It could include some Cabinet ministers, Principal Secretary to
the Prime Ministers, some retired bureaucrats, pol itical leaders and even at times some godmen.
• It is not an official organization.

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( PART- 2) AN D PRI M E M I N ISTER

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.
•
The Cabinet being the leader organization of the nation has to perform the function of crisis
management.
c::
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Cabinet Dictatorship is a stark reality:
o Extensive powers of the cabinet
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o Prime legislative body
ii: o Principal policy making body
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No Cabinet can become omnipotent (checks and balances on the cabinet ):

z o Judicial checks
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o Media checks
� o Public opinion
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Independent constitutional and statutory bodies like Election Commission, CAG, NHRC etc.
Party Pressure
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z o Global constitutionalism-WTO agreements, international treaties, conventions, etc.
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> • They are appointed to assist and lessen the burden of an overloaded agency like the
cabinet.
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They save the time of the cabinet by helping in resolving minor conflicts, bargaining and
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compromising among the ministries in order to ease in making a holistic policy formulation for
the
cabinet.
z • They facilitate more effective debate and deliberations.
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They are more inclusive as it includes Ministers of State as well as Ministers of state with independent
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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
•
Cabinet Committee on Employment and Skill Development chaired by Prime Minister
Usually these cabinet committees last for the entire 5 year term of the government. However the Prime c:::
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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: �
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Some of them are set up on trivial issues like accommodation.
0 00:56:32
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Junior ministers can be appointed but are rarely appointed.
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Meetings do not take place regularly. <( z
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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 Prime Minister) (/)
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Adhoc Cabinet Committees: 0 01:01:07
•
They are created for a temporary basis particularly for discussing and deliberating on a specific z
issue or a bill. They are dissolved once the issues are resolved. LL
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They are often referred to as Groups of Ministers (GoM). 0
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During the UPA II tenure, no less than 78 GoMs were set up. uz
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In order to address the policy paralysis with the GoMs, Empowered Group of Ministers (EGoMs) ::J
were set up. It was supposed to take faster decisions even bypassing the cabinet. This eroded the 0
collective responsibility of the cabinet. u
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In 20 14, all these GoMs and EGoMs were discontinued. w
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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.
o His death or resignation dissolves the whole council of ministers.
0:: o He automatically becomes the leader of whichever house he is a member.
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o He chairs important government bodies like NITI Aayog etc.
o He is supported by powerful organizations like the Cabinet secretariat and the Prime Minister's
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Office (PMO).
z o He holds some of the most critical portfolios like the Department of Space, Department of Atomic
� Energy, Ministry of Personnel, etc.
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o He is the celebrity vote-getter.
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Role vis-a-vis the cabinet:
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•
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.
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It also compromises the collective responsibility of the cabinet.
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Role vis-a-vis the Parliament:
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o Advice to the President with regards to nomination of members to the Rajya Sabha. 0
o It is his duty to ensure and maintain proper cordial atmosphere in the Parliament and build <{ z
harmonious relationships across the aisle.
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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 [
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. c::
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Ideally the PM should come from the house to which the council of ministers is directly accountable
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come from the Lower House i.e. the Lok Sabha. It was rejected by the congress as it considered �
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Role vis-a-vis the Planning Commission: z
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Role vis-a-vis External Affairs:
o Actively involved in improving and engaging with foreign partners

1 0
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. ofthe. cabinet ? Discuss. (201"1)

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 U N I O N EXECUTIVE - PMO, CABI N
ET AN D CABI N ET S EC RETARIAT
Cabinet Secretariat: 0 00:00:38
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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. therebyenablingthe cabinet to function on the principle of collective responsibility.
•
It is also responsible for implementation of rules of business in letter and spirit.
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It is the chief coordinating agency of the Government of India.
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It keeps the president and the ministers informed about the activities of all other ministries by way
of a monthly summary.
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It can also promote new policy initiatives.
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It retary is considered to be the head of the civil services in the country.
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The position has been accorded the 11th rank in the Table of Precedence.
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He is the principal adviser to the Prime Minister.
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He is often regarded as the conscience keeper of the civil service of the nation - whatever behavior
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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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He presides over the conference of the chief secretaries of various states.
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He also chairs the Civil Services Board which advises the Cabinet Committee on Appointments.
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Since 20 10, a minimum guarantee of 2 years has been given to the tenure of the Cabinet Secretary,
o which can go beyond the retirement age as well, and is further extendable by 2 years.
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NR Pillai was the 1st Cabinet Secretary and Rajiv Gauba is the present cabinet secretary.

m Prime Minister's Office (PMO):

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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.
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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 CA RES Fund, etc.
•
During the Indira Gandhi's government, all important decisions
like nationalization of banks, abolition of privy purses,
imposing emergency, processing intelligence reports, w
overseeing appointments in the governments were taken by 0::
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During the Rajiv Gandhi government, the PMO became so
powerful that it came to be called the 'government of 1-
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implementation arm.
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Thus, the PMO becomes the reflection of the Prime Minister's
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personality and his strength in the Lok Sabha. Its role waxes and <{ z
wanes depending on the stature of the Prime Minister. Generally the PMO tends to be weak during a
coalition government. z
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It is said that the PMO is one of the youngest organizations in the government, yet one of the iil
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With the strengthening of the PMO, the office of Principal Secretary to the Prime Minister becomes cS
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A strong PMO ensures continuity of support and advice for the Prime Minister due to stable >
tenure of the Principal Secretary. j:::
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The PMO also shoulders some responsibility for coordination among various ministries and
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Effectively deal and interface with the backend offices of Presidents and Prime Ministers of other countries. z
However, it must be ensured that the PMO is made to work through the system and not z
bypass it. ::,
 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.
•
Exercise general supervision over implementation of the policies without getting involved in the
day to-day implementation.
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It is the clearing house of government decisions.
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It performs the function of institutionalized memory by keeping records of the decisions made
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earlier, so as to follow the precedent and consistency in decisions.
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It helps in maintaining the continuity in administration.
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It serves as a channel of communication between different ministries, between the central and the
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• The Janata Party government cha nged the name of Prime Minister's Secretariat (PMS) to Prime
Minister's Office (PMO) in 1977.
• The Secreta riat is a headquarter organization, supposed to be involved in the process of policy
making.
• Janata Pa rty saw that how strong and centralizing the PMS beca me under the Indira Gandhi
government.
• So to impress upon the people that they would restore the PMS to the same status during the
Nehruvian times, they renamed the PMS as PMO.

Additional information:
• In order to remember the items in the union, state and concu rrent list, fi rst go through the lists
thoroughly.
• Instead of remembering all su bjects, try to remem ber and ma ke note of those su bjects where
confusion may occur, highlightthose, and remem berthose highlighted ones.
• For eg. -
o M i nes an d M i nera l s - state l ist
o Industry - state list
o Tra de an d Com merce - state l ist

Union Ministries on State list subjects: 0 01:26:50

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• I n the state govern menta l set u p, m ini stries re l ated to the su bjects i n the state l ist a re fou nd . 0::
However, at the central level, ministries relating to the subjects not only in the union list but also u
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• As the centra l m ini stries on state li st s u bjects perform very basic functions and confine
themselves to those functions only. Fol lowi ng a re those basic fu n ctions performed by the 0
centra l m ini stries formed on state li st s u bjects:
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o Disseminating best practices with respect to implementation of a policy.
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Centrally Sponsored Scheme is prepared by the central government dealing largely with a state
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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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 UNIO bly, Dr. Ambedkar described the office of the CAG as 'the most important office under the
Constitution'.

N The principal responsibility of the CAG is to audit the accounts of state and central governments which
•

are spending the taxpayers' money.

EXEC Itindependence
is so significant in the financial accountability of the government that it must be given
•

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
UTIVE 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.
•

0 00:03:45
COMP ( 1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the
Article 148: Comptroller and Auditor-General of India:
•

TROL 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
•

LER 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.
AND (3) •
The salary and other conditions of service of the Comptroller and Auditor-General shall be such
as may be determined by Parliament by law and, until they are so determined, shall be as specified
AUDIT inhistherights
Second Schedule: Provided that neither the salary of a Comptroller and Auditor-General nor
in respect of leave of absence, pension or age of retirement shall be varied to his
OR Additional information:
disadvantage after his appointment.

GENE The •
status of CAG is largely equivalent to that of a Supreme Court judge with respect to condition
of service, salary, oath, etc.
RAL The CAG (Duties, Powers and Conditions of Service) Act, 1971 determines the conditions of
•

service, tenure, age of retirement, etc. - provides 6 year term and 65 years of age for retirement.
OF As it is not mentioned in the Constitution, but under the CAG (Duties, Powers and Conditions of
Service) Act, 1971, any amendment would require a change in the Act and not the Constitution.

INDIA (4) The Comptroller and Auditor-General shall not be eligible for further office either under the
•

(PART Government of India or under the Government of any State after he has ceased to hold his office.
- 1) Additional information:
However, the former CAG Vinod Rai was appointed as The Chairman of Banks Boards Bureau.
•

•
Many experts called this as a violation of clause (4) of Article 148.
•
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•
(5) Subject to the provisions of this Constitution and of any law made by parliament, the conditions
of service of persons serving in the Indian Audit and Accounts Department and the
t administrative powers of the Comptroller and Auditor-General shall be such as may be prescribed
by rules made by the President after consultation with the Comptroller and Auditor-General.
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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 of the States as were conferred on or exercisable by the Auditor-General of India
immediately before the commencement of this Constitution in relation to the accounts of the i
Dominion of India and of the provinces respectively. <(
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Following are the specific duties of the CAG as per law made by the Parliament i.e. The CAG c5
(Duties, LL
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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 c:
having LA) zw
► Public account of lndia/states/ UTs having LA w
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► Contingency Fund of India /states/ UTs having LA c::
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Expenditure from accounts of union territories without legislative assemblies is a part of the ::J
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expenditure of the Union government. Hence, it is audited by the CAG under accounts of the union
government. 0
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Consolidated Fund of India and public accounts of India and of the states - Article 266 w
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It is like the purse of the government. ..J
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All money that the government earns or gets as revenue or gets as loans forms the consolidated 0
fund. c::
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Article 266: �
(1) ) Subject to the provisions of Article 267 and to the provisions of this Chapter with respect to 0
the assignment of the whole or part of the net proceeds of certain taxes and duties to States, u
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 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, and all revenues received by the Government of a State, all loans
raised by that Government by the issue of treasury bil ls, loans or ways and means advances and
all moneys received by that Government in repayment of loans shall form one consolidated fund
t o be entitled the Consolid ated Fund o f t he State.
Public Account of India - Article 266
•
(2) Al l other public moneys received by or on behalf of the Government of India or the Government of
a State s ha l l be entitled to the public account of India or the publi c acco unt of the State, as the
case may be. (For eg.- Provident Fund, Small savings, Post Office Savings)
•
(3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be
appropriated except in accordance with law and fo r the pu rposes and in the manner provided in this
Constitution.

� Additional information:
� Contingency Fund of India - Article 267

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(1) Parliament may by law establish a Contingency Fund in the nature of an imprest to be entitled the
Contingency Fund of India into which shall be paid from time to time such sums as may be determined
LL by such law, and the said Fund shall be placed at the disposal of the President to enable advances to
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...I be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending
authorisation of such expenditure by Parliament by law under Article 115 or Article 11 6 .
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Note: Whatever money has been taken out and spent from the contingency fund, proper accounts
l!) need to be prepared which have to be submitted later to the Pa rliament and the Pa rliament has to
0::: fi nally approve it. Hence, in case of contingency fund, expenditu re comes fi rst and approval comes

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� later.
Imprest : A sum of money given in adva nce fo r a pa rticu lar purpose.
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C Contingency Fund Act, 1950 is the law made by the Parliament as per clause (1) of Article 267. The
z amount in the contingency fu nd has been Rs. 500 crores annually since 2005. However, the Budget
<( 2021-22 had a proposal to increase the fund allocation to Rs. 30,000. crores.
•
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0::: o Audit and report on all:
� ► Trading, manufa ctu ring accou nts;
0 ► Profit and loss statements, maintained by any department of central, state and union territories
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w with legislatu res. For eg. Ministry of Railways, Department of Posts, etc.
o Audit of the receipts of the government of India as well as the states to satisfy the ru les made in
> this behalf are so desig ned as to secure an effective check on the assessment and collection of
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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 VI 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 leanings, it would enter through such entities which are outside the regular routine <(
framework of government of India. c5
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These entities were supposed to perform purely commercial functions and in certain sectors the LL

government tried to establish monopolies. 0

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PSUs can generally take two forms:
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government owned, there is no private participation. RBI was the first corporation to be set up zww
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auditing entity. Hence there are corporations that are fully audited, partially audited (privately �
audited in consultation with the CAG) and those totally outside the purview of the CAG (RBI, UC, FCI). c5
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compiling and preparing those accounts. �
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Issues in the working of the CAG: 0 01:20:36

•
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.
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In the USA, the Comptroller General heading the Government Accountability Office (GAO) is

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In Australia, the appointment of the CAG is subject to ratification and confirmation by the
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India, being a member of Asian Organization of Supreme Audit Institutions (ASOSAI) and
i International Organization of Supreme Audit Institutions (INTOSAI) should abide by mission
n statement and charter of these institutions which indicate the manner in which the apex
t auditing institution should function, be such a way that complete independence is guaranteed.
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In this context, it is recommended by experts that a broad-based committee involving the
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Prime minister, the Leader of Opposition in Lok Sabha and the Chief Justice of India should
d be involved in appointment of positions like the CAG, UPSC, and Election Commission.
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Who should be appointed:
t o It is recommended by the experts that people who are career auditors and accountants from the
h Indian Audit and Accounts Service (IAAS) should be appointed as the CAG. However till date,
e among the 14 CAGs only the first three came from the IAAS. Of the remaining 11, 10 have been
P retired IAS officers who were appointed as the CAG.
r o This has an adverse impact on the morale and motivation of the officers of the IAAS.
e o Moreover it may also result in conflict of interest, where an IAS officer serving a department
si before retirement is asked to audit the same department after retirement as the CAG.
d o An incentive to work for an IAS officer after retirement may also lead to politicization of the
e civil services.
n o Thus, it is recommended that the position of the CAG should be clearly encadred i.e. earmarked
t only for the members of the IAAS.
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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 spent was authorized by the Parliament.
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performance evaluation. Performance evaluation entails the reasons for inefficiencies which do
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 UNION EXECUTIVE - COM PTROLLER
AN D AU DITOR GENE RAL OF IN DIA ( PART- 2)

• Types of audit to be done by CAG

(continued): o Propriety Audit: 0 00:01:16
► 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.
► It also slows down the pace of development in the
country. o Arguments in favor of propriety audit:
► However, it must be understood that the role of CAG is more than just tallying the accounts
and expenditure, which any B.Com. graduates can do.
► Moreover, the supreme auditing institutions across the world are involved in the function
LL of propriety audit.
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there. But during the course of the audit, if a prima facie case of fraud, impropriety,
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Additional information:
The 2G spectrum case:
• Auction ca n ta ke place either through open bidding (the highest bidder gets the
contract) or th rough first come first serve basis.
• The allocation was made through first come fi rst serve basis, to which the CAG had
o bjected and amou nted the revenue loss to the tu ne of Rs. 1.76 lakh crores.
• The government justified the decision by claiming that due to fi rst come first serve policy
the price of the natural resou rce was not jacked up as in case of open bid ding. This
ultimately hel ped the end users by getting spectru m at lower rates, thereby lowering the
end consumers' phone bil ls.
• H owever, after the o bjecti on of the CAG , the Su preme Cou rt a lso q ua s hed the a l l ocations
made and as ked for fresh allocations through the open bidding p rocess. However the
revenue raised th rough open bidding cou ld only be amounted to Rs. 10,000 crores.
• Experts point to the fact that due to prevalence and competition from 3G, 4G
technologies by then, the 2G spectru m cou ld not generate the expected amount of
revenue. �
• Ordina ri ly, the auditors should not question the policy. However, if on a prima fade basis it
is discovered that the policy itself is wastefu l or fraudu lent, then the CAG has the right to g_
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The function of a CAG: 0 00:54:08
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 Viability Gap Funding

• A grant one-time or deferred, provided to support infrastructure projects that are

economica l ly justified but fa l l short of fi nancia l viabil ity.
• The Viability Gap Funding (VG F) provided for economic infrastructure will be extended to
social infrastructure.

• 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.

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i paper, thereby reducing the net revenue to be shared with the government.
o • Association of Unified Telecom Service Providers vs. Union of India, 2014: The CAG can perform
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l which have revenue sharing agreement with the government to ensure that they do not dupe the
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o • The CAG does not conduct audits as such for the local bodies.
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o The law does not give the CAG adequate powers to obtain documents from the government.
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action against the departmental officials who are refusing to respond to his audit queries.
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• CAG is a judge without the power to sentence:
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v o He can only make allegations in the report to be submitted to the parliament, taking action on it
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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.
o This ultimately would hold the government accountable and improve the financial governance in
the country.
• Quality of audit reports: �
o As per the International Organization of Supreme Audit Institutions (INTOSAI) guidelines,
senior
auditors from other countries come to do a review of India's audit process and give some
recommendations. Similarly Indian auditors go to other countries.
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 UN ION PARLIAM ENT ( PART- 1)
- I NTRODUCTION
Article 79: Constitution of the Parliament: 0
00:00: 11
• 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 27A 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:
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0 • Nominated members: 12
• Representatives of states: 238
:> • Total member in council of states: 250
C • Current strength: 245 (229 from states, 3 from Delhi, 1 from Pondicherry, 12 nominated)
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Article 81: Composition of the Council of People:

0 00:08:00
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(1) Subject to the provisions of Article 331 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 z
boundaries so as to ensure equal proportional representation of seats in the Parliament. 0
Thus there must be inter-state as well as intra-state balance with respect to distribution of seats as ::)
per the population. 0
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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.

