All Themes Atish Mathur 2022 PDF

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MAINS CRASH
COURSE
Polity: Theme 1
Indian Constitution—Historical
Underpinnings, Evolution,
Features, Amendments,
Significant Provisions and Basic
Structure
Atish Mathur
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POLITY THEMES
S. NO. THEME
1 Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments,
Significant Provisions and Basic Structure
2 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.
3 Separation of powers between various organs, Dispute Redressal Mechanisms and
Institutions
4 Comparison of the Indian Constitutional scheme with that of other countries
5 Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers

& Privileges and Issues Arising out of these.
6 Structure, Organization and Functioning of the Executive and the Judiciary—Ministries

and
Departments of the Government
7 Salient features of the Representation of People’s Act
8 Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of

various Constitutional Bodies
9 Statutory, Regulatory and various Quasi-judicial Bodies
e-mail: contact@atishmathur.com www.atishmathur.com telegram: https://t.me/csepaper2atish

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PREVIOUS YEARS’ QUESTIONS
Year Ques Context

2013 Discuss Section 66A of IT Act, with reference to its alleged Shreya Singhal Case
violation of Article 19 of the Constitution. (10/150) filed
2013 The Supreme Court of India keeps a check on arbitrary Theory
power of the Parliament in amending the Constitution.
Discuss critically. (10/150)
2014 What do understand by the concept “freedom of speech Censor-board issues
and expression”? Does it cover hate speech also? Why do
the films in India stand on a slightly different plane from
other forms of expression? Discuss. (12.5/200)
2015 Discuss the possible factors that inhibit India from enacting Case of Triple Talaq abuse
for its citizen a uniform civil code as provided for in the
Directive Principles of State Policy. (12.5/200)
2015 Does the right to clean environment entail legal regulation SC banned crackers
on burning crackers during Diwali? Discus in the light of during Diwali
Article 21 of Indian Constitution and judgements of the apex
in this regard. (12.5/200)
2016 Discuss each adjective attached to the word ‘Republic’ in Overall CA linkage
the ‘Preamble’. Are they defendable in the present (nothing specific)
circumstances? (12.5/200)
2016 What was held in the Coelho case? In this context, can you Theory
say that judicial review is of key importance amongst the
basic features of the Constitution? (12.5/200)
2017 Examine the scope of Fundamental Rights in the light of the Latest CA
latest judgement of the Supreme Court on Right to Privacy.
(15/250)
2019 What can France learn from the Indian Constitution’s Latest CA
approach to secularism? (10/150)
2019 GS : Parliament’s Power to amend the Constitution is a Theory

limited power and it cannot be enlarged into absolute
power. In light of this statement explain whether
Parliament under Article 368 of the Constitution can destroy
the Basic Structure of the Constitution by expanding it’s
amending power. (15/250)

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Polity Mains Syllabus 1: Topics
 Indian Constitution
 Historical Underpinnings: GoI 1935 Impact (Handout)
 Evolution: FR, FR + DPSP, FD
 Features: Usually asked in context of Centre State, Judiciary (done later)
 Amendments: No major recent amendment, Landmark covered in Evolution
 Significant Provisions: 14, 19, 21: Issues and Impact
 Media: Press, Social Media, Movies: Censorship (Slides)
 Protest and Hate Speech (Slides)
 Internet: Access & Medium (Slides)
 LGBTQIA: Homosexuality + Transgender Rights (Slides)
 Basic Structure: Review, Analysis (Slides)
 Miscellaneous Topics in Handouts:

 Preamble
 Meaning of Words & Utility

 Reforms to Fundamental Duties
 Detailed Relationship between FRs and DPSPs
Focal Areas
 Art 368 Basic Structure

 Consolidated notes on Art 368, Art 19, Art 21 & related developments
 Thematic Issues arising out of Part III, IV, and IV-A
 Important Constitutional Amendments (Landmark and Recent)

 Key Words of the Preamble

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ARTICLE 368
What is it? -> Evolution-> Current Status-> Implications-> Is the evolution justified?
INTRODUCTION- WHAT IS ARTICLE 368?

▪ Confers constituent power to the Parliament
▪ Constituent power refers to the power to amend the Constitution
▪ Constitutional Amendments under Art. 368 (Flowchart can be made)
▪ Can only be introduced in Central Legislatures (Unitary form of Federalism)
▪ Require 2/3rds Special Majority to be passed in LS + RS in a way that the 2/3rds is more
than the total strength of the house
▪ Must be passed by more than half of State Legislatures (Incl UTs with Legislatures) via
simple majority
▪ Cannot be returned or rejected by the President
▪ Used to amend substantive parts of the Constitution primarily affecting Federalism namely
▪ Presidential Election (54,55)
▪ Legislative and Executive powers of the Union & States
▪ Judiciary
HOW HAS IT EVOLVED OVER TIME?