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(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 1-
this clause to the last preceding census of which the relevant figures have been published shall, until z
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the relevant figures for the first census taken after the year 2026 have been published, be �
construed: <(
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For the purposes of sub-clause (a) of clause (2) and the proviso to that clause, as a reference to 0::
the
1971 census and; (Note: This is inter-state reorganization) z
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For the purposes of sub-clause (b) of clause (2) and the proviso to that clause, as a reference to 0
the 200 1 census. (Note: This is intra-state reorganization) z
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Note:
• The last delimitation commission fo r 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 fo r 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 = 2 8 = 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,
the tenure of the 5th 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, 1959.

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.

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;
o (e) if he is so disqualified by or under any law made by Parliament
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• (2) A person shall be disqualified for being a member of either House of Parliament if he is so
disqualified under the Tenth Schedule ::)

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Office of Profit clause as criteria for disqualification:
• The principal function of any Member of Parliament (MP) orMember of Legislative Assembly (MLA) is
to pass bills, discuss and debate on them, while holding the government accountable by asking 0
critical and troubling questions. 0::
• If the government starts appointingMPs on some important status bearing government positions like 1-
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chairpersons on boards of PSUs, etc. it may hamper their working as a legislative member.
• With lucrative government positions comes various powers and privileges which the appointed MP
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.
• However, for the purpose of clause ( 1) of Article 102, a person shall not be deemed to hold an 1-
office of
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 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.
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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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 UNION PARLIAM ENT ( PART- 2)
- SPEAKER OF TH E LOK SABHA
Article 93: The Speaker and Deputy Speaker of the House of the People 0 00:00: 11
• The House of the People shal l, as soon as may be, choose two mem bers of the House to be respective
ly Speaker and Deputy Speaker thereof and, so often as 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 ke r or Deputy Spea ker, as the
case may be.

Note: The position of Speaker and Deputy Speaker were created by the Government of India Act, 1919.
In those days the Spea ker and Deputy Speaker were referred to as the President and the Vice President
respective ly.

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 unique privilege that, whenever he becomes a member of any
Pa rliamenta ry committee, 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 member holding office as Spea ker or Deputy Spea ker of the House of the
People o (a) shall vacate his office if he ceases to be a member ofthe House ofthe
<( People;
:I:
o (b) may at a ny time, by writi ng under hi s hand add ressed , if such mem ber is the Spea ke r, to the
Deputy Speaker, and if such member is the Deputy Spea ker, to the Spea ker, resign his office; a n d
�
o (c) may be rem oved from his office by a resolution ofthe House ofthe People passed by a m ajority
w of all the then mem bers of the House: Provided that no reso lution for the pu rpose of clause (c) shall be
:I:
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LL moved unless at least fou rteen days' notice has been given of the intention to move the resolutio n:
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w o Provided fu rther that, whenever t he Hou s e o ft h e People is d issolved , t h e Speaker shall not
� vacate his office until immediately before the first meeting of the House of the People after the
0. dissolution.
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Note: No grounds have been mentioned in the constitution for the remova l of the spea ker and the deputy
spea ker.

In clause (c) , the m ajo rity required is called 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: 11
•
( 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
as 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 cc
otherwise took part in the proceedings
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Article 96: The Speaker or the Deputy Speaker not to preside while a resolution for his removal from w
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office is under consideration 0 00:12:46
• (1) At any sitting of the House of the People, while any resolution for the removal of the Speaker
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from 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 absent
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House of the People while any resolution for his removal from office is under consideration in �
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instance on such resolution or on any other matter during such proceedings but not in the case of an c::
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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.
Additional information:
:I: <( Why the Speaker is called as the Speaker?
c •
He hardly ever speaks during the session, neither does he actively participate in debates or give
a his views on a bill or a motion.
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The only time he speaks is to tell the MP to sit down, to be disciplined.
l� •
This convention of calling him a speaker comes from Britain. In earlier periods, the Speaker's
responsibility was to sum up the viewpoints of different sections of MPs in the House and
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In present times, even though this function is not performed, the term 'Speaker' is still used.
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n •
Can only cast a casting vote: In order to secure his independence, he is not only disallowed to speak
i
or give his opinion on the bill, but also cannot vote in the first instance. He can only cast a casting
c
a vote in case of a deadlock.
t
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Exemption under Anti-defection law: If the speaker chooses to resign from the political party after
e getting elected as the speaker, in order to show impartiality, he/she is exempt from disqualification
it under the Anti-defection law to secure their independence.
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• 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.
• The Speaker is given the 7th 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 <(
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elected to the House in the 2 nd
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 �
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Ministerial offices, governor offices, etc. Hence the convention should be 'once a speaker, always a
speaker, and then nothing else'. The speaker should resign from active politics after his 2nd term a..
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and 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
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Minister, there should be some consultation with the Leader of Opposition, in order to gain the z
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 UNION PARLIAM ENT (PART-3)
- CONDUCT OF LEGIS LATIVE BUSINESS
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.

(/)
(/)
Note: At the state level as well, there is a quorum as per Article 189. However, the quorum shall be at
least 10 members or one tenth of the total number of members of the House whichever is greater. This
is provided so as to consider the legislative assemblies which already have less number of total
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Actual voting procedure in the Parliament: 0 00:09:48

> • Voice note: When the debate has been done, the speaker simply asks the members in favour of the
bill to say 'Aye' and those not in favour to say 'Nay'. The speaker would decide the matter based on
(/)
the voices of Ayes and Noes. Hence voice note is a form of informal voting.
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• Division: If the speaker feels that the ayes and noes were very close, then he may go for division of
LL votes. It is a formal voting exercise.
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of a panel beside every MP's seat and the MP can operate it by pressing the dedicated buttons
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o Another method of division is that of distribution of slips or ballot papers.
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seat in groups of 'Ayes' and ' Noes'.
o Another method is that of asking the members to go to the lobbies. E.g., Those who said 'Aye' can
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go to the right-side lobby and ' Noes' to go to the left-side lobby, and then a headcount is done.
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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 MP
•
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 of the MP under
days without the leave of the House i.e. without taking
Article 102
permission of the House. (The 60 day period would not include
Absent from the sitting of the
the days when the house is prorogued or adjourned for a period House
• of more
Dual than four consecutive days).
membership:
Dual membership
(/)
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gets elected, then his seat in the first house gets vacant. u;
o When a person who is not a member of either of the Houses, gets elected to both the houses ::,
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simultaneously, and within a specified time period fails to indicate his choice of seat, then his seat w
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in the Rajya Sabha falls vacant.
o If a person contests two seats in the same house, gets elected to both the seats, within a specified (/)
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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

•
Original Bills: They contain fresh proposals, not seeking to amend an already existing u
bill.
•
Amendment Bills: They seek toamend analready 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 � w
a sunset clause (its date of expiry).== :J<
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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 z::,
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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'.
(/)
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A gazetted officer is usually a Group A or Group B (in some cases Group C) officer, whose appointment,
transfer, removal, dismissal, etc. with respect to a gazette post are all recorded and published in the
vi official gazette of the government.
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2nd Reading/stage : Discussion
> o In this stage, a general discussion of the Bill takes place.
o After the general discussion, the parliament has various options before the bill reaches the stage
(/) of detailed consideration, which are as follows:
w ► Send the bill to a select committee of that house, in order to investigate the bill in a
...I detailed manner
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► Circulate the bill for eliciting public opinion
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C o However, all these options are optional and not mandatory. The house can directly send the bill
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3 reading/stage: Voting on the Bill:
z 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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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 bill or pass it as it is. It is up to the Lok Sabha to accept or reject the proposed
:J amendments by the Rajya Sabha. After 14 days, the bill is deemed to be passed.
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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 (/)
Sabha gets dissolved after the joint sitting has been called, then the dissolved Lok Sabha will (/)
participate in the joint sitting and then decide on the Bill in the joint sitting. w
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Speaker, in his absence by the Deputy Chairman of the Rajya Sabha. In his absence as well, any
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collectively decided by the houses presides over the joint sitting. In no case, the Chairman of the
Rajya Sabha can preside over 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
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months, then only those amendments are allowed to be proposed in the joint sitting which is z
necessarily causing delay in the passage of the Bill. 0
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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
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Pre ear commences from 1st April to 31st March. (UK, Japan, Canada also have the same financial
ve year)
nti •
For the period 1860 - 1866, with the introduction of annual budgeting, the financial year of India was
on
of from 1st May to 30th April.
Te •
1867 onwards the financial year commenced from 1st April to 31st March.
rr •
More than 150 countries have their financial year aligned with the calendar year i.e. 1st January to
or
is 31st December.
m •
There has been debate on the changing of the timing of India's financial year:
Bi t
ll, o 1s Administrative Reforms Commission (A RC) in 1966, recommended to push the
20 commencement of the financial year month to November. The reason for it being that by
02 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
R is an important factor for agriculture in the country. A bad monsoon season would leave little
aj finances with the population to spend and hence reduce their purchasing power. This will
ya ultimately impact the government revenue and the government projections in the budget would
S not be met.
ab
ha o Secondly, after the budget presentation in the month of February, it would take around May for
re the actual finances to reach on ground for capital infrastructure works like construction of
je buildings,
ct roads, bridges, etc. But with monsoon just around a month away, this would again hamper the
ed developmental activities in the country.
th o Thirdly, the ARC said that people in India get a sense of completion and think of their finances in
e terms of from one Diwali to the next Diwali. Hence a financial year starting from November
bil
l would make it more culturally aligned.
o L.K Jha committee in 1984 also recommended a change in the timing of the financial year.
Ti o Shankaracharya Committee in 2016 recommended that our financial year should be changed to
mi calendar year i.e. January to December. This would be of help to the MNCs which have to align
ng with different financial years in different countries, where the majority of the world's countries
of have aligned their financial year to the calendar year.
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However, since the economy has been suffering, COV ID pandemic causing havoc, at this juncture it
a' would not be advisable to make changes in the financial year. But in the long term, this change must
s be thoroughlycontemplated and looked forward to.
fin
an
ci The Dual Budget issue: 0 01:14:00
al •
From 1924 to 2017, there was a system of dual budgets consisting of a separate general budget
ye and a separate budget for the Railways. The railway Budget used to be presented 3-4 days before
ar
the general budget.
: •
Until 1924 there was a combined budget, but it was changed to a dual budget on the
01:
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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 01:15:30

• 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 1924.
• 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 01:20:38

• 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 w
fares. Hence it affected the rationalization of finances and reforms for the railway department.
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• The railway budget had also become an exercise for pleasing and placating coalition partners.
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Even after merger with general budget, various issues persist:

• Still rationalization of fares has not taken place to that extent. (/)
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• 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 10-20 percent. 0
• It also does not guarantee better efficiency or more technocrats getting appointed to the railway �
board. u
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• It also does not guarantee an improvement in the customer services Cl
• Various experts have recommended reducing the railway zones from 18 to 5 (north, south, east, 0
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west and central) and converting these 5 zones into self-financing public sector corporations fully
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 1st 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.
► It gives the government a foretaste of the sentiments of the House and thus be prepared to
answer difficult questions during the voting on demand stage.
•
Committee stage:
o The Budgets prepared by different ministries are submitted to the departmental committees of the
f particular ministries.
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w o These committees are given a period of roughly one month to investigate the proposals of the
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f- ministries, prepare reports on them, simplify the reports and submit them back to the
Parliament.
w o Due to simplification of reports, it makes it easy for the MPs to understand the budget better and
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f- 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
w does not meet, but committees meet on a regular basis.
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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
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and discuss on the demand of grants of all the ministries. w
Hence after a stipulated amount of time, the discussion is • A suspended device used
cut short and the procedure of 'guillotine' is adopted i.e. to cut the head of a
the discussion is cut short. person during the French z
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o It affects the budgetary accountability of the government Revol ution 1-
to the Lok Sabha as a large part of the budget is voted (!) w
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upon, without being subject to discussion. Hence, experts ::)
suggest increasing the 26 day period for voting on CD
demands.
•
Appropriation Bill:
o All those demands which have become 'grants' are listed on 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
f start of the next financial year i.e., 1st of April, it would result in a rush to purchase the commodity at
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lower tax rates. On the other hand, the seller/dealer would try to hold back his inventory and sell at
f- a higher rate after the commencement of the new financial year i.e. from the 1st of April, when the
new tax rate would be applicable. As the seller/dealer has paid duty according to the previous tax
z rate and would sell the commodity according to the raised tax rates, he would automatically pocket
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Hence to avoid such financial irregularities, the raised indirect tax rate is made applicable from the
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The Provisional Collection of Taxes Act, 1931 authorizes the government to collect taxes at a new
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CD proposed rate for a period of 75 days pending the approval of the Parliament. Ultimately, the raised
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:
o It is provided for a specific purpose and is not included in any financial year's current service. 1-
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o It is a one-time expenditure. w
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
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• Additional demand/grant:
o It is the expenditure for a new service which is not a part of the budget and eventually that Cl
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service 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 th ree sectors:

•
General services-defense, fiscal services 0 01:06:22
•
Social/community services-health, education
•
Economic services-industry, transportation

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Six tier system of classification of accounts:
0 01:07:00

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If a Ministry has Rs. 100 crores sanctioned, then it has to show how it is going to spend these Rs. 100
crores. It may say that it will spend Rs.GO crores on one activity and Rs.4O crores on another activity.
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f- Then it also has to further indicate how and on which activities it will spend those Rs.60 crores
and Rs.40 crores and so on.
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In this activity Rs. 1OO crores becomes the major head, Rs.GO crores and Rs.4O crores become the
w sub major heads and so on till the object head.
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This is the way the budget is presented, passed and this is the way it has to be executed.
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If a situation arises where under a sub major head the money required is more than the estimated
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 P.fflUNION PARLIAM ENT (PART-5)
� - PARLIAMENTARY COMMITTEES PROCEEDINGS
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Th Since then we have had Parliamentary Committees.
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e • More effective deliberations:
m o Parliament with 245 members in one house and 543 members in the other makes it for elaborate
of discussions on an issue.
pa o As committees are smaller bodies, they can deliberate better. Eg. Public Accounts Committee has
rli 22 members; some other committees have as less as 15 members.
a • Provide for technical considerations and domain expertise:
m o It can invite domain experts from outside while preparing reports.
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ta • Allows for stakeholder participation:
ry o They can provide a platform for people's participation.
co o It can involve the people and stakeholders who will be directly impacted by the policy.
m o It can include the leaders of interest groups, pressure groups, industrial lobbies, civil society, etc.
mi • Inadequate Parliamentary sittings:
tt o In the last 10 years on an average, effective sittings in a year have drastically come down to just 67
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s days.
ca o Whereas Parliamentary committees function throughout the year and are not subjected to
n Parliamentary sittings.
be • Forge inter-party consensus:
tr o Parliamentary committees have proportional representation from almost all political parties.
ac o It provides a better forum to build consensus.
ed o Parliamentary committee meetings are not telecast live hence there is less chance of debate on
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th Origin of Committees: 0 00:07:35
e • Rules of the House:
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o They make provisions for certain types of committees like Departmentally Related Standing
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Committees, Public Accounts Committee, Estimates Committee, etc.
fo • Constitution:
rd o Article 344 - It provides for setting up from time to time an Official Language
R Commission. Whenever the report of this commission is submitted, a joint committee is
ef constituted to examine the report of the Official Language Commission and further to report
or their opinion to the President.
m o This committee shall have 30 members, of whom 20 would be from Lok Sabha and 10
s members from Rajya Sabha. They would be elected by their respective houses, based on
w proportional representation by means of a single transferable vote.
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le o The Salary & Allowances of Parliament Act, 1954 itself creates a Joint committee on salary and
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• 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 Committee: 0 00: 15:56

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)
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o Committee on Privileges (both houses have it separately)
• Committees to scrutinize: (!1
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o Committee on Government Assurances
o Committee on Subordinate Legislations
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o Rules Committee (both houses have it separately) (/)

o Business Advisory Committee (both houses have it separately) w

• Housekeeping Committees: �
o House Committee �
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• Financial Committees: �
o Public Accounts Committee
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o Estimates Committee z
o Committee on Public Undertakings � w
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• Departmentally Related Standing Committees (DPSC):
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o There are 24 DPSCs in total.