▪ Evolution of Art 368 is correlated to the evolution of amenability of Fundamental Rights and
the relationship between Fundamental Rights and Directive Principles
▪ Evolved through a series of Constitutional Amendments and landmark SC judgements
ultimately giving birth to the doctrine of Basic Structure which set the course for expansive
Judicial Review and Activism as they were a part of the doctrine of Basic Structure.
Article 368
FR Amendability Relationship
[13(2)] b/w FR and
DPSP

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INSIGHTS & CONTEXT

▪ Art 13(2) invalidates any law that attempts to violate any Fundamental Right while Art 368
empowers the Parliament to amend the Constitution
▪ To address the inequalities of land ownership, nation-wide land reform acts were enacted
indifferent states (land is a State Subject) to enforce upper limits of land holding in excess of
which would be compulsorily purchased by the State.
▪ This was construed an attack on an erstwhile fundamental right to Property and other rights
such as Equality and Expression by the landowners. This led to multiple petition filed across
the country challenging respective state land reform laws.
▪ The Parliament enacted the 1st Constitution Amendment Act, 1951 within one year of the new
constitution in force adding Schedule 11 which prohibited Judicial Review of any law placed
under it. Several state laws were also added to Schedule 11.
▪ Most of the landmark judgements arose out of landowners seeking their land rights which
were restricted by laws placed under constitutional protection from Judicial review.
▪ Land reforms can be said to be starting point of it all as most of the amenability of
fundamental rights originated from there which in turn impacted Art. 368.

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KEY MILESTONES
▪ Shankari Prasad v. Union of India (5 judge Bench) (1951): 1 CA, 1951 challenged, SC held that
the Parliament enjoys absolute constituent power to amend the any part of the Constitution
including fundamental rights as constitutional amendments were not considered ‘law’ as the
restrictions under Art. 13(2). Constitutional scheme gave demarcation between ordinary law
(exercise of legislative power) and constitutional law (exercise of constituent power)
▪ Sajjan Singh v. State of Rajasthan (5 judge Bench: unanimous): 17 CA, 1964 challenged,
Procedure to amend the Constitution was challenged, but similar outcome as that of Shankari
Prasad’s case. However, doubts were raised on whether law includes constitutional
amendment or not.
▪ Golak Nath v. State of Punjab (1967): (11 judge bench. 6:5) 1, 4, 17 CA Challenged, In a complete
reversal, the SC held that the Parliament does not have absolute power and no fundamental
right can be amended. It also categorically said that constitutional amendments were to be
considered ‘law’ as the restrictions under Art. 13(2). Would only be applicable to subsequent
amendments (American Doctrine of prospective ruling)
▪ Kesavananda Bharti v. State of Kerala (1973) (13 Judge Bench) (7:6) :
• Kesavananda Bharti is unique in the history of international constitutional law :
 Anxious Political Circumstances
 Shift in the balance of democratic power it caused
 Unprecedented number of separate opinions delivered by the court
 Sheer length of the judgement itself (800 pages, 420,000 words long) - 11
separate opinions were issued, thereby no actual clear indication, first time in
history, judges gave a summary of their decision (4 judges refused to sign that
summary)
 The Basic Structure Doctrine is the pinnacle of Judicial Creativity
• The government passed a series of constitutional amendments (24, 25, and 29th) trying
to reverse Golak Nath’s judgement.
• The largest ever bench of the SC in India history delivered a balancing act judgment by
 24 CA 1971: Nullified Golak Nath : CA not Law under Art.13 : Upheld as valid
 25 CA 1971: 39(b) (c) > 14, 19, 31 : Upheld as valid
 29 CA 1971: Added two land reforms statutes to the 9th Schedule : Upheld as
valid
• Overruled Golak Nath which said that FR could not be nullified or taken away by the
Parliament.
• There was no implied limitation on Parliament’s Power to amend Art. 368, however

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 Declaring that the Parliament can amend anything in the Constitution as long
as it does not violate the Doctrine of Basic Structure (Teleological Approach)
 Doctrine of Basic Structure (Originally, a German Idea) would be a series of

principles that would be identified by the SC from time to time
 Additions made to the IXth schedule, and all CAs passed in the future, post the
judgment would also be subject to judicial review
▪ Minerva Mills v. Union of India (1980) :