Appointment of Members to Committees: 0 00: 18:02

• Nomination: In the majority of the committees, members are appointed through nomination by
the Presiding officer, after consultation with the Leader of the House and the Leader of Opposition. i��
They
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are appointed on the basis of proportional representation.
• Election: There are few committees which are subject to annual elections like the Estimates w
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Committee, Public Accounts Committee, Committee on Public Undertakings, committee to examine <(
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 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.
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Since 1967, following the British convention, a member of the Opposition has been the chairperson
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It is subject to annual election based on proportional representation by means of single
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It has 22 members - 15 from Lok Sabha and 7 from Rajya Sabha. PAC would still function if the Rajya
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a:: Sabha fails to send 7 members. Hence, it can be said that PAC is a committee of the Lok Sabha.
ll.. • Functions of the PAC:
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o To scrutinize the report of the CAG, to ensure that the money spent was available and applied
to the purpose for which it was intended.
w o To ensure that the re-appropriation has been done in accordance with the rules.
� o It also scrutinizes the excess demands.
� o It also establishes whether the expenditure conforms to the authority that governs it. It checks
0 whether the sanction given to spend the money was given by the authority which has the power
u to do so.
� o It has the power to enforce the production of documents, records, reports from the concerned
� Ministry.
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w o It can also call for interrogation of the civil servants in the government.
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f • Advantages of having a PAC:
o It has a deterrenteffect on financial misconduct.
o Reports of the PAC help in shaping public opinion.
� o It helps in ascertaining the government's point of view from the Action Taken Report on the
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recommendations of the PAC.
Weaknesses of present form of PAC:
z o The deterrent effect is weak as seen from the number of scams, scandals, financial frauds, the

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 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
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reasons for doing so. (!
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Estimates Committee:
• It is entirely the committee of the Lok Sabha.
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• It has 30 members and all of them are drawn from the Lok 0..
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• They are subject to election every year. Election is based on the principle of proportional :
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representation by means of a single transferable vote.
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• Estimates Committee is also referred to as "The twin sister of Public Accounts Committee"
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Functions of Estimates Committee: �
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o It picks out 5-6 ministries or even lesser in any given year, looks at their estimates of the current 0
and previous years as well, looks at the trends of growth of expenditure. On the basis of this, it
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reforms, administrative reforms, etc. �
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o In rare cases, where the policy itself is wasteful, it is allowed to question the same. In this case,
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it 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,
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Performance budgeting, havebeen recommendations of the Estimates Committee. � w
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• It is sometimes also referred to as the "Continuous Economy Committee" as it is continuously :::::i
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subjecting the expenditure of the government to detailed scrutiny.
• Even though the recommendations of the Estimates Committee are not binding in nature, almost 97 �
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percent of its recommendations have been accepted by the government.
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 Committee on Public Undertakings:
•
It was the last of the financial committees to be set up. It was set up in 0 00:48:35
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 PSUs.
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.
Report on the disinvestment policy.
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A weakness in the working of the Committee on Public Undertakings is that after examining a PSU for
z a certain year, its turn for examination again may come after 7-8 years, due to the sheer number of
0 PSUs to be examined. This creates a sense of indifference and casualness in the working of
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 Hen ent Related Standing Committees (DPSC) : 0 00:54:00
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Departmental committees also exercise some financial control as the budgetary estimates of the
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concerned ministries in the third stage of the budgetary enactment are sent to these departmental
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They were started in India in the year 1993 under the Narsimha Rao government. In those days,
e there were 17 DPSC with each consisting of 45 members (30 from Lok Sabha and 15 from Rajya
on Sabha).
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Presently there are 24 DPSCs with each consisting of 31 members (21 from Lok Sabha and 10
lic from Rajya Sabha).
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The members are nominated for a period of one year and there is no provision for election like other
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financial committees.
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Of these 24 committees, 16 are under the administrative control of the Speaker of Lok Sabha and
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8 are under the administrative control of the Chairperson of Rajya Sabha.
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Functions of DPSCs:
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o They consider the budgetary estimates of various ministries.
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o They also consider bills of concerned ministries.
able o They scrutinize the annual reports of concerned ministries.
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 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).
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• Background of members is not considered while appointing them to a committee:
o This results in loss of expertise, wisdom and experience of ground reality with the member which
would have been useful to a specific committee.
• M Ps have started to move along party lines in the committees:
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to the Parliament. (Note: It has been suggested Committees (%) �
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Bills not being referred to DPSC:
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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
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interest. �
o In the 15th Lok Sabha, 71 percent of the bills tabled were submitted to the standing committees for
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detailed scrutiny. In the 16 Lok Sabha, only 27 percent of the bills were referred to committees. <(
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Other committees: 0 01: 15: 15 �
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Business Advisory Committee (BAC): 0
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h o This committee lays out the scheduling of the Parliamentary business, time to be allotted to various
e items on agenda, etc.
• Committee on Absence of Members:
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r o Present only in Lok Sabha.
e o It scrutinizes the cases of those MPs which have been absent for 60 days without the permission
s of the House. It also considers applications of MPs for leave of absence.
i o In the Rajya Sabha, as there is no such committee, the issue of absence of members is dealt with by
d the House collectively.
i • Committee on Private Member Bills/Resolutions:
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g o Present only in Lok Sabha.
o In the Rajya Sabha this matter comes under the Business Advisory Committee of Rajya Sabha.
o • Committee on Empowerment of Women:
f o It is a joint committee having 30 members (20 from Lok Sabha and 10 from Rajya Sabha)
f o This committee reviews all the measures taken by the government towards securing equality and
i dignity for women.
c o It also scrutinizes the annual report of the National Commission for Women.
e • Ethics Committee:
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o o It exists separately in both houses.
f o It lays down code of conduct for MPs, investigates any indiscipline or violation of any decorum.
t o It also suggests the kind of actions to be taken on such violations.
h • Rules Committee:
e o It exists separately in both houses.
o The presiding officers of the House are ex-officio chairpersons of the Rules Committee.
H
o o They examine all aspects of parliamentary rules, procedures; make suggestions to additions
u or amendments to such rules.
s • Committee on Privileges:
e o It exists separately in both houses.
i o It examines all questions of parliamentary privileges
s 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.
t • Committee on Petitions:
h
e o It exists separately in both houses.
o It receives and investigates petitions from stakeholders, pressure groups, etc.
e o They report to the House about specific complaints in those petitions and recommend remedial
x action.
- • Committee on Government Assurances:
o o It exists separately in both houses.
f o It takes follow up action on the assurances given by the minister on the floor of the house.
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 • 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:
o It has 10 members from Lok Sabha and 5 from Rajya Sabha (!1
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o It recommends all changes, alterations in the salaries, perks and allowances ofMPs. c
• Joint committee on Office of Profit:
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o It has 10 members from Lok Sabha and 5 from Rajya Sabha 0
o It advises the Parliament as to what offices under the government can be considered to be c::
included in the Parliament Prevention of Disqualification Act, 1959.
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• Joint Library Committee: ..
o It looks after the library of the Parliament. (/)

• Committee on papers laid on the table: w

o It exists separately in both houses. �
o It examines all reports and papers which are laid on the table of the House. �
0
o It also reports any violation, any mistakes with respect to laws, constitution in those reports and u
papers. �
o It also checks any undue delay on the part of the government in tabling of those reports. �
• Committee on Subordinate Legislation: z
o It exists separately in both houses.
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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 of the actual law framed by the Parliament.
::
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0 01:30:20 �
Consultative Committees:
• These are organized by the Ministry of Parliamentary Affairs, and they are attached to various
ministries. These committees are organized by the government and not by the Parliament.
• Around 38 consultative committees exist in present times.
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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 01:32:48

•
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
their knowledge.
(/)
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It was also intentioned to sensitize MPs about the latest information on these aspects so that they
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can raise these matters more effectively in the Parliament.
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They were also envisaged to get information from all important government and non-
w government entities across the country, prepare an integrated database on a particular topic so as
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Each Parliamentary Forum consists of 31 members (2 1 from Lok Sabha and 10 from Rajya Sabha).
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•
A member can remain a member of the Parliamentary forum for a period of 5 years or resign anytime.
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Presently there are around eight such forums:

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Forum on Forum on Global
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Population and Warmi ng and
Forum on Artisans
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Public Health Climate Cha nge

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E c Health which is presided by the chairperson of Rajya Sabha, all other forums are presided by
x the Speaker of the Lok Sabha.
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p Difference between parliamentary forums and parliamentary committees: 0 01:38:56
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•
Parliamentary committees have statutory sanction. Whereas forums were created on the initiative
, of the Speaker during the tenure of UPA-1.
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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.

Adhoc 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
(!1
scams in the country. For e.g. Joint Parliamentary Committee (J PC) to probe on the Bofors z
Scandal set up in 1987, Joint Parliamentary Committee on Harshad Mehta scam set up in c
1992, Joint u
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Parliamentary Committee on Ketan Parekh Scam in 2001, Joint Parliamentary Committee on 0
pesticides in Colas set up in 2004. c::
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•
In 20 11 JPC on 2G scam, in 2013 JPC on Augusta Westland helicopter purchase scam.
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Proceedings of Parliament:
0 01:44:01 (/)

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Question hour:
•
It is the first hour of every Parliamentary sitting. It usually begins at 11 AM and ends at 12 PM, on �
a daily basis. �
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It may not be held on certain days: u
o When there is a President's address �
o On the Budget presentation day
o When the house sits for a holiday �
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o When the Parliament sits for an extended period. w
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. ::
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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.
•
During the question hour, various types of questions can be asked:
o Starred: �
► The member asking the question expects a verbal response from the minister.
► He/she can further ask supplementary questions to the response of the Minister.
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► The Green Paper list contains all the starred questions which are supposed to be answered on �zw
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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.
•
Utility ofquestion hour:
o It has a deterrent effect on the government and keeps the ministers and civil servants on their toes.
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o It also helps in exposing the lapses or mistakes of the government, which further helps in
z shaping public opinion.
o It helps to get information about what the government is actually doing. It may also be used as a
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0 tool to know the official stand of the government.
w o It is also used as a tool to embarrass, insult and create uncomfortable situations for the
government.
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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
w answered as there are too many MPs. In the 15th Lok Sabha only 10% of the questions
got answered due to routine disruptions.
w o Prone to corruption: 'Cash for Query' scam during the term of UPA-1, wherein MPs took money
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
�
0 absent on the day of answering the question.
u 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 context, former Vice President, Hamid Ansari suggested to push the question hour
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w down to 3 PM, then the question hour would not become an immediate casualty of disruptions).
� o Quality of questions: For the previous two Lok Sabhas, 70% of the questions were of such
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Zero hour: 0 02:10:50
• Indian innovation and an informal device, which is not mentioned in the Rules of Business.
It is an
• 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 1960s it has become a regular device.
• From 1 1 AM 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 (/)
1 (!

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raised in the zero hour by any member, if theMinister is present in the House during the zero hour.
• The duration of zero hour varies from 15 minutes to 30 minutes or even more than one hour. The
term 'zero hour' does not mean that the time allotted will be one hour. The time to be allotted is w
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decided by the presiding officer i.e. the Speaker in case of Lok Sabha and the Chairman in case of 0
Rajya Sabha.

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 U N I O N PARLIAM ENT (PART- 6) - M OTI ON S, RO LE
OF OPPOSITION AND PARLIAMENTARY PRIVILEGES
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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 varioustypes:
•
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.
•
Subsidiary motion:
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C, select committee for further investigation (during the 2 nd stage of the bill), the existence of this
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5 during the 1st reading was passed.
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Substitute motion:
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2 o It is a motion which substitutes another motion and proposes an alternative to it.
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Closure motion:
z 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:
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► Simple closure: When the matter is sufficiently discussed by all members concerned, then a
c:�: motion for simple closure is moved. It is the most democratic closure motion.
► Kangaroo closure: This means that instead of discussing all the components of the bill, only
important clauses of the bill are discussed and the matter is put to vote. As it jumps from one
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0 important matter to the other important matter, it is called a kangaroo closure.
<( ► Closure by compartments: It means clubbing or grouping of sections which are similar into
z compartments, then discussing the compartments as a whole and putting the compartments
0 to vote.
i= ► 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: 12:48
► 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 discussion, to be followed by voting. The voting is on the response or conduct of the l!>w
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government. If the adjournment motion is passed after voting, it amounts to censure of the ...J

government i.e. the 5

Parliament has reprimanded the government. i
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Privilege Motion: 0 00: 17:40 �
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 w
misleading, distorted or false information to the House �
•
Dilatory Motion: 00:18:57 <{
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o It can be moved to delay or postpone the activities of the House on any issue.
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No day yet named motion: 0 00:20: 12 Cl
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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 <{
House to take it up. z
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No Confidence Motion: 0 in
00:21:00 0
o It is normally introduced by opposition parties to test the majority of the ruling
party. 0
o It is not specifically mentioned in the constitution. LL

o In an indirect way, shades of no confidence motion are found in Article 75 (3) which says that w
0
the Council of Ministers is directly responsible to the Lok Sabha, and in Rule 198 of the ...J
Rules of Business of the Lok Sabha. 0
o Conditions for no confidence motion to be introduced: c:
► It can be introduced only in the Lok Sabha. :
► It can be introduced once in every session. (Experts have suggested to make this provision vi"
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once every year, in order to avoid wastage of time) 0
► 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 also known as the 'confidence motion', to be sought by the government headed by the
Prime Minister, usually of a coa lition government, to esta blish and demonstrate that he/she ca rries
the vote of majo rity mem bers of the Lok Sabha.
o There are no provisions in the rules, but it is usually introduced under Rule 184 of Lok Sabha,
which relates to debates in Lok Sabha followed by voting. (Whereas under Rule 193 of Lok Sabha,
debates in Lok Sabha which are not fo llowed by voting)
o Fol lowi ng a re the Prim e M i n i sters who have lost the trust vote:
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C, ► Charan Singh resigned without facing it (1979)
w ► V. P Singh lost it (1990)
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5 ► Vajpayee resig ned without facing it (1996)

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a.. ► H.D. Deve Gowda lost it ( 1997)
2
� ► Vajpayee lost it, by one vote only ( 1999)
� • Censure Motion: 0 00:33:27
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w 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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c::: o Specific reasons have to be given for its introduction.
o It can be introduced against the whole government, and also against individual ministers.
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0 Resolutions: 00:35:25
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vi • Resolution is a formal expression of the sense of the House, its will, its opinion, etc.
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a.. • The difference between a motion and a resolution is less of content and more of
procedure.
a.. • All reso lutions can be described as Substantive Motions, which is a self- contained independent
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proposal, not depending on any pre-existing motion.
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w • Some motions can be adopted o r passed without voti ng as wel l . But all resolutions are subjected
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l/) • Types of reso lutions:
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Gove rnment Resolution Private Mem be r
� Statuto ry Resolution
Resolution
•It is i ntrod u ced b y
•It is introd u ced by a •It is a reso l ution wh
a Mi n iste r
private m e m b e r ich has provisions in
the
co n stitutio n or in so me
l a w. They have a
statuto ry effect if they
a re pa ssed
• Fo r e . g. Pa r l i a m e nt
pa ss i n g a reso lutio n for
re m ova l of CAG, re mova 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 week to raise any issue of public importance. (/)
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• Calling attention notice: w
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o It is an Indian innovation. 5
o A member of the House, with prior permission of the presiding officer, can draw the attention of ii:
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a Minister to an issue of urgent public importance and require him to make a brief statement on �
it, at short notice. �
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Naming a member: 0 00:43:57 <{
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• It means that the presiding officer, by naming a member, draws the attention of the House to the c::
unruly conduct of a member who is disregarding the instructions from the presiding officer, with a
view to some action being taken against him. Cl
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• Once a member is named, Rule 373 of Lok Sabha says that the Speaker can direct that member to <{
withdraw himself from the proceedings of the House for the remainder of the day. Similar power is 0z
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given to the Chairman of Rajya Sabha under Rule 255 of Rajya Sabha. in
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• If the member is routinely engaging in creating chaos and ruckus in the House, the member can be
suspended by the Speaker under Rule 374-A of the Lok Sabha. Before 200 1, the House collectively
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had the power to suspend the concernedM P.
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• Since 200 1, Rule 374-A of the Lok Sabha came into being, which says that once a member is w
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named,
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he/she stands automatically suspended for a period of five consecutive sittings or for the remainder vi"c::
of the session, whichever is lesser. z
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But the power to revoke the suspension in the Lok Sabha is not with the speaker, it is with the 0
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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Singh was the leader of the house of Rajya Sabha.
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In the USA, the leader of the House is referred to as the 'House Majority Leader' and the leader of
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Functions of the Leader of the House:
� o On several occasions he speaks on behalf of the whole house.
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w o He is also consulted by the presiding officer on matters relating to arrangement of
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<( government business, private member business in the House, on matters relating to adjournment,
� prorogation of the House, etc.
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o The job of the Leader of the House in India has become very difficult in present times as there is
0 multi-party system and there is growing hostility between the treasury benches and the
z opposition benches.
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0 Leader of Opposition: 0 00:59:22
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vi •
It has been given statutory status under the Salaries and Allowances of the Leader of Opposition
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Act, 1977.
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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:
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w o He has to be a member of the House
...J o The person has to be recognized as the Leader of Opposition by the Presiding Officer.
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c o The person must be the leader of the party in opposition with the greatest numerical strength.
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The Direction 121 of the Speaker's Direction, issued by the first Speaker, G.V Mavalankar, talks
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about the 10 percent criteria which said that the leader of the party securing at least 10 percent
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0 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 2014, i.e. from the 9th Lok Sabha to the 15th Lok Sabha, there has always been a Leader of
Opposition. In
 th th
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 NHRe, 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. l!>w
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The position of Leader of Opposition carries much importance- w
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o The Leader of Opposition is required to find faults in the working of the government. 5
o He is supposed to present lapses of the government and present alternative views, without having ii:
any right to get them enforced. a..
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Nonetheless, opposition is a key component in management of a Parliamentary democracy. Thus, the �
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. w
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Role of opposition: <{
• Hold the government accountable: 0 01:16:07
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o It does so by exposing lapses, corruptions, failures, inaction, 0
etc. �
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o It has critical responsibility towards the entire nation for scrutinizing the works of the a..a..
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government. LL

o It thus ensures adequate checks and balances on the executive power. 0

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• Question and occasionally confront: ...J

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, :
as rightly said "the King's government must always go on." vi"
o It must be realized that the opposition is a part of the decision-making process, but the decision z
taking process. It has the right to be consulted, but not the right that what it consults as a 0
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.
•
Inability to generate information on government activities proactively:
o Opposition parties are reactive in nature.
V)
o Major source for information on the government is highly dependent on the media.
w o When the media is controlled by the ruling, then the opposition is without any issues as well.
C, o Hence, the opposition should develop an entire cadre of officers responsible for gathering
c
w accurate information on the workings of the government.
•
2 Focus on issues with immediate political payoffs:
...J
5 o The larger issues of public governance remain neglected.
o For e.g. excess focus on the Pegasus issue recently, while neglecting other important issues
a..
having larger impact on the public welfare.
� •
Lack of unity:
� o The opposition is not able to present itself as a united front.
z
w •
Political parties in India are flimsy institutions:
�
<( o No shadow cabinet (It is a system seen in the UK, wherein the opposition party leaders mirror the
positions of ministers in the ruling government. Each shadow minister tracks the activities of the
c:�: actual cabinet minister and then lead the house in questioning that particular ministry. It also
includes the Shadow Prime Minister having vigilance over the activities of the actual Prime
0 Minister).
z o No designated speakers on specific issues in order to leverage the wisdom and experience of MPs
<( who are experts in those issues.
z o No ideological filters results in no stability in the political party, which affects the effectiveness of
0 the opposition.
i=
vi
0 Parliamentary privileges: 0 01:39:32

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•
Theseare the special immunities and concessions enjoyed by the members of parliament.
0 •
These privileges are enjoyed individually as well as collectively by the members.
0 •
These privileges ensure the freedom, dignity and independence of the House.
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They also ensure that there are no obstructions in the work of the Members of Parliament.
0 •
They are not codified.
::: c •
Sources of Parliamentary privileges:
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z o Constitution:
0 ► 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 (/)

the members and the committees of each House, shall be such as may from time to time be l!>w
w
defined by Parliament by law, and, until so defined shall be those of that House and of its ...J
5
members and committees immediately before the coming into force of Section 15 of ii:
the Constitution (Forty fourth Amendment) Act 1978 (Note: this amendment was done in a..
order to omit the expression ' House of Commons', as it was found odd to name a foreign �
legislative chamber in the Indian constitution)
�
Note: This provision was used to disqualify the MPs in the 'cash for query' scam. As they could not be �w
z
disqualified under provisions of other articles like Article 102 or Schedule X. Thus, even though, it was not <{
:::i
codified. just because the House of Commons had the right to disqualify MPs, the Lok Sabha disqualified c::
the MPs who took money to ask questions in the Parliament. The privilege of the Parliament with respect
to the 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 this constitution have the right to speak in, and otherwise to take part in the z
proceedings of, a House of Parliament or any committee thereof as they apply in 0
relation to members of Parliament. �
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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 0
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his ministry. Also, the Attorney General and the Advocate General have the right to take part in a..
0
proceedings of the Parliament and the State Legislative Assembly, respectively. LL
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Note: As per clause ( 1), an MP is free from the limitations imposed on ordinary citizens under Article 19 ...J
(2), while speaking on the floor of the Parliament, as his freedom of speech comes under Article 105. 0
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o Laws
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o Rules of house 0
o Conventions
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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 01:49:46

•
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:
w
C, o Breach of privilege: When a MP or outsider disregards or attacks the privilege of the house. The
w
...J house can refer the matter to the Privileges committee or collectively decide among members as
5 well.
c o Contempt of house: Anything that obstructs the functioning of the Parliament or attacks the
a..
2 independence, freedom and dignity of the House. For e.g. Late
� actor Om Puri faced contempt of house notice during the Anna
� Hazare protests in 20 11, to which he later offered an unconditional
z
w apology.
�
<( o Contempt of house is a wider term which may include breach
� of privilege as well. It can be said that every breach of
c:::
privilege
0 is also contempt of the house, but every contempt may not be a
breach of privilege.
z
<( o Whether contempt or breach of privilege, the Parliament can refer the matter to the privileges
z committee for action to be taken or it can decide the matter collectively. If the house feels,
0 whoever is guilty of it, especially the outsiders, the presiding officer can issue warrants for his
i= production before the House, without even specifying the reasons for it.
vi
0 o The house collectively by adopting a motion can send the person to jail as well. For e.g. in 20 17,
the Karnataka Legislative Assembly sent two journalists to one year imprisonment.
a..
0
•
The right to immediate information about the arrest, release, conviction, or imprisonment of a
0 member.
•
w Article 122: The courts cannot inquire into the proceedings of the Parliament
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0 o (1) The validity of any proceedings in Parliament shall not be called in question on the ground of
c::: any alleged irregularity of procedure.
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Note: In Raja Rampal Case, 2007 the court adjudged that this protection is not available to the Parliament
z committing unconstitutional acts.
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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
Individual privileges: 0 02:01:15
• Articles 105 and 194 ta l k a bout p rivi leges a tt he centra l level an d a tth e state l evel respectively.
• Freedom from arrest in civil cases during the session, 40 days prior to the commencement of the
session and 40 days after the prorogation/end of the session.
• While the House is in session, no MP can be compelled to become a witness for a case pending
before any court of law, without the permission of the House.
• An MP cannot be asked to be a member of the Jury i.e. they are exempted from ju ry duty, while the
House is in session.
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Nature of privileges: 0 02:04:28 ...J
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• These privileges are enjoyed only when the MPs are performing their parliamentary duties and not i
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when they are in their individual capacities. i
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• They cannot be seen as special rights. These privileges do not violate equality by law. These privileges
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are given to them only because of the unique nature of their work.
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• They are also referred to as 'indirect rights of citizens'. If as an MP these privileges are not given, then
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 faithfu l ly w
represent the concerns of the people who have voted fo r them.
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Codification of privileges: 02:09:45 0z
• Points in favor of codification: �
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o Without codification, they remain vague. n
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o Codification will help in red ucing conflicts betweenjudiciary and legislature.
• Points against codification: a..
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o Perspective of the ruling party cou ld be easily inserted in the bill to codify LL
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privileges. w
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o Presiding officer's powers to address specific situations and expand the privileges to secure the vi"
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dignity ofthe House will be impaired. 0
o Once codified, the privileges will come under the discipline of Article 13 (2) i.e. a law that violates
any of the fu ndamenta l rights cannot be made. In this case, if the codified law provides fo r arrest �
and produ ction of persons in the House, without specifying reasons, in case of breach of privilege, it
would amount to violate fu ndamenta l rig hts under Article 22.
o These privileges are generally not abused.
• In this context, there needs to be clarity whether the parliament can punish, can the punishment take
the form of ajail sentence, if it can, then what can be the maximum term of the sentence, etc.
• Beyond this issue, the privileges, even if they are undefined or uncodified, it is a fa ir situation. Some
concrete privileges ca n be codified, su bject to the condition that the privileges are not just confined to
that provision, 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
V)
words) (2013)
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5 Previous Year's Questions

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� Q. The Indian Constitution has provisions .for holding joint session o.f the two Houses o.f the
� Parliament. Enumerate the occasions when this would normally happen and also the occasions when
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� it cannot. with reason thereo.f. (250 words) (2017)
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Previous Year's Questions
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Q. Individual parliamentarian's role as the national lawmaker is on a decline. which in turn. has
0 adversely impacted the quality o.f debates and their outcome. Discuss. (201')
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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 65, 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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account of variety of circumstances like death, resignation, removal, etc. Whereas, 'discharges the
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functions of president' is used when the office of the President is temporarily vacant i.e. when the
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president is ill, or when he/she is temporarily incapacitated.
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t-"'
Article 65: The Vice President to act as President or to discharge his functions during casual vacancies
z in the office, or during the absence, of President
w • ( 1) In the event of the occurrence of any vacancy in the office of the President by reason of his death,
0 resignation or removal, or otherwise, the Vice President shall act as President until the date on
v;
w which a new President elected in accordance with the provisions of this Chapter to fill such vacancy
0 enters upon his office.
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• (2) When the President is unable to discharge his functions owing to absence, illness or any other
u
w cause, the Vice President shall discharge his functions until the date on which the President resumes
5 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 shall be elected by the mem bers of an electoral college consisting of the
members of both Houses of Parliament in accordance with the system of proportional representation
by means of the single transferable vote and the voting at such election shall 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 <(
I
Leg isl atu re of any State be elected Vice President, he shall be deemed to have vacated his seat in that al
House on the date on which he enters upon his office as Vice President.
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• (3) No person shall be eligible for election as Vice President unless he 0
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o (a) is a citizen of India; V)
o (b) has completed the age ofthirtyfive yea rs;
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o (c) is qualified for election as a member of the Council of States
• (4) A person shall not be eligible for election as Vice President if he holds any office of profit under the V)
Govern ment of India or the Govern ment of any State or under any loca l or other authority su bject to the <(
>
I
control of any of the said Governments Explanation For the pu rposes of this article, a person shall not al
<(
be deemed to hold any office of profit by reason only that he is the President or Vice President of the V)
U n ion or the G overnor of a ny State or is a M i nister either for the U n ion or for a ny State. �
�
Article 67: Term of office of Vice President ......
z
• The Vice President shall hold office for a term of five years from the date on which he enters upon his w
Q
office: Provided that
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o (a) a Vice President may, by writing under his hand addressed to the President, resign his office; 0::
a.
o (b) a Vice President may be removed from his office by a resolution of the council of States passed w
u
by a m ajo rity of all the then members of the council and agreed to by the House of the People; but no >
resolution for the purpose of this clause shall be moved un less at least fou rteen days' notice has
been given ofthe intention to move the resolution.
o (c) a Vice President shall, notwithstanding the expiration of his term, continue to hold office until his
successor enters upon his office.
Note:
• The Vice President is neither the member of Rajya Sabha, northe 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 re moval, as is
the case for the removal ofthe 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 Sabhai.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. 1 21 votes are required for the Vice president to be removed.

Si mple m ajo rity Effective M ajo rity

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• Mo re than 50% of • Refers to a majority
Ill the present and of mo re than 50% of
voting members in the effective
�
the House. strength of the
House.
Vl • Effective strength=
Total strength
< Vacant seats
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Additional information:
5
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� •
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.
z
Article 68: Time of holding election to fill vacancy in the office of Vice President and the term of office of
w person elected to fill casual vacancy
0
v; •
(1) An election to fill a vacancy caused by the expiration of the term of office of Vice President shall be
w completed before the expiration of the term.
0:: •
(2) An election to fill a vacancy in the office of Vice President occurring by reason of his death,
a
. 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
w entitled to hold office for the full term of five years from the date on which he enters upon his office.
u
5 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 shall, before entering upon his office, make and subscribe before the President, or
some person appointed in that behalf by him, an oath or affirmation in the foll owing 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 president does not have direct executive responsibil ity as the Vice President of
America, he is occasionally sent to manage the government's diplomatic and foreign policy.
• For e.g. Vice President of India was sent to importa nt foreign visits to cou ntries in Africa and Latin
America, where there is possibility of expa nding ties.
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Special powers of Lok Sabha: 0 00:27: 18
• The Constitution of India proceeds on the basis of fundamental equality in status of the two houses. l
Neither of the houses is superior to the other. Powers of Lok Sabha may be superior to that of the
:::ii:::
Rajya Sabha, but the status of Lok Sabha and Rajya Sabha is equal. 0
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• The expression used to describe the two houses as the Upper house and the lower house is also not V)
constitutiona l ly correct i n the context of I ndia . It is used i n the context of the U K as the 'House of <(
Lords' V)
represents the look of aristocracy, clergy and nobility in the British Pa rliament it is ca lled the 'Upper >
House'. As the 'House of Commons' represents the members directly elected by the common people, it <(
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is referred to as the 'Lower House'. <(
V)
• The Lok Sabha enjoys certain special powers such as: �
o Under Article 75(3), the Council of ministers is responsible to the Lok Sabha. It is with the loss of �
m ajo rity in Lok Sabha only, that the govern ment fa lls. ......
z
w
o The right to introduce and vote on the money bills exclusively rests with the Lok Sabha. Q
o Whenever a joint sitting is held of both the houses, the Speaker of Lok Sabha presides over it. w
o Even in the joint sitting, the Lok Sabha enjoys an advantageous position due to its higher 0::
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nu merica l strength. u
o In practica l ly all joint parliamentary committees there is predom in a nce of Lok Sa bha . For e.g. >
Business Advisory Committee has 15 members from Lok Sabha and 7 from Rajya Sabha, the
Departmenta l Committees have 21 members from Lok Sabha and 10 from Rajya Sabha, etc.
o The Lok Sabha also has the power to prematurely withdraw or revoke a National Emergency
under Article 352.

Special powers of Rajya Sabha:

• It is not su bject to dissolution. 0 00:35: 12
• Tenure of members is 6 years; one year more than the mem bers of Lok Sabha.
• Only 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
list, by passing a resolution by 2/3rd 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 6 months after the resolution has ceased to exist. After the 101st
< Constitutional Amendment Act, 2016, the Rajya Sabha can also authorize the Parliament to make laws
:r with respect to Goods and Services Tax under Article 246A.
Il
l
� Needforthe Second Chamber: 0 00:51:16
•
Tradition:
Vl o The House of Lords is an example of the second chamber as continuation of tradition.
•
Federalism:
< o It gives voice to the states at the national level. For e.g. Rajya Sabha of India, the Senate of USA.
Vl
5 •
To review legislation:
< o It brings calmness, sobriety to the debate; it can help to stop a legislation which has been passed
:::r: in a hurry or is ill-conceived by the other house.
Ill •
Functional representation:
�
o It is not a territorial representation which is provided by the lower house. Functional
� representation provides representation on the basis of social class, occupational class, etc. For
� e.g. the Legislative Councils at the state level.
t-"' •
Representation to interest that may not be represented ordinarily:
z 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
w service.
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Utility of the Rajya Sabha:
•
0 00:58:15
Enables participation of senior statesmen and
politicians:
o Even though the seniorpoliticianscannot participate in regularelections due to variousfactors, 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 01:05:40
•
In the US, the upper house i.e. The Senate is more powerful than the House of Representatives. In :::ii:::
contrast, in the UK, the House of Lords is a very weak upper house. In comparison to the two, the 0
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Rajya Sabha is not as weak as the House of Lords, nor as strong as the Senate. V)
•
One of the critiques of Rajya Sabha is that it displays a number of non-federal features such as:
o Domicile qualification has been dispensed with by the amendment to the Representation of <(
People's Act in 2003. It means that a person representing a state in the Rajya Sabha, need not be
V)
a domicile of that state.
o Even when it is a federal chamber, there is representation given to Union Territories. <(
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I
o Nominated members in Rajya Sabha also represent a non-federal feature. al
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 V)
�
representation of 2 seats for each federal state.
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Why does Rajya Sabha have inequality of states representation? ......
z
•
The Indian federation is not a result of a contract of formally independent colonies coming w
together, like that of the United States of America. Q
• Equality of representation principle is likely to increase the demand for smaller states as w
every state would be entitled to equal number of seats in the Rajya Sabha. 0::
a.
• Difference in population and territorial size of states in India. For e.g. The state of Uttar w
Pradesh is equivalent to 65 states of Goa in terms of territorial size. Hence it is inconceivable u
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
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
Ill has lost in the Lok Sabha elections.
� o Cronies are important people who are attached to the ministers and senior politicians, who the
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.
• Rajya Sabha's critique as House of Elders:
< o Its reputation as house of elders is getting eroded as it somewhat has started to resemble the
Vl
5 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
:::r: is now been called the 'pale shadow of the Lok Sabha'.
Ill
o In 20 13, the then Vice President Hamid Ansari, disgusted by the frequent disruptions, called Rajya
�
Sabha as the 'Federation of Anarchists'.
� • Rajya Sabha downgrading as chamber of opposition:
� o The ruling party has started to see the Rajya Sabha as a chamber of opposition.
t-"' o Hence it is trying to pass ordinary bills as money bills, so that it can bypass the Rajya Sabha. For
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li:"-1 OF THE FUNCTIONING 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. Ave rage number of sittings in
o Some commissions have recommended codifying the
requirement of minimum number of sittings in a year, a year (in days)
minimum 120 days for Lok Sabha and 100 days for 150
Rajya Sabha.
100 71
o A major problem in this context is that the ruling 67
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
years
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n The ruling party has very little discretion in deciding the timing and duration of the session.
o •
Secondly, Parliament should be convened if there is a written notification from a certain
t percentage of MPs (25 or 30%)
h
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r •
Disruption of Parliament:
o For PM Nehru, the Parliament was a temple of democracy and he gave adequate space to
s the opposition. He was also the most comfortable when controversial questions were asked. He
u used to come to the rescue of his own ministers in the Parliament. He also used to value the
g opposition as well. During those times, intellectual debates used to take place in the Parliament
g with minimum disruptions.
e o However, this trend changed with subsequent Prime Ministers largely beginning with Indira
s Gandhi's Prime Ministership. Parliament was something at best to be endured or at worst to
t be
i curtailed. Ruling parties after PM Nehru have used their brute majorities sometimes to
o suppress the voice of opposition, leaving nothing to the opposition but to use unparliamentary
n
methods like disrupting the Parliament, storming the well of the house, protesting, slogan
c shouting,
a walking out, etc. As a result, many sessions got washed out.
n o The 15th Lok Sabha during the term of U PA- 11 was the most disrupted in the history of the
Parliament.
b ► Only 179 bills could be passed. (least ever among those Lok Sabhas which completed their
e five year term)
t ► 128 bills were either pending or they lapsed. (maximum ever)
h ► 400/o of the time wasted.
e ► Several bills passed a after discussion of 20 minutes or less.
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•
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 the kind of MPs they are sending to the Parliament to represent them.