Textile Mill in Bangalore which was nationalized in 1970s, and the same was challenged by the
owners in 1977
 42 CA, 1976 challenged
 42 CA:
▪ Added FD: Upheld
▪ Made DPSPs superior to any other part of the Constitution : Only if JR is
allowed (art 31C)
▪ Added Secular, Socialist to the Preamble : Upheld
▪ Amended Art 368 by nullifying Kesavananda Bharti : Overruled
▪ No amendment, regardless of when it is enacted, would be question by
a court
▪ No limitation on the powers of the Parliament to amend the
Constitution
 Minerva is the last case in which the government made a concerted effort to establish
parliamentary supremacy over the Constitution
 Marks the beginning of judicial supremacy of sorts, with SC entrenched as the
final arbitrator of constitutional interpretation in India
 Arguably, as significant as Kesavananda Bharti Case.
ART 368’S CURRENT STATUS

Parliament can amend anything in the Constitution if it does not violate Basic Structure.
IMPLICATIONS OF ART 368’S CURRENT STATUS

▪ 104 Constitutional Amendments in less than 75 years of becoming a nation and 70 years of
enforcing the Constitution
▪ Expansive Judicial Review as it is a part of Basic Structure
▪ Striking down of 99 CA (NJAC) which would have fundamental altered Judicial
Appointments in the country

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▪ 103 CA (2019) on EWS reservation currently challenged (Youth For Equality v. Union of
India)
▪ Art 370 Abrogation Challenged (Manohar Lal Sharma v. Union of India)
▪ Constitutionality of Art 35 A (We the Citizens v. Union of India)
KESAVANANDA AND EMERGENCY

 1973: 3 judges who gave an adverse judgement against the Govt, including the next senior
most judge, one of whom were to become the next CJI, were superseded, Justice A.N. Ray
who ruled in favor was appointed as CJI
 1975: Post Allahabad HC judgement on Indira Gandhi’s election in 1975, SC stayed the matter,
and Emergency was imposed; 39 CA. 1975 was passed, and was challenged, the first time, a
CA was challenged not on the grounds of property or social welfare but an electoral law.
 Basic Structure was applied : free and fair elections, rule of law
 39 CA was struck down, but not retrospectively.
 1975: Justice A.N. Ray : Set up a 13 bench to review Kesavananda during the Emergency but
was dissolved after 2 days. Little information is available as press was restricted during the
Emergency.
CRITICAL VIEW- BASIC STRUCTURE

Positive Impacts
 SC was the unmatched authority when it came to Constitutional Matters

 Firmly, established Judicial Review
 Judges wanted a win-win for Parliament and the SC
 Protected the Indian State as well as our South Asian Counterparts from totalitarian, military,
or other extra constitutional interventions.
Points of debate
 No mention in the Constitution
 Lengthy
 Lack of consensus

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ANALYSIS AND FUTURE OF BASIC STRUCTURE DOCTRINE

 If one had to choose between the Legislature and the Judiciary, as the custodian of the
Constitution, it would most likely be the latter
 Does violate traditional notions of Judicial Review
 Was a rescue operation by the Judiciary of the Indian Democracy
 Minimum 13 judges would be required to reconsider Kesavananda Bharti case

 By its very nature, Basic Structure Doctrine cannot be overruled by a legitimate exercise of
power, the only other means would be through extra constitutional methods, both of which
are very unlikely
IS THE EVOLUTION OF ART 368 JUSTIFIED?

(Conclusion)
 The foundation of Constitutionalism is the creation of State limited by the Constitution.
 It the Parliament is bestowed with unlimited powers to amend the Constitution; it would
defeat the purpose of having a Constitution in the first place.
 Governments have been known to enact questionable constitutional amendments to suit
ulterior motives especially during the Emergency Era (42 CA, 1976).
 Absolute power corrupts absolutely.
 However, the SC must also respect the democratic mandate duly attained by the Government
and collective morality in the interest of the people must always prevail.