• Ageing Parliament:
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charges where the minimum punishment is 5 years or more. z
o The criminalization of parliament goes against the dictum "Lawbreakers cannot be lawmakers". 0
o Lot of reforms to address this issue have been implemented especially under the directions of the
Supreme Court, where in the recent past it has ordered the setting up of special courts for ::::,
disposing of such cases. ...I

• Inadequate women's representation:

o Women, who constitute around 50% of the total population, formed only 10% of the MPs in the
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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:
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Such debate also took place in the Constituent Assembly.
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� chambers on the basis of crutches or support of quotas, they would always be denied the support
LL of mainstream politicians, giving rise to a stigma against them and further perpetuating their
0 unequal status. But they had the hope that as an independent country, the government would
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education, etc. One the gaps in these areas are addressed, women would naturally be given a
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o 1/3 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
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cycle D, E and F would be reserved. In the next election cycle G, H and I seats would be reserved
and then back to A, B and C in the next cycle. This is known as implementing the quota policy
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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
water supply, sewage and sanitation, etc. have actually tended to be higher.
• Issues in extending quota to women: z
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chambers.
► Parties may allocate seats where they have no chance of winning, just to fulfill the 1/3rd
requirement for women candidates.
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► It would require a major constitutional amendment, which seems more difficult than
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► Women members may be reduced to nothing more than sidekicks and second class �
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woman candidate from their own families. (Beti- Bahu- Biwi
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Global position:
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 01:1 1:06
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o Provision should be made for 1/3rd quota for adhoc period followed by
review.
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Members of either House of Parliament shall be entitled to receive such salaries and allowances as
u may from time to time be determined by Parliament by law and, until provision in that in that respect
s is so made, allowances at such rates and upon such conditions as were immediately before the
o commencement of this Constitution applicable in the case of members of the Constituent Assembly
of the Dominion of India Legislative Procedure.
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Parliamentarians and state legislators are the only people who decide their own salary.
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The law that determines salaries and allowances is the Salaries and Allowances of Members of
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Parliament Act, 1954. This law also creates the joint committee on salary and allowances.
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Corresponding article for the state legislatures is Article 195.
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There is also a constant debate on cutting the salaries of MPs if and when the Parliament session is
r washed out due to disruptions; there is wastage of productive parliamentary time, etc.
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It is further argued that much like employment in the private sector, if the employee cannot perform up
to the expectations of the employer, he/she has to face a salary cut.
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However it must be understood that relation ship between an employee and employer is of
s 'contractual' nature, which is not the case for a member of parliament representing a constituency
p and its voters.
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Thus, such a kind of salary cut for the MPs is unworkable.
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Are MPs paid enough?
0 01:22:00

s o After the 2018 amendment to the Salaries and Allowances of Members of Parliament Act, 1954,
o the basic pay of a Member of Parliament is Rs. 1 lakh/month. Over and above that they also get
f Rs.70,000 as constituency allowance, Rs.60,000 as office allowance (of which Rs.20,000 is for
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m also get a daily allowance of Rs.2000/day for attending the session of the Parliament.
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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.

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0 01:35:20 u
• The bills coming from the executive should be subject to a lot of intellectual analysis, academic i'.=
depth, scientific and rational perspective, etc. from the Parliament. ::::,
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running the Parliament is $1.7 billion (i.e. close to Rs.9,000 crores). 0LL
• Thus the Indian Parliament needs to be given much more resources so as to subject issues to more z
rational and effective debate, thereby emerging as a forum of thought leadership. 0
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• The Library, Reference, Research, Documentation and Information Service (LARRDIS) is a service ...I

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.
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0 01:42:40 zw
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1 • In 2026, the population will be 140 crores, still represented by 543 MPs i.e. roughly 1 MP representing
9 25 lakh people.
7 • In contrast, in the UK having a population of 6.5 crores, it is represented by 650 MPs in the House of
1 Commons.
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• Consequence:
o 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
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varying increases in population rise. For e.g. In Malkajgiri constituency of Telangana, the MP
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MPs increase.
5 o It would result in more expense on elections.
4 o Need to address the concerns of Southern states with respect to seat allocation vis-a-vis the
cr Northern states based on population difference.
or o Hence, a simple increase in the number of seats would be insufficient. There is a need for internal i.e.
e intra-state delimitation among constituencies to ensure equal representation.
s, • This issue is going to come up again in the future as 2026 is not far away. As it comes up in the
re future, many new, innovative and creative proposals would also come up.
pr 0 01: 55:30
es Problem of instability in government:
e • One of the principal objectives of the Parliament is to produce a stable government. India had relatively
nt stable governments till 1989, but the scenario changed since then.
e • Since 1989, the problem of instability has come up. In the period from 1989 to 1999, Lok Sabha
d elections took place in 1989, 1991, 1996, 1998 and 1999. In a span of 10 years, there have been 5
b Lok Sabha elections, instead of just 3. Hence, instability in governments has been seen in Post
y Congress polity, characterized by shaky and unstable coalitions.
5 • Post-congress polity:
st
4 o 1 decade-saw the emergence of unstable coalitions
nd
3 o 2 decade (1999 to 2014) - saw the emergence of bipolar coalition polity i.e. two poles emerged in
M Indian political scenario, one of the BJ P and the other of the Congress. This phase was marked by
P stable coalitions formed around either the BJ P or the Congress, which were able to give full five
s. year governments.
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•In o 3 decade (since 20 14) -reemergence of majority government.
•
2 In 2024, India might again face the specter of unstable coalitions again.
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Addressing instability:
1 o Changes in Rule 198:
1, ► Rule 198 talks about no confidence motion in the Lok Sabha. A change can be incorporated
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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.
0 02:02:42 z
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o Electoral reforms �
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Reform the parliamentary committee system.
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0 02:07:45 z
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having 25 or more seats in the Rajya Sabha and 55 or more seats in the Lok Sabha.
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Recognized Group Recognized Party
Rajya Sabha
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Executive - Parliament Relationship:

Functions of Parliament: 0 00:00:28
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The o It also ensures financial control over the government as rightly said, "Parliament is the
cou custodian of public finance"
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of o It has to ensure that taxpayers' money is not embezzled; there is no over-taxation, etc.
min • Parliament is also a unit of national unity:
iste o As it consists of MPs from all parts of the country.
rs o It is like a microcosm of the nation. A Microcosm is when a larger phenomenon is represented
is on a smaller scale.
dra • Representative function:
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fro o It serves as a link between the people and the government.
m • Parliament is also an organ of information:
the o It can seek information from the government by asking pinpointed questions.
parl o If the government fails to provide authentic information, then it may have to face privilege
iam motions, censure, etc.
ent o The information received is more authentic and reliable than that received by common citizens
in a under the RTI Act.
parl
iam • Parliament also performs quasi-judicial functions:
ent o These functions are usually in connection with various functionaries like the President, Supreme
ary Court and high court judges, CAG, etc.
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Need for Parliamentary control:
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gov • Direct democracy is not possible:
ern o Direct democracy is where people who elect their representatives are in a position to directly
me hold them accountable. For e.g. At the local level, the Gram Sabha can directly question their
nt. elected representatives in the Gram Panchayat. However, as the size of population is too
• H large at the national level, direct democracy is not possible.
o • Check government's extravagance, misuse of public funds, over taxation of people.
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• Check brazen majoritarianism:
t o The executive many times may use its majority to push through their agenda unmindful of the
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opinion of the opposition.
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g of population which largely has voted for it, neglecting the needs of other sections.
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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

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• Question hour
• Zero hour zLU
• President's speech: �
o As it talks about the agenda of the year of the government, it is subject to discussion z
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approval. :::i
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Inadequacies of Parliamentary control: �
• Increasing technicality of government:
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control over technical functions of the government. :::i
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• 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
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 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 controlexercised by a fragmentedopposition 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.
� o Hence, it is not a parliamentary government but a cabinet government.
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o Moreover, a government with a huge majority gives less scope for the Parliament to question it
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and hold it accountable.
o It is said that even when the executive is the creation of the parliament, the 'creation dominates
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a:: • Increasing resort to guillotine:
w o It restricts the discussion of the parliament on certain undiscussed issues and directly puts them
to vote.
z 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.
j:: o However, it must be ensured that guillotine is not used frequently. A simple closure should be
:::i used as a norm and guillotine as an exception.
• Frequent use of ordinance:
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0 o While regularizing it as well, the government tries to bulldoze the bill through the Parliament
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Contemporary trends in the working of the Parliament: 0 00:32:27

u • 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.
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� emergence of coalition governments. No single party had a clear majority and hence could not
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a:: as well. It can be said that with coalition governments at the centre, parliamentary committees
� started becoming more representative.
o Since 2014, there has been a revival of the past. A single party dominates the Parliament and
hence dominates the parliamentary committees. The representativeness of parliamentary

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Private Member Bills:
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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.
o As a recent trend, there has been an exponential rise in the number of private member
bills
tabled or introduced in the parliament. For e.g. in the 15th Lok Sabha there were 372 such bills
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Adverse rulings from the chair:
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UK is considered to have a traditional sovereign parliament. The UK Supreme Court does have the
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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.
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India is a country which practices constitutional sovereignty. No entity whether at the national or
state level is superior to the constitution.
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In India, there are legal limitations on the powers of the Parliament such as:
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u o Passed bills by both houses, pending President's assent do not lapse.
s o Suspensive veto bills do not lapse i.e. bills referred back to the Parliament for reconsideration by
i the President do not lapse.
n o Dead locked bills do not lapse, if the meeting for a joint sitting has been called before the dissolution.
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s Types of majority: 0 00:58:20
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p Simple majority:
e o It means (50%+1) of present and voting. Most of the legislative business in the parliament, money
n bills, etc. require a simple majority.
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n required to form the government.
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Special majority:
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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.
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i o Undermines the position of the CEO:
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take action against a minister of the other party in a coalition, even though the minister is
m guilty of corruption.
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k Although there are problems in coalition governments, but on the whole they encourage centrist
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have the major agenda just to come to power.
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Parliamentary form Presidential form

• Distinction between Deju re and Defa cto head • No such distinction

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coalition Prime ministers like Dr. Manmohan Singh.
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o As parliamentary government is a game of numbers.
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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
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 � THE CASE FOR A PRESIDENTIAL
=.iii SYSTEM IN INDIA AND MPLADS
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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.

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 C liamentary system (Westminster form) have not evolved in India:
a o As there are no clearly defined political parties having coherent policies and vision in India.
s o The ideologies of political parties in India are very fluid, as they keep changing based on political
e circumstances.
f o In India, a political party is merely a label of convenience which any candidate adopts or discards
o to serve his political interest better.
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• Absence of real party system in India:
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o In India, people vote for the executive and not the legislators.
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e o As a result, the parliament loses its independent identity.
si • Candidates also contest to become members of the executive, not the legislature. This is not the
d case in the presidential system of the USA. When candidates contest to become part of the executive
e it generally has following consequences:
n o It leads to defections/instability, as the legislator may easily join another party when ministerial
ti positions are not offered.
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o The Prime Minister cannot appoint a cabinet of outstanding competence, as he has to appoint
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the members from his party to ministerial positions. In comparison, the President of the USA
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st has relatively much more free hand to appoint anybody who is of outstanding competence.
e o Legislation also offers, as the law is drafted by the executive with minimal legislative input.
m Secondly, the executive can always issue a party whip to vote in favor of the bill and thus, theMPs
i blindly vote for any bill coming from the executive. This makes the Parliament to lose its
n independent identity.
I o If candidates are contesting elections to become members of the executive, but for those who are
n not able to become ministers, for them Parliament is a forum for adversarial combat, for
d
defending policies of the executive, and for conflict, etc. Parliament is no more a forum for somber
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reflection or debate.
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: • The basis of Shashi Tharoor's argument is that we have not been able to evolve or strengthen the
• T parliamentary conventions which are there in England and which are required to make the system
r work. Then the problem is with the people and not with the system.
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d • In this context, Alexander Pope's statement that "For Forms of Government let fools contest;
i whatever is best administered is best" seems relevant.
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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 Local Area Development Scheme (M P LADS) :

•
It was first implemented under the Narasimha Rao government in 1993. 0 00:20:20
•
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. V)
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The expected deployment of funds is on development projects with a view to create some durable
community assets with focus on national priorities like drinking water, sanitation, etc. c..
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development projects under MPLADS.
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o For construction or maintenance of religious buildings
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expenditure.
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Non-lapsable fund:
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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:
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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.
a.. o This results in unequal distribution of funds across districts.
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• Poor utilization of funds:
z 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 14 Lok Sabha, an amount of Rs. 176 crores was not utilized. In
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the 15 Lok Sabha, an amount of Rs.551 crores was not utilized. In the 16 Lok Sabha, an
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z amount of Rs. 1734 crores was not utilized.
• Compromises jurisdiction of local bodies:
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o The activities under the scheme are ideally under the domain of local bodies. Local bodies
w are already cash strapped; hence it would have been better if the funds were given to them
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for
tii implementing the projects.
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o In this context, the 2 Administrative Reforms Commission (ARC) and the Election Commission
<( have recommended discontinuing the MPLADS scheme.
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Since 2014, the scheme also has overlapped with the Saansad Adarsh Gram Yojana (SAGY) . Under
.= the SAGY, the MP has to identify one village other than his own, adopt it and prepare a village
w development plan for that village, try to ensure convergence of various schemes in terms of
0 developmental needs and use the money from MPLADS in case of fund shortage and critical gaps.
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 lit3 STATE EXECUTIVE
- THE GOVERNOR (PART- 1)
The Governor (Part- 1)
Article 153
•
There shall be a Governor for each state:
Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or
more states, this provision was not there in the original constitution. It was added by the 7th constitutional
Amendment Act' 1956.

Article 154: Executive Power of State

(1) The executive power of the State shall be vested in the Governor and shall be exercised by him
either directly or th rough officers subordinate to him in accordance with this Constitution.
(2) N othing i n this a rticle s ha l l-
Executive Powers ana logous to
(a) be deemed to transfer to the Governor any fun ctions conferred President:
by any existing law on any other authority; or • Article1 54: Article53
(b) prevent Pa rliament or the Leg islatu re of the State from • Article161: Article 72
conferring by law fu nctions on any authority subordinate to • Article164: Article75
the Governor. • Article166: Article77
• Article 167: Article78
Article 155: Appointment of Governor
•
The Governor of a State shall be appointed by the President by wa rrant under his hand and seal.

Article 156 : Term of office of Governor

(1) The Governor shall hold office during the pleasure of the President.
(2) The Governor may, by writing under his hand addressed to the President, resign his office.
(3) Su bject to the foregoing provisions of this article, a Governor shall hold office for a term of five years
from the date on which he enters upon his office:
Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his
successor enters upon his office.
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No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed
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(1) The Governor shall not be a member of either House of Parliament or of a House of the Legislature of

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(2) The Governor shall not hold any other office of profit.
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(3) The Governor shall be entitled without payment of re nt to the use of his official residences and shall be
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 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 0

having Legislative Council belonging to any political party who is disqualified for being a member z
of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed
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disqualification till the date on which the term of his office as such member would expire or 0
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where he contests any election to the Legislative Assembly of a State or either House of the J:
Legislature of a State having Legislative Council, as the case may be, before the expiry of such �
period, till the date on which he is declared elected, whichever is earlier. LU

(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. >
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(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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president. During the period of President's rule in a state, the governor enjoys extensive executive
z powers as an agent of president.
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The Governor acts a chancellor of state universities.
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The Governor is part of the State Legislature.
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He can Summon, Prorogue, and Dissolve the state legislative assembly. Governor can exercise these
0 powers on the aid and advice of the council of ministers headed by the Chief Minister. In the Nabam
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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 forthe 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
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(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the >
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Legislature of the State assented to by the Governor, but every such Ordinance-
(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in 0
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the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the LU
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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

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of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
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 Explanation.-Where the Houses of the Legislatu re of a State having a Leg islative Cou ncil
a re summoned to reasse mble on diffe rent dates, the period of six weeks shall be reckoned from the later of
those dates for the pu rposes of this clause.
(3) If and so fa r as an Ordina nce under this article ma kes any provision which wou ld not be valid if
enacted i n a n Act ofthe Legislatu re ofthe State assented to by the Governor, it s ha ll be void:
Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the
Legislature of a State which is repugnant to an Act of Parlia ment or an existing law with respect to a
matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of
instructions from the President shall be deemed to be an Act of the Legislatu re of the State which has
been reserved fo r the consideration ofthe President and assented to by him.

254. Inconsistency between laws made by Parliament and laws made by the Legislatures of
States.
(1) If any provision of a law made by the Legislatu re of a State is re pugnant to any provision of a law
made by Parliament which Parlia ment is com petent to enact, or to any provision of an existing law
with respect to one of the matters enu merated in the Concu rrent List, then, su 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, shal l preva i l a nd the law
made by the Legislatu re of the State shall, to the extent of the repugna ncy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in
the Concu rrent List contains any provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the law so made by the Legislature
of such State shall, if it has been reserved for the consideration of the President and has received
hi s assent, preva i l in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with
respect to the same matter including a law adding to, amending, va rying or repea ling the law so made
by the Legislatu re of the State.

Financial Powers
a:: • Mo ney bi l l s can be i ntroduced i n the state legislatu re on ly with the prior consent of the Governor.
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• He constitutes the State Fina nce Commission every five years fo r sharing the fi na nces between the
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state government and loca l bodies.
<., • It is the respon sibility of the Governor to represent the Annual Financial Statement in the state
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Judicial Powers
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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 Discretionary power of the I

Governor can be classified in two parts:

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Explicit Discretion:
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Category A- The Governor is not required to consult the Council of Ministers: :::c:
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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 371- Governor ofMaharashtra and Gujarat having special responsibility for socio-economic
development for Vidarbha,Marathwada, and Saurashtra, Kutch region respectively.
• Article 371 A- The Governor of Nagaland has a special responsibility with respect to maintaining Law
and Order situation in the state.
• Article 371 C-Manipur- regarding the administration of the hill areas in the state.
• Article 371 F - Sikkim- for ensuring social and economic advancement of the different sections of the
population.
• Article 371 H- Arunachal Pradesh- With respect to law and order in the state.
• Article 371 J - Karnataka- Establishment of a development board for the six backward districts of the
Hyderabad-Karnataka region.
• Under the Andhra Pradesh reorganization Act 2014, 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.
a:: • Sending messages
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• Centre-State Conflict with respect to executive powers - When there is centre-state conflict on a
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matter where both are claiming executive jurisdiction, then the governor has to wait for instructions
<., from the Centre. The Centre can issue constitutionally binding directions to the state in such matters
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But the direction may not be issued immediately by the centre. Then the governor, by implication,
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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.
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.
o Raj Bhawan as Rehabilitation centre -Raj Bhawan is often used as a rehabilitation centre for the
burnout politicians and politicians who have lost elections. This is a possibility when the
centre nominates the governor to the states.
o Mass removals - It is often that whenever the party changes at the central level, the governor
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different from that ruling in the centre.
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z local politics on the behest and instructions of the centre is seen in the case of the
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such moves.
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 Note:
As the d raft constitution provided fo r the elected governor, the constituent assem bly accepted the
Rajeshwar Prasad Amendment to the draft constitution. This amend ment provided fo r 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 minister has to work with the
governor, the chief m i n ister should be consu lted by the prime m ini ster i n a ppoi nti ng the governor of
the concerned state.
But, ti ll 1967, the Chief Minister was not consulted but merely info rmed as there was the same party
ru lin g i n a l most a l l the states a nd 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 nd
state relationship, befo re giving its recommendations made some observations as follows:
• In most cases, when the governor of the state was appointed, the Chief Minister was not consu lted .
Where the Chief Minister was consulted, was just a procedural fo rmality and no effective consu ltation
took place.
• There were a few cases where the Chief Mi n i ster outrig htly rejected the centra l government nomi nee
for the governor i n his state. Yet, the same governor was appoi nted by the centre, without a ny
debate or discussion with the Ch ief M i n ister, often bu l l dozi ng the a ppointment of the governor on the
state.
• Sometimes, the Governor was appointed befo re the formation of the state government.
Recommendation: It recom mended to amend Article 155 of the constitution to provide fo r effective
consu ltation with the chief minister before the governor is appointed.

• Types of Persons Appointed

Most of the persons appointed so far as the Governor of the states have been:
o Politicians - Mainly, the governors have been the pol iticians, appointed from the ru ling pa rty, both
a ctive an d n on-a ctive as wel l .
o Retired Bureaucrats - Many retired bureaucrats and civi l servants have been appointed as the g_
Governor ofthe states. �
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o Retired service Chiefs - In m a ny states, retired service chiefs such as reti red chief of defen ce z
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staff, chief of nava l staff, chief of a rmy staff have been appoi nted as the governors. w
o Social Activists - On very ra re occasions, some prominent social a ctivists have been appointed as (.!)

the governors in the states. w

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o Academicians - Very rarely, some academicians have been appointed as the governor in some w
states.
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 Analysis:
• 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 appointed 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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o Appoint outsiders - Appoint a person as a governor who is an outsider from the state as
g_ that person would be away from the local politics of that state.
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z o Detached personalities with wide social-political background with a deep understanding
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of economy and polity - Persons who are detached from politics and have a wide social
political background with a deep understanding of economy and polity should be appointed
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(Punchi commission also recommended on the same lines)
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• National Commission to Review the Working of the Constitution (NCRWC):
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 Sup reme Court 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 applicable 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).
o Supreme Court, in the S. R Bommai Judgment, 1994, that whenever a doubt arises in the mind of
the Governor when Chief Minister loses the confidence of the house, then he should not decide this
issue at his residence (Raj Bhawan), but the house of the legislature-the legislative assembly.
This made Floor Test compulsory. The floor test is testing the majority of the government (the
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ruling party) or the chief minister on the floor of the house-legislative assembly. g0_
* Important Information

• Governor can sanction prosecution under section l�:)7 of Code of Criminal Procedure
(CrPC) and section I '.:> of Prevention of Corruption Act (PCA). l'.:J88 on the Chief
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Minister instead of dismissing him from his post i-t the Chief Minister is facing some w1-
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 • corruption allegations.
• 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 10 (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 Union

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Issues in position of the Representative of the
Governor Union

{
Governor wears two
hats
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
on arbitrary grounds then the court would be compelled to intervene. �
Removal of the Governor g0_
•
Rajamannar Committee, 1969: This committee was appointed by the Tamil Nadu Government on �
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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, after an inquiry by the supreme court. w
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Sarkaria Commission, 1983: The Sarkaria Commission recommended that the five-year tenure of the
governor should not be disturbed. If at all it is to be terminated prematurely, it should be done for (.!)
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some very compelling/strong reasons. Also, before dismissing a governor, a show-cause notice :::c
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 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 the governor, etc., should be implemented to improve the position of the governor.

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 STATE EXECUTIVE - CHIEF MINISTER
AND COUNCIL OF MINISTERS
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
may by public notification appoint.

Explanation: Recommendation of the 2nd ARC on the capping of Council of Ministers

•
Referring to the 73rd and the 74th Amendment Act 1992 which are to devolve the powers and
responsibilities to the local bodies, the 2nd ARC observed that if this devolution is effective, then
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Despite the 91st Amendment Act 2003 which brought the 15% cap on the council of ministers,
many states like Uttar Pradesh, West Bengal, Orissa, have their Council of Minister
disproportionately large.
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state should be linked to the strength of the assembly.
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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. l/)
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STATE LEGISLATURE - LEGISLATIVE
ASSEMB LY
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.
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Assam and Rajasthan have also passed the resolution for having a legislative council which in past,
ca which is still pending in the Parliament.
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Article 169: Abolition or creation of Legislative Councils in States
(1)Notwithstanding anything in article 168, Parliament may by law provide for the abolition of the
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State having no such Council, if the Legislative Assembly of the State passes a resolution to that
effect by a
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majority of the total membership of the Assembly and by a majority of not less than two-thirds of
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supplemental, incidental, and consequential provisions as Parliament may deem necessary.
(3)No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes
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of article 368.
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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 2001 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:
Provided further that such readjustment shall take effect from such date as the President may, by
order, specify and until such readjustment takes effect, any election to the Legislative Assembly may al
be held based on the territorial constituencies existing before such readjustment: �
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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-

(i) the total number of seats in the Legislative Assembly of each State as readjusted based on the w
1971 census; and
(ii) the division of such State into territorial constituencies as may be readjusted based on the 2001 >
census, under this clause.
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Article 171: Composition of the Legislative Councils w

(1) The total number of members in the Legislative Council of a State having such a Council shall not ...I

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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 totalnumber 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 -

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1/3rd - local bodies Creation of
1/12 - graduates of 3 years standing PR+STV
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1112 - teachers of 3 years standing
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116th - Nominated by Governor (from the field of arts, literature, social service, science,
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(PR - Proportional Representation; STV - Single Transferable Vote)

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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
territorial constituencies as may be prescribed by or under any law made by Parliament, and the
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elections under the said sub-clauses and under sub-clause (d) of the said clause shall be held in
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persons having special knowledge or practical experience in respect of such matters as the
following, namely: -
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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
(R PA) 1951.

Chairman of Legislative Council vs Rajya Sabha

• No position of Vice-Governor, as in the case of Rajya Sabha, whose chairman is the Vice
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President of India. �
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Sabha but on the other hand, the Rajya Sabha chairman is not a member of the house.
• The tenure of the chairman of the Legislative council is six years, whereas, the tenure of w
the chairman of Rajya Sabha is five years.
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The relationship between the LA and LC is on a similar line as that of the Lok Sabha and the Rajya
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bill can be introduced only in the legislative assembly, only with the prior recommendation of the
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be returned to the legislative assembly within 14 days, either with or without amendments. The
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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.

(Second Administrative Report Commission (2nd 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

ca representatives of local bodies work for the betterment of the local bodies. Therefore, it should act as a
� federal chamber between the state government and local government, much like the Rajya Sabha which is
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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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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 GOVERNMENT
� - INTRODUCTION
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
0 government. There is only district administration looking after development, law and order, public order
etc. Some areas of district administration are overlapping with that of the PRl's and ULB's. Meaning their
Q functions are not defined and rather scattered and there is no one comprehensive entity to be called as
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government at this level. The structure is fragmented at the district level.
According to many of the Indian thinkers in administration are of the opinion that the local self
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Raising at least a part of their revenue locally.
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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. z
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Reduce the burden of the upper level of government: The local self-government reduces the 0
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:::
devolved, responsibilities and authorities are given, and they have funds at their disposal. z f-
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Two-way channel of communication: Local self-government act as a two-way channel of
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most intimately involved with looking at the local problems and issues and they communicate these �
problems and issues to the higher level. So, they are the link between the local population and the
higher level of the government and as a channel through which government schemes can be 0::
implemented and proper implementation over those schemes can also be exercised. LU
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 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.
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Indispensable for Decentralized Planning and Development
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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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� - EVOLUTION OF THE 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.

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D meaning instead of one person being made in charge of an area, a plural body such as a
u council/committee was in charge of the rural area. Terms such as panch Parmeshwar and panch
r mandlis were frequently used, which meant that now the principal body responsible for managing the
i affairs of the area had transformed from a single member body to a plural member body.
n
g Perhaps, the best example of effective organization of local self-government, in Ancient India is of
Cholas administration. Some copper plate inscriptions have been found at Uttaramerur ( Tamil Nadu)
t which date back to the 9th and 10th century AD, which give information about the local self-
h government on the democratic line.
e
G • Medieval India - During the medieval period, the local government suffered a setback due to the
u
p evident reason that the conditions in the country were unsettled on account of various external
t invasions. The Sultanate which was established in India was heavily centralized, which goes against
a the concept of local government.
a
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e • British Period - Today 's Local government institution of India traces its origin to the British period,
, especially urban local government. Britishers had set up the local government institution as it would
c
o bring in some modernization and this modernization would increase the demand for British goods.
u Another reason for this set-up would not burden the British government resources and the
n resources of the local areas would be used (to give relief to Imperial finances). Hence, they
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 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 Vl
Foundation and the Government of India. �
Under CDP, Blocks came into existence as territorial units of development. Whereas, districts were divided �
I
into sub-division, which were further divided as tehsils. They were the field units of revenue administration. u
This programme is based on people's participation rather than that of bureaucracy alone. z
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Balwant Rai Mehta Committee I
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To evaluate the working of this programme, in 1957, Balwant Rai Mehta Committee was set up. It was 0
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appointed by the National Development Council (NDC). In its report, it found that CDP was a partial z
success because there was no people's participation on account of the absence of institutional framework 0
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at the grass-root level. :
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The Balwant Rai Mehta Committee gave certain recommendations which are as follows:
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•
Establishment of a three-tier Panchayati Raj System
a Gram Panchayat at the village levels
o Panchayat Samiti at the block level (executive tier) and
1-
o Zila Parishad at the district level (apex level-supervisory role). z
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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 z
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 elected members. Elections should take place every five years.
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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
District of Rajasthan on 2nd 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: The phase from 1965 to 1969 is called a period of Stagnation as there was no development taking place.
1- Then from 1969 to 1977 is the period of decline. This was a period of heavy centralization as well
u..
0 as bypassing the state government in the process. It also saw the period of emergency ( 1975-77).
z From 1977 onwards, the revival process was started. The Janata party appointed the Ashok Mehta
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i= Committee on Panchayati Raj Development.
In 1992, the government of India came up with the 73rd and the 74th amendment act which gave
3

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In 1977, the Janata Government appointed a committee on Panchayati raj institutions under the
u.. chairmanship of Ashok Mehta. Some of the recommendations of this committee are as follows:
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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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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. Vl
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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
1989 to constitutionalise Panchayati Raj Institutions and make them more powerful and broad-based. z
Although the Lok Sabha passed the bill in August 1989, it was not approved by the Rajya Sabha. The bill w
was vehemently opposed by the Opposition on the ground that it sought to strengthen centralisation I
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in the federal system.
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Eventually, after a lot of modification of these bills, states were brought on board and finally, the 73rd LL

(PRls) and the 74th (ULBs) Amendment Acts 1992 were passed.
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The 73rd Amendment Act added part IX and eleventh Schedule (29 subjects) to the constitution for the i=
PRls. :::,
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The 74th Amendment Act added part IX-A and twelfth Schedule (18 subjects) to the constitution for the
Municipalities.

Part IX consists of three types of provisions: 1-

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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.

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e 2) Notwithstanding anything in clause ( 1 ), Panchayats at the intermediate level may not be constituted
2
in a State having a population not exceeding twenty lakhs.
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8. Article 243C. Composition of Panchayats
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o 1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with
n respect to the composition of Panchayats: Provided that the ratio between the population of the
st
it territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by
ut election shall, so far as practicable, be the same throughout the State,
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n 2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial
of constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into
P
territorial constituencies in such manner that the ratio between the population of each constituency
a
n and the number of seats allotted to it shall, so far as practicable, be the same throughout the
c Panchayat area.
h
a 3) The Legislature of a State may, by law, provide for the representation
y (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate
at
s level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats

1) T at the district level;

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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 allotted by rotation to different constituencies in a Panchayat. w
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2) Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for I
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women belonging, to the Scheduled Castes or, as the case may be, the Scheduled Tribes. 0
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 z
election in every Panchayat shall be reserved for women and such seats may be allotted by 0
rotation to different constituencies in a Panchayat. vi
4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved
for the Scheduled Castes the Scheduled Tribes and women in such manner as the Legislature of a c::
State 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, a..
as nearly as may be, the same proportion to the total number of such offices in the Panchayats at
each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the 1-
State bears to the total population of the State: Provided further that not less than one third of the
total number of offices z

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 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 frommaking 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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I: Article 243F. Disqualifications for membership
I:
LL 1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat:
0 (a)if he is so disqualified by or under any law for the time being in force for the purposes of elections
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0 ground that be is less than twenty five years of age, if he has attained the age of twenty one
in years;
(b)if he is so disqualified by or under any law made by the Legislature of the State.
0:::
a 2) If any question arises as to whether a member of a Panchayat has become subject to any of the
disqualifications mentioned in clause ( 1 ), the question shall be referred for the decision of such
.
I authority and in such manner as the Legislature of a State may, by law, provide.
1-
z Article 243G. Powers, authority and responsibilities of Panchayats
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� Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the
z Panchayats with such powers and authority and may be necessary to enable them to function as
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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 allocation between the Panchayats at all levels of their respective shares of such w
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proceeds; I
► the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated Li.
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by, the Panchayats; (/)
► the grants in aid to the Panchayats from the Consolidated Fund of the State; z
o the measures needed to improve the financial position of the Panchayats; 0
o any other matter referred to the Finance Commission by the Governor in the interests of sound vi
finance of the Panchayats.
•
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
they shall be selected.
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The Commission shall determine their procedure and shall have such powers in the performance of
their functions as the Legislature of the State may, by law, confer on them. 1-
•
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 z
Legislature of
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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
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:I: of a State were references, in relation to a Union territory having a Legislative Assembly, to that
I Legislative Assembly.
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Vl any Union territory or part thereof subject to such exceptions and modifications as he may specify in the
z notification.
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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
a
areas referred to in clause ( 2 ), of article 244.
.
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Nothing in this Part shall apply to -
1- (a)the States of Nagaland, Meghalaya and Mizoram;
z (b)the Hill areas in the State of Manipur for which District Councils exist under any law for the time
w 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 G OVERN MENT - SIGNIFICANCE OF THE 73 RD
� CONSTITUTIONAL AMENDMENT ACT AND G RAM SABHA