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ARTICLE 19
Introduction-> Significance-> Judgements-> Reasonable Restrictions on freedom of speech &
expression (in light of current affairs)
INTRODUCTION
▪ “Democracy is based essentially on free debate and open discussion, for that is the only
corrective of government action in a democratic set up. If democracy means government of the
people by the people, it is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his rights of making a
choice, free & general discussion of public matters is absolutely essential.” – Justice Bhagwati
in Maneka Gandhi v. Union of India, 1978
▪ Under Article 19 of the Indian Constitution, all citizens shall have the Fundamental Right:
▪ to freedom of speech and expression
▪ to assemble peaceably and without arms
▪ to form associations or unions
▪ to move freely throughout the territory of India

▪ to reside and settle in any part of the territory of India
▪ to practice any profession, or to carry on any occupation, trade or business
▪ This was expanded to include the right to receive and disseminate information in.
▪ International conventions including the Universal Declaration of Human Rights, European
convention on Human Rights and fundamental freedoms, and International Covenant on Civil
and Political Rights also guarantee freedom of speech and expression and its protection.
RESTRICTIONS ON FREEDOM- REASONABLE OR UNREASONABLE
1. Sovereignty and integrity of the country. 5. Decency or morality.

2. Friendly relations with foreign countries. 6. Defamation.
3. Public order. 7. Contempt of court.
4. Security of the State. 8. Incitement to an Offence

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SIGNIFICANCE OF FREEDOM OF SPEECH AND EXPRESSION

1. In a democracy, the freedom of speech and expression is one of the prime liberties granted
to the citizens. It forms a foundation for other rights granted to citizens, such as the freedom
of the press. Freedom of the press, in turn, helps in inculcating a better-informed public and
electorate.
2. It ensures that citizens can express their opinions freely and also hold their political leaders
accountable. Also, this freedom ensures that important information is legally shared and
circulated among citizens.
3. It also provides a platform to make the marginalized and minority voices heard. Issues that
concern these groups can be highlighted and brought to the forefront by using the right to
freedom of speech and expression.
4. The freedom of speech and expression protects the creative license of artists and allows them
to develop and share ideas freely. These can be academic writings, satirical work, theatre,
cartoons, visual arts, and stand-up comedies
FACETS OF FREE SPEECH

• Freedom of press
– The freedom of speech and expression as under Article 19 also includes the freedom
of the press. During the Constituent Assembly Debates, Damodar S. Seth argued that
freedom of the press should be explicitly included in the Article due to the present age
where the press holds immense value. However, it was decided that a separate
provision for the same is not required.
• Right to Silence
– The citizens’ right to stay silent has also been considered a part of the right to freedom
of speech and expression. In the case of Bijoe Emmanuel & Ors. v. the State of Kerala,
the court upheld the petitioner’s right to stay silent during the national anthem.
• Right to report and broadcast
– Under the freedom of speech and expression, citizens possess the right to circulate
and publish content. It also includes the right to broadcast information. They also have
the right to report proceedings of a court of law, this also ensures transparency.
• The right to be informed
– A citizen’s right to know, receive, and impart information as a part of their right to
information has also been recognized as a part of the freedom of speech and
expression. In the judgment of the Union of India v. the Association of Democratic
Reforms, the court held that the voters’ have the right to know about candidates.
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IMPORTANT JUDGEMENTS: LANDMARK

 In Romesh Thappar v State of Madras, 1950 the Supreme Court held that the freedom of
speech and expression includes freedom to propagate ideas which is ensured by freedom of
circulation of a publication. Moreover, freedom of speech and of Press was declared to be the
foundation of all democratic organisations.
 In Sakal Papers v. Union of India (1962) Article 19(1)(a) affords protection to the freedom of
speech and expression, and not effective or meaningful exercise of the freedom of speech
and expression
 The cases of Bennet and Coleman & Co. v. Union of India, 1973 and Indian Express Newspapers
(Bombay) P. Ltd v. Union of India, 1986 extended freedom of expression to corporations and
the SC declared that limitations on the right outside the purview of Article 19(2) are not valid.
 In Maneka Gandhi v. Union of India, 1978 the SC ruled that freedom of speech and expression
was not limited by geographical limitations or boundaries and claimed that Article 19(1)(a)
encompasses both the right to speak and the freedom to express in India and also abroad.
IMPORTANT JUDGEMENTS: CONTEMPORARY

 In People’s Union for Civil Liberties (PUCL) v. Union of India, 1997 the SC declared that
telephone tapping, violates Article 19(1)(a) unless it comes within the grounds of reasonable
restrictions under Article 19(2).
 The Supreme Court in the case of Union of India v. Assn. for Democratic Reforms, 2002 observed
that one-sided facts, disinformation, misinformation, and non-information all lead to
democracy is a farce.”
 The Supreme Court introduced a new dimension to freedom of speech and expression
in Rakeysh Omprakash Mehra & Anr. v. Govt. of NCT of Delhi, 2013 (197) DLT 413: That our written
Constitution guarantees not only freedom of speech but also freedom after speech
 Shreya Singhal v. Union of India, the Supreme Court struck down Section 66-A of the
Information Technology Act, 2000 on the ground that it gave unfettered discretion to the
executive, in the absence of an elaborate definition of the words used in the provision, to
initiate criminal prosecution against any person who caused annoyance in an indecent
manner, a vague offense
 In Anuradha Bhasin vs Union of India and Ors, 2020 the SC ruled that freedom to access the
Internet is a fundamental right and is protected under Article 19(1)(a)