Significance of the 73rd 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
commission has been established which will review the position of the local bodies and
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I recommend to the state the devolution of resources to the local bodies.
al The elections of the local bodies are handled by the independent State Election Commission which
earlier was done by the state government.
� •
Separate Functional Domain -There is a separate functional domain to be dealt with the local
l!) bodies that is the schedule XI (29 subjects) and XII ( 18 subjects) which has been mentioned in the
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 of ndia's claim to be the 'biggest democracy' has acquired substance - After 1992, this claim of
poli India being the biggest democracy gained substance as the scale of representation increased due
tics to the local bodies' representatives. Around 3.2 million new representatives have been added.
in Each member of PRls (rural area) at any level represents 340 citizens.
Indi Each member of Municipalities (urban area) at any level represents 560 citizens.
a
by Gram Sabha Functions
incl Gram Sabha exists in every state as it is a constitutional provision. As Gram Sabha has varied powers
udin and responsibilities across the state as it depends upon the state to decide independently what kind of
g powers, duties, and responsibilities it will devolve to the Gram Sabha. Although it varies state to state but
the certain following functions are common to all, in one way or the other which are as follows:
wea •
Considers the Annual Budget of Panchayat
ker •
Considers the Annual Audit report
sec •
Considers the Annual Administration report
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Performs the Social Audit of Government Schemes
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h In some states:
as o It identifies beneficiaries
the o Selection of schemes to be implemented
SCs •
In some states such as Chhattisgarh and Madhya Pradesh, the Gram Sabha has been given the
/ST Power to Recall. Power of Recall allows citizens to remove or replace the post holders even
s before 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
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Sabha. I
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• Improving Transparency & Accountability - Regular meeting of Gram Sabha and its member �
increases transparency and accountability. �
• Fixation of Priorities of development - Gram Sabha can have a say over the priorities of the
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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
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direct democracy. <(

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Problems in the Working of the Gram Sabha 1-

• Large and unwieldy in size - Some of the Gram Sabha are very large having a population of almost z
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10,000 people. This makes it difficult to effectively conduct the Gram Sabha meetings. z
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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,
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ensured that the meetings are held effectively as well as regularly.
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o •
Redesigning of the Gram Sabha-Gram Panchayat Relationship - The Gram Sabha-Gram
f Panchayat relationship should be redesigned on the line of Cabinet-Parliament relationship.
i This can be done with the help of ward Sabha - which should have few members - which then
n forms the Gram Sabha which will reduce the size of the Gram Sabha.
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 LOCAL SELF GOVERNM ENT - STATE CONTROL OVER
PAN CHAYATS AND PROBLEMS FACED BY TH E
PAN CHAYATS ( PART - 1)
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 Th the PRls are legally created, funded, and empowered by the state themselves, it is necessary
e that states make sure that PRls functions properly.
St •
Balance Regional Development - It needs to be ensured that Gram Panchayats functioning does not
at have an adverse impact on the neighbouring villages and areas which can be looked over by the
e
co state. Also, the state should ensure that balanced regional developments take place in all the areas
nt of the state.
rol Therefore, the state should avoid the development of parish pump attitude, i.e., parochial attitude only
ov on one's own needs unmindful of adverse impact on the neighbouring villages and areas.
er •
State Governments provide funds, administration & technical assistance - State government has
th the right to control the PRls as it is the state government that provides the funds, administration,
e and technical assistance to the PRls.
P
Rl Means of State Control
s
is "Where the spur and rein are required, state government uses a sludge hammer". Meaning wherever a bit
ne of encouragement (spur) is required, and a bit of control (rein) is required, the state government uses
ed very direct, crippling, invasive, and very diabolic control (hammer) over the PRls. These controls are as
ed follows:
be •
Key Officials are state government appointees - The critical staff of the local bodies are appointed by
ca the state government which may cripple the functioning of the local bodies. Through these
us employee's state government can control the functioning of these local bodies.
e •
Superseding power with the state - The states can dissolve the Panchayats (which is an elected
of
th body) prematurely based on the State Panchayat Acts which have to weigh provisions for the same.
e This dissolution is regular in many states due to loopholes in the Panchayats act.
fol •
Suspends and Remove members-The state government can also remove and suspend the members
lo of local bodies under certain circumstances. The provisions of removal and suspension are mentioned
wi in the respective State Panchayats Acts.
ng Here, LM Singhvi's committee recommendation of the Panchayati Raj Judicial Tribunal which should
re deal with such cases.
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•
Suspend Resolution passed by PRls -State governments can suspend the resolution passed by the
s: PRls.
•
Vertical Budgetary Approval -The budget of Gram Panchayats is approved by the next higher
•
L level Block Panchayats; the budget of Block Panchayats is approved by the Zila Panchayats and the
e budget of Zila Panchayats is approved by the respective State Governments.
g •
Binding Directions -The state government can issue binding directions to the local bodies. The local
a
l bodies do not have an option to reject those directions and they must follow it.
C •
Audit of PRls Accounts - The state government audit the accounts of the PRls.
r •
Order enquiries into affairs of PRls - State Government can order enquiries into the affairs of the PRls.
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Maximum and Minimum of Powers decided by the State Government - The state government
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•
Tied Grants- State Government gives some grants to the local bodies which are decided by the
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state government itself where it must be used. They are in the nature of tied grants which specify
where the money can be spent. i
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Evaluation of the Working of the PRls �

A Pan India judgement is not possible for the PRls because: �
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Different levels of Empowerment in different States: the power structure, the duties & z
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responsibilities and finances of the local bodies are decided by the respective state governments in
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PRls, not a completely autonomous structure: There is no completely autonomous structure for �
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Multiple Objectives: PRls were set up with multiple objectives and purposes, one such was that (/)

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working of the PRls on the pan India level. <( z
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Problems of PRls �
•
Lack of adequate politico- bureaucratic will or vision - With the launch of the 73rd amendment act �
in India, it has also seen the rise of the important power structure in the country - the rise of local u::c
and village level politicians. This saps the political will at the state level as they see them as a threat z
to their own power. �
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More powers going to the local bodies means fewer decision-making powers with the
bureaucratic apparatus. So, it is seen as a threat to their own authority. w
If this problem is addressed, other problems automatically fall into place. �
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Social Landscape - The social landscape in rural India is not conducive for the effective growth of
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o The patriarchal structure of the ruralareashampers the growth of the local bodies. �
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 effective empowerment in the rise of the backward class particularly the Dalits.
bodies
and
Caste still plays a role in the following ways:
they • Article 243 D (w.r.t. the quota of SCs/STs) has not been implemented faithfully.
are • Rotational Policy - the five-yearly rotational policy does not give sufficient time for the elected
the
ones member to make lasting ties with the people of its constituencies.
who • The creamy layer has benefitted more among the backward classes.
are • Proxy Candidates - the concept of sarpanch pati is seen where women seats are reserved and other
the
electe reserved seats as well.
d • Violent Backlash faced by the backward class. They have also been killed often referred to as
repres
PanchayatMartyrs.
entati
ves in • Restrictive Qualification imposed by the State government for the candidates. The states have
these imposed educational qualifications which is troublesome more for the backward classes as their
bodies
educational attainment is less than the non-backward classes. The educational norm was upheld by
.
o the apex court in the Raj
Bala Case of 2015 (State of Haryana).
C The result of thisjudgement in Haryana was:
o Half of ruralwomen of were disqualified
a
o 68% of SC women were disqualified
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o 41 % of SC men were disqualified.
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 � PROBLEMS FACED BY TH E
� PANC HAYATS ( 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).
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
N 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.
� o The existence of bodies like Parastatals like DRDA, DUDA, DHSS - Agencies like District Rural
(/)
Development Agency (DRDA), District Urban Development Agency (DUDH) and District Health
� and Sanitization Society (DHSS) are parastatal bodies. These bodies are neither complete state
�
::I: nor completely non-state. They are wholly or partially owned by the government, autonomous or
u semi-autonomous, set up as cooperative societies or under statute/laws with a specific purpose
z in mind.
w Such bodies should be discontinued (as also recommended by the 2nd ARC), as they have
::I: overlapping responsibilities and functions with the district administration and PRls.
o Parallel Programmes like MPLAD & MLALAD - In 1993, Narsimha Rao Government enacted the
0 MPLAD scheme in 1993, following which several states started with the MLALAD schemes. Local
w area development is the most important responsibility of the local bodies. Parallel programmes like
u these are out of the purview of these local bodies which again causes conflict between these two.
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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
Panchayat Swabhiman (Pride) to
has increased in the local bodies' elections. The journey from the
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 representatives which is problematic. The 2nd 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. �
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o The Functions mentioned in the eleventh schedule (29 subjects) are not fully transferred to the z
Panchayats. They have been inadequately devolved.
The Functionaries, which is the staff at the Panchayat level, is appointed and controlled by the w
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State. There are frequent transfers of these functionaries with very small tenures. They are not
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 u
functionality comes into the picture, meaning they do not have the capacity to use the 3 Fs
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properly. The training 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 ...J
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from 0 to 1, where a higher score means higher devolution. The devolution index has been al
divided into two parts by the ministry of Panchayati Raj: 0
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► D ose powers have been devolved or not.
e The ranks are prepared separately on both parts. The states have ranked differently on both
v Devolutions in Policy and Practice. And 92% of the states have a score of less than 0.5.
o
l On the Whole...
u Even after almost 30 years since the 73rd constitutional amendment act has been implemented, local
t bodies still do not fully enjoy the constitutional status as a self-governing level of administration as
i perhaps enjoyed by the local governments and central government.
o
n • Local bodies are considered shadowy outliers in the system of government.
• Inadequate capacities: The capacities of the local bodies are inadequately built.
i • The problem of "holding together" vs "Coming together federation": Coming together
n 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
P to the states and
r states further do the same with the local bodies.
a
c • Most Indians accept Centralized power: Since the very beginning, the notion of the nation has been
t in the mind of Indians and accepting the Centralized power.
i • No pressure on the government for Decentralization: There has never been any pressure on the
c government to implement decentralization. The citizens may change the political party at the centre
e 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
B bodies is constitutional but the powers they get is from the state government. The state and the
a central government do not view these local bodies as separate independent tiers of government.
s Rather both the central and the state government has found a convenient way of implementing their
e schemes and programmes through the local bodies. Hence, programmes drafted and framed by
d the central and state government are serviced and delivered through the local bodies. Thus,
means that the local bodies are used as "Service Delivery" channels for such schemes.
o
n Election-Related Inadequacies
• State government postpone elections - The state government postpones the elections by giving the
t
h following excuses:
e o Delimitation of Constituencies has not taken place and nor there is any delimitation commission
for the local bodies.
f o The reservation matrix has not been worked out by the state government.
i o Natural Calamities are used as an excuse.
e
• State Election Commission (SEC) to block postponement blunted by:
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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 bodieselections and not to indulge in such unconstitutional behaviour.

Impact of 73rd 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 a

• 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.
• Panchayat Pati - The concept of Panchayat pati or sarpanch pati or proxy sarpanch exists where
the
women are a proxy representative, and all the actual work is handled by her husband.
• Lack of adequate exposure - In a democratic platform, the leader has to put across the views
forcefully and assertively and make the arguments heard. In rural areas, where women are to veil in
front of 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.
• Restrictive Qualification in states - States like Haryana have put educational qualification as
a
condition to contest the election. Few other states have 2-child norms which hamper her
participation in the election. The 2-child norm was upheld by the apex court in the Javed Case of
2003.
• Hardly get nominated or elected from general seats - Women get nominated or elected mainly
from
the reserved seats for them and it is hardly seen that they are being nominated or elected from
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•
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.
Between political development and socio-economic development, the former has been better realized
than opposed to the latter.
N 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.
(/) •
PRls do not make use of limited taxation power - They do not use their taxation power due to the
� fear of backlash from the people who are closely in contact with the community.
�
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State Grants uncertain, irregular, and tied - The grants which come from the state are generally
u
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•
No Market for loans - The PRls has very restrictive borrowing powers which have to be approved by
::I: the state governments. Hence, they do not have a market to borrow loans.
•
State Finance Commission (SFC) has been a near-complete disaster - The problems with the SFC
0 are as follows:
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u o Periodicity not maintained - The periodicity to set up SFC at the interval of 5-years has not
been maintained by most of the states. Only four states have set up their 6th finance commission.
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o Inadequate survey of local finances - The SFC conducts an inadequate survey of the local bodies.
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panchayats) and the absence of adequate maintenance of accou nts by the local bodies.
o Poor quality of members - The qualifications of the members of the SFC are not mentioned as a
result
the quality of the members in the SFC is poor. It is decided by the state legislature by law who are
mostly serving bu reau crats and politicians and less often experts.
o The fate of recommendation - The recommendation of the SFCs is only advisory in nature and
hence, a large number of recommendations a re rejected by the state government as opposed to the
U nion Finance Commission (U FC) recommendation, which most ofthem are accepted.
Also, those accepted by the State, a re not notified in the state gazette and those notified are largely not
implemented.
o No synchronization with UFC - After the 73rd amend ment a ct, one more fu nction was added to
article 280 of the constitution: the UFC will also ma ke a recommendation as to how the consolidated
fund of state government ca n be augmented so that they are able to follow the recommendations of
the state
fi nance commission.
But the problem is that there is no synchronization between the SFC and UFC - both are set up at
diffe rent time, making it al most impossible to adhere to any ofthe recommendations by the UFC.
o Poor Quality of Reports - The quality of the SFC reports is poor in quality. The recommendations are
not in match with the o bjective or preface of the report.
o Delay in submission of the reports and Action Taken Report (ATR) - There is no periodicity and
time fra me in submitting the reports. The average delay in India in the submission of SFC reports
and the
ATR is sixteen months.
o Global Sharing formula not used - The global sharing fo rmula which is being used between the centre
and the state should also be used between the state and the local bodies where all the taxes should be
shared (a certain proportion) with the loca l bodies. But this is not done, and taxes are shared only (/)

selectively. �
o Tied nature of funds - Though the fu nds a re available to the loca l bodies, but most of them are tied �
u:c:
fu nds which mean they ca n be used only for a specific purpose only and not as per the demands and z
needs o f t h e PR ls. Close t o a n average, 93% o f t h e fu nds a re tied . Therefore, PRls have become
the w
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instruments for implementation of the Centrally Sponsored Schemes (CSS) and the State
Sponsored Schemes (SSS).
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 LOCAL SELF GOVERNMENT
- THE MUNICIPALITIES
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 constitution through the 74th 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
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j::: (2) In this article, a transitional area, a smaller urban area or a larger urban area means such area as
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0 therein, the revenue generated for local administration, the percentage of employment in non-
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� by public notification for the purposes of this Part.
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1) The cost of Administration in Urbanareas is high.
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4) The Gram Sabha would become nonfunctional as the area has been notified as Nagar Panchayat.
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Also, there is no hierarchy in theMunicipalities as there is in the PRls as each - the Nagar Panchayat, the
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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 V)
Committee shall be a member of that Committee. j:::
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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 members of the Wards Committee, shall be the Chairperson of that Committee. z::>
(5) Nothing in this article shall be deemed to prevent the Legislature of a State from making any �
provision for the Constitution of Committees in addition to the Wards Committees w
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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 I
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the number of seats so reserved shall bear, as nearly as may be, the same proportion to the �w
total number of seats to be filled by direct election in that Municipality as the population of the
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Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears w
to the total population of that area and such seats may be allotted by rotation to different
constituencies in a Municipality. LL
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 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
V) (a)before the expiry of its duration specified in clause ( 1 );
w (b)before the expiration of a period of six months from the date of its dissolution: Provided that
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� less than six months, it shall not be necessary to hold any election under this clause for
0 constituting the Municipality for such period.
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(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration
shall continue only for the remainder of the period for which the dissolved Municipality would leave
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(1) A person shall be disqualified for being chosen as, and for being a member of a Municipality:
z (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
w ground that he is less than twenty five years of age, if he has attained the age, of twenty one
years;
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a:: (2)If any question arises as to whether a member of a Municipality has become subject to any of
w the disqualifications mentioned in clause ( 1 ), the question shall be referred for the decision of
such
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 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; (/)
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(c)provide for making, such grants in aid to the Municipalities from the Consolidated Fund of the State; ::i
and �
(d)provide for constitution of such Funds for crediting all moneys received respectively, by or on behalf 0
of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in z::>
the law. �
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Article 243Y. Finance Commission �
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(l)The Finance Commission constituted under article 243 1 shall also review the financial position of the
Municipalities and make recommendations to the Governor as to- I
(a)the principles which should govern: �zw
(i) the distribution between the State and the Municipalities of the net proceeds of the taxes, duties, z
tolls and fees leviable by the State, which may be divided between them under this Part and the c::
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;
(iii) the grants in aid to the Municipalities from the Consolidated Fund of the State; LL
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(b)the measures needed to improve the financial position of the Municipalities; w
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(c)any other matter referred to the Finance Commission by the Governor in the interests of sound
finance
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(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:
V) Provided that the President may, by public notification, direct that the provisions of this Part shall apply
w to any Union territory or part thereof subject to such exceptions and modifications as he may specify in
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� Article 243-2C. Part not to apply to certain areas.-
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(1)Nothing in this Pan shall apply to the Scheduled Areas referred to in clause ( 1), and the tribal areas
referred to in clause (2), of Article 244.
� (2)Nothing in this Part shall be construed to affect the functions and powers of the Darjeeling Gorkha
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:I: Hill Council constituted under any law for the time being in force for the hill areas of the district
of Darjeeling in the State of West Bengal.
I (3)Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this
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and modifications as may be specified in such law, and no such law shall be deemed to be an
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(1) )There shall be constituted in every State at the district level a District Planning Committee to
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 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. (/)
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(2) The Legislature of a State may, by law, make provision with respect to j:::
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(a)the Composition of the Metropolitan Planning Committees; �
(b)the manner in which the seats in such Committees shall be filled: Provided that not less than 0
two thirds of the members of such Committee shall be elected by, and from amongst, the z::>
elected members of the Municipalities and Chairpersons of the Panchayats in the �
Metropolitan area in proportion to the ratio between the population of the Municipalities and of w
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the Panchayats in that area. I-
(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 I
out the functions assigned to such Committees; �zw
(d)the functions relating to planning and co-ordination for the Metropolitan area which may be z
assigned to such Committees; c::
(e)the manner in which the Chairpersons of such Committees shall be chosen. w
(3) Every Metropolitan Planning Committee shall, in preparing the draft development plan,
(a)have regard to:
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 (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
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State-level ministers appointed Chairperson - Often, the state-level cabinet ministers are
:::i appointed as the chairpersons of the committees. Being a grass root level body, state-level
� politicians dominate over the bodies.
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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 and problems without financial resources decentralization. Therefore, in the absence of
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•
Rural-Urban Integration not Achieved - The rural-urban integration has not been achieved by the
I grass-root level planning bodies, especially at the block level as these blocks consists of small towns
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w with surrounding villages and rural areas.
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� Types of Municipal Government in India
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Different patterns are followed in various states which are as follows:
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Bombay Pattern -
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 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. V)
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o Overcrowding of cities: This migration is leading to the overcrowding of the cities ::i
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 z:>
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supply, etc. are in shortage. �

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o Increasing Slums: This shortage leads to an increase in the number of slums in the city. These �
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slums are used as a vote bank during the elections. I
Increasing health-related problems - The urban administration is facing increasing health-related wz
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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 z
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health services has taken place, meaning more people are going to private clinics rather than w
the government health facilities available to them. Community health is ignored by the
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Increasing Poverty - The kind of conditions the urban poor live in most of the cities is worse than V)
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rural poor. u<(
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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
up to a certain point, and rest in a no vehicle zone. Example Chandni Chowk.
The other way is Congestion levy- A tax on the already congested area for those contributing to the
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 adequatecapacity 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.
V)
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the urban administration.
• Institutional Jungle - There are many parallel bodies operating at the municipal level in the urban
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o Delhi has three Municipal corporations for providing local services.
� o Some powers of local administration are with the Delhi Government.
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Government.
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 LOCAL SELF GOVERN M ENT - RECOMMENDATIONS
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 forms Commission (2nd ARC) has given some recommendations on improving the functions of the local
R bodies. They are as follows:
e • nd
Replacing the word 'may' with 'shall' in article 243 G & 243 W - The 2 ARC has recommended that
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the words 'may' which indicates 'optional', with the word 'shall', which means 'binding'.
nd
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Legislative Council in all states - There should be a legislative council in all states as per the 2 ARC
m recommendation. This is to strengthen the voice of local bodies at the state level. Its members
e should be elected by local bodies to make it an effective federal institution (on the similar lines as
n done for the Rajya Sabha).
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at
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Local Legislators shall not be the members - The local legislators should not be made the members of
io the local bodies-the PRls and the Municipalities.
n •
State Election Commissioner appointment - The State Election Commissioner appointment should
s 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.
P o Task of Delimitation & Reservation should be given to State Election Commission - The task of
a delimitation of the constituency and the reservation of seats for weaker sections should be given
n to the state electioncommission and not the state legislature.
c o National Platform for SEC-ECI Interaction - A platform should be established where the State
h Election Commission (SEC) and the Election Commission of India (ECI) can interact and exchange
a the experience periodically. This way one SEC can learn from other SECs and the ECl's
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experience and follow some best practices.
at
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•
A draft Model law on devolution-Central government should draft a model law on devolution which
R should be framed based on:
aj o Activity Mapping: Framing the broad policy or the programme framework, which is suitable to
In the respective state as per the state needs and requirements. Meaning unbundling the functions
st of the programme as per the corresponding activities to be performed which is called the activity
it
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map. This would provide which activity has to be performed by which level of government -
io either the state government or the local government, etc.
n o Principle of Subsidiarity: Once the activity map has been prepared, assigning those activities
s to which level of government can be decided based upon-
(P ► Homogeneity vs Heterogeneity: If the programme has to be implemented uniformly
Rl (homogenously) across the district then the responsibility should be in the hand of the District
s) collector. If the programme is to be implemented heterogeneously then it should be in the hand
T of Gram Panchayats.
h ► Economies of Scale: The scale of the scheme is seen-depending upon economies of scale the
e scheme must be implemented either by the top-level government or the government at the
level below it.
S ► Externalities: If Complete freedom is given to the bottom level of government i.e., Gram
e Panchayat, and it leads to negative or adverse externalities in the neighbouring villages, then
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 considering such externalities, the task of implementation should be given to the top-level rather
than the bottom level.
• Assembly electoral rolls to be used for local elections - As a lot of discrepancies have been fo und in
the electora l rolls ofthe local bodies' elections, it has been advised by the 2nd ARC to use the assembly
electora l rol l s for the same.
• Rotation after two terms - The rotation for the reserved seats for the weaker section should be done z
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after two terms instead ofthe one-term rotation currently followed . vi
(/)
• State Finance Commission (SFC) Report and Action Taken Report (ATR) to be submitted within 6 �
months - The SFC report and the ATR should be submitted within 6 months from the date from which :l:
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the SFC submitted its report to the government and make this as a mandatory provision.
• Standing Committee of Legislative Assembly on Local Bodies -A dedicated standing committee of u
(/)
the legislative assembly of the state should be there, dealing with the loca l bodies. It should investigate :l:
how the loca l bodies perform, addressing the grievances of the local bodies, etc. Annual Reports 0
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should be presented by the committee which should become the base fo r further decentralization in LL
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the cou ntry.
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• Separate Local bodies ombudsman - S i m i l a r to the position of the Lokpal a nd Lokayu kta at the >
centra l
a nd the state level res pectively, ombudsma n fo r the local level too s ha l l be appoi nted . It shoul d be
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empowered to deal with the complaints and grievances of corruption against both the elected and �
appointed fu nctionaries ofthe local bodies. Cl
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• Vertical Approval of Budget to be discontinued - The budget of the local bodies should not be su Cl
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to approva l by the next higher tier of local bodies and the state government. As the state government is I
n ot s u bject to the approva l of the centra l govern ment, the same shoul d be the case with the local LLI
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bodies as wel l . (/)

• Abolish Parastatals and Programmes like MPLADS - The parastata l bodies which work paral lelly
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with already existing loca l bodies such as District Rural Development Agency (DRDA) , District Urban
Development Agency (DU DA) should be abolished. Also, the paral lel program mes which overlap with
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the responsibilities of loca l bodies such as MP LADs and M LALADs should be abolished. z
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• The state government should not have power to: :l:
o Suspend resolution of Loca l Bodies u
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o Suspend/Remove individ ual members c:::
o Su persede (prematu re dissol ution) the PRls.
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• Local Bodies should recruit their own personnel and determine their condition of service - As the z
centra l and state govern ment ca n recru it their own personnel , the loca l bodies too, on s i m i l a r l i nes be �w
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allowed to recruit their own personnel and also determine their condition of service. w
As such in India we ca n have 3 systems which can be implemented for staff recruitment: C)
o Integrated - This is the existing system, where the loca l bodies appointees are the state LL
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government appointee. These appointees owe their responsibility to the state. Hence, they are the (/)

common staff th at works u nder the state government and local bodies as wel l .
o Unified - Some states h ave a u nified system . F o r exa m ple, t h e state o f Rajastha n has a cad re ca u�
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 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 2nd ARC recommended, that local bodies recruitment should be a separate cadre
and separate service.

(Note: The above recommendations are common for both the Rural local bodies and Urban local bodies.
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Recommendations for Urban Local Bodies (ULBs)
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Set up the 2nd National Commission on Urbanization - The 2nd ARC recommended to set up a
� second National Commission on Urbanization to give a clear picture of the new facts and figures
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Four-tier Municipal Set-up - The 2nd ARC has recommended the four-tier of municipal setup. This was
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0:: o It is recommended to set up Area Sabha (analogous to Gram Sabha in rural areas). An area can be
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0:: o The area Sabha members would elect, amongstthemselves, the Area Committee. Area
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o The chairpersons of each area committee should be the ex-officio members of the Ward
Committee. Ward Committee provision is already mentioned in the part IX-A of the constitution.
ti; o Over the top, the Municipal Corporation should exist.
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Mayor to be elected directly - The Mayor should be a directly elected representative and should
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<( having its own mayor-cabinet.
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Representation to non-residents stakeholders - The non-resident's stakeholder (residing in one
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J: working area) should be given representation in the local municipality so that their voice too can be
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Local Body Finances and Union Finance Commission
C The Union Finance Commission (UFC) has been recommending on improving the finances of the local
bodies, both at the urban and rural level.
z Improvement of local body finances has been a term of reference (ToR) of the UFC since the Xlth Finance
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Rs. 87,5 19 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 PRls 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 14 th Finance Commission �
by the states are as follows: �
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Local Body grants should be part of the divisible pool - The states recommended to the FC that 0
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local bodies should be given the grants from the divisible pool of the centre. Some states demanded c:::
as much as 5%. This would be beneficial for local bodies because, as the centre's revenue would 0
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Fourteenth Finance Commission Recommendations: c:::
After all the consultations, the 14th finance Commission came up with the following recommendations: !ii
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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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BASIC G RANTS 90% 80% (/)

PERFORMANCE G RANTS 10% 20% 0z

They recommended the usage of these basic grants in the provision and improvement of the basic
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Accounts Submission - Fully audited accounts to be shown and submitted for not earlier than 0
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Show an increase in own revenue collected over the previous year.
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Service level benchmark - Indicating services to be provided to the citizens annually. 1-
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Trust-based Approach - The 14th Finance Commission recommended that the local bodies and z
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O The Union Finance Commission before giving its recommendations also consulted the SFCs to give
C its proposals. These proposals were:
A •
National Platform for Interaction between SFCs - There should be a national coordination platform,
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on which regularly, all the SFCs should meet and interact. This interaction would result in the
S exchange of views, ideas and experience and would be a mutually beneficial exercise.
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Simplification of Account formats - As accounting itself is technical in nature, a difficult format of
L accounting leads to delays. So, the SFCs suggested simplifications of the accounting format.
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XIV Finance Commission Recommendations
G The recommendations of the 14th Finance Commission are as follows:
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Strengthen the SFCs through -
E a Timely constitution of the SFCs
R o Providing proper administrative support
N o Providing adequate resources
o Timely submission of the report of SFCs along with the action taken report to the respective
M legislative assembly.
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N Recommendations with respect to Accounts and Audits
T Accounts are important because with the help of proper accounts one can ascertain the financial status. It
also helps to unearth the financial scams and financial mismatches with the help of auditing of the
- accounts. Importance of Accounts -
R a) Key to financial accountability.
E b) Helps in the realistic financial assessment.
C Maintenance of Accounts and entrusting technical guidance and supervision over local bodies to CAG was
O two of the conditionalities that the state must fulfil to avail Performance grant (as mentioned by the 13 th
M Finance Commission). Almost 26 states had fulfilled this condition (as found by the 14 th Finance
M Commission).
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D XIV Finance Commission Recommendations
A •
Continue with the technical guidance of CAG - The 14th Finance Commission recommended
T continuing with the technical guidance of the CAG to the local bodies as suggested by the 13 th FC as
I well.
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Comprehensive preparation of Accounts - The accounts should be comprehensive, accounting for
N all the revenue and the expenditure.
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XIV FC recommendations on Local Bodies taxes
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Property Taxes - If the property tax is effectively implemented then it can become the mainstay of
F the local body taxes, hence, their revenue.

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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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area of the property), in addition to other factors like quality of services, the quantum of services,
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• Vacant Land tax - The 14th FC suggested to tax the vacant land area or vacant plots to keep that 0z
land vacant.Most of the state's governments are not levying this tax.
• Betterment Tax - Any public improvement being done by the government which leads to an 0
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appreciation in the price of the asset, on this increased price, a tax should be levied, which is called �
as Betterment tax. �
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• Advertisement Tax - Advertisements on the hoardings, on the walls, public transport, etc. should
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given to local bodies which would be a good source of revenue for the local bodies. It is more c:::
relevant to the urban body. 1-
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enforced on such taxes by the state government. Such exemptions should be compensated by the
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profession tax, which is too less. It was last revised in 1988 to Rs. 2, 500 from Rs. 250 earlier. Therefore,
now this article should be amended to Rs. 12,000 per annum. Along with this amendment, the
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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
constitution in future.
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 ets 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
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n- productive assets to the local bodies and revising such fees regularly.
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Share of Cess or Royalty on minor minerals- The 14th FC found that only a few states share the
x Cess or royalty on minor minerals with the local bodies and the usual full amount is not transferred,
S very often with delays. Mining puts a disproportionate burden on local infrastructure and the
o environment; therefore, the share of such royalty should be shared with those local bodies under
u whose jurisdiction
rc the mining takes place.
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Service charge on government property - As per articles 285 and 289 of the constitution, the
s offices/buildings of the central and state government are exempted from the taxes. But these
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o recommends centre and state to work out and pay some service charges to compensate the
m local bodies instead of the taxes.
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o Article 285. Exemption of property of the Union from State taxation
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The property of the Union shall save in so far as Parliament may by law otherwise provide, be
exempt from all taxes imposed by a State or by any authority within a State.
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Nothing in clause ( 1) shall, until Parliament by law otherwise provides, prevent any authority within a
o State from levying any tax on any property of the Union to which such property was
d immediately before the commencement of this Constitution liable or treated as liable, so long as that
u tax continues to be levied in that State
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t Article 289. Exemption of property and income of a State from Union taxation
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The property and income of a State shall be exempt from Union taxation.
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Nothing in clause ( 1 ) shall prevent the Union from imposing, or authorising the imposition of, any tax
e to such extent, if any, as Parliament may by law provide in respect of a trade or business of any kind
carried on by, or on behalf of, the Government of a State, or any operations connected therewith, or
a any property used or occupied for the purposes of such trade or business, or any income accruing or
s arising 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
e Parliament may by law declare to be incidental to the ordinary functions of government.
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s Article 285 and 289 together are called as Immunity of Instrumentalities.)
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Municipal Bonds - This can be used as a source of additional funds and revenue generation. But the
- 14th FC found that only a few cities (in 10 states) are allowed the exposure of the municipal bonds -
T such as Nagpur, Nashik, Ludhiana, etc. has done it, mostly tier I municipalities. Therefore, it
h recommended that this exposure should not be confined to tier I municipalities but to municipal
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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 z
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• Finance Commission Grants have been �
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increasing: a 1 3 FC - Rs. 87,519 crores 0
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a 14th FC - Rs. 2,87, 536 crores
• Amount disbursed has fallen short of u
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allocation: a Rural Local Bodies -S ta 18% of <{

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• Ministry of Panchayati Raj: It suggested for - 0
a Increasing the PRI grants to rupees ten lakh crores
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• Ministry of Housing and Urban Development Affairs: It suggested for -
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• Environment ministry: It suggested providing for specific air quality improvement grant for Million LU
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• Finance ministry: Timely submission of SFC reports should be a mandatory condition for availing :::
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grants. a Excluded Areas:

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Schedule V exempted from part IX-A.
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Schedule VI 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 local bodies such as municipalities. Hence, they should be given grants as well.
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15th Finance Commission Recommendations
u The award period for the 15th FC is 202 1 to 2026. It came out with an interim report for the period of
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< All states that have not set up SFC must do so and submit it by March 2024, failing which subsequent
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Grants- the grants have been divided into five
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(The total quantum of grants for the above five is Rs. 4,36,361 crores, which is fixed, spread over the
C five year award period.)
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� i) Rural Local Bodies- Grant of Rs. 2,36,805 crores which shall cover the excluded areas as
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w o Not less than 70% and not more than 85% for Gram Panchayats
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f o Not less than 5% and not more than 150/o for Zila Panchayats.
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c:: The division of these grants shall be: -
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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:

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Online availability of Provisional accounts of the previous year and fully audited accounts of the year
before the previous year.
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The state government has to notify floor rates of property tax. z
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Municipalities should be able to show an increase in their own property tax collection at least equal 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).
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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) 0 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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o +rom government grants. what sources the Panchayats can look out +or +inancing developmental
c projects ? (Answer in 250 words)
(2018)
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