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RIGHT TO PROTEST
▪ The Right to Protest is enshrined in the constitution – Article 19(1)(b) assures citizens the right
to assemble peaceably and without arms.
▪ Public order as a reasonable restriction under Article 19(2) was added by the Constitution
(First Amendment) Act, 1951. Public order implies absence of violence and an orderly state of
affairs in which citizens can peacefully pursue their normal avocation of life. It also includes
public safety. However, criticism of the government does not necessarily disturb public order.
▪ A broader interpretation of Article 19 includes the right to freely express opinion on the
conduct of the government. The right to association becomes the right to associate for
political purposes. The right to peaceably assemble also allows political parties and citizenship
bodies such as university-based student groups to question and object to acts of the
government by demonstrations, agitations and public meetings, to launch sustained protest
movements.
▪ Important Judgment: In Ramlila Maidan Incident v. Home Secretary, Union of India & Ors.,
2012, the SC stated, “Citizens have a fundamental right to assembly and peaceful protest
which cannot be taken away by an arbitrary executive or legislative action.”
SEDITION VS. RIGHT TO FREE SPEECH AND EXPRESSION

 Section 124A of the Indian Penal Code penalizes anyone
who by words, either spoken or written or by visible
representation or by otherwise attempts to bring
disaffection, hatred, or contempt against the government
established by law.
 The colonial-era law of sedition has been widely criticized

for serving as a restriction on free speech and expression.
 Even though the explanations to the section make it clear

that only attempts to excite hatred, contempt, or
disaffection lead to sedition and lawful criticism with a view
of obtaining change does not amount to sedition, the law
has been widely abused.
 For an act to amount to sedition, there must be an intention
to cause public disorder or disturbance and hinder public peace.
 The Supreme Court in the case of Kedarnath Singh v. State of Bihar put a limit on the scope of
Section 124A, whereby only the individuals using free speech and expression to incite violence
and disrupt the law can be penalized.

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 In the case of Shreya Singhal v. Union of India, the court emphasized that there has to be a
degree of proximity between the words spoken or expressed and the public disorder that
takes place.
 In reality, there has been a continued trend where charges of sedition have been pressed
against individuals for criticizing the government. Due to this abuse of the law, demands have
been made to abolish the Section to protect the sanctity of free speech and expression.
 Recently in a petition against the sedition case filed against the Senior journalist, Vinod
Dua, Vinod Dua v. Union of India, the Supreme Court upheld his journalistic freedom and said
that every journalist is entitled to protection and the sedition law has to be applied as
provided in the Kedarnath judgment. A BJP leader in Himachal Pradesh had filed an FIR against
Vinod Dua for criticising the Prime Minister and the Union government on his Youtube
channel. The court quashed the FIR.
HATE SPEECH VS. RIGHT TO FREE SPEECH AND EXPRESSION

 In contemporary times, it is often used as a tool to gain popularity. It manifests itself into a
form that creates divisions in society by attempting to belittle specific groups of people based
on their religion, culture, ethnicity, race, gender, sexual orientation, disability, language,
occupation, ideology, appearance, etc.
 It runs contrary to the objective of the fundamental right to free speech and expression that
is to liberate people from all strata of society.
 Hate speech often relies on and perpetuates stereotypes. Hate speech has been seen to be
used post-elections to cause anti-minority incitement and is often related to the politics of
violence and hatred.
 The Constitution of India by law seeks to prevent the delivery of hate speech under the garb
of free speech and expression. It prohibits expressions that can be insulting to others.
 According to Article 51A (h) of the Indian Constitution, citizens must develop scientific
temper, humanism, and the spirit of inquiry and reform. Various criminal laws in India also
penalize hate speech.
 In the case of Dr Das Rao Deshmukh v. Kamal Kishore Nanasaheb Kadam, the appellant sought
votes by using a poster that said: “teach a lesson to Muslims”. The Supreme Court held that
the poster cannot be justified as it threatens to arouse communal feelings and create
disharmony between the communities. It was offensive and went against the secular
structure of the country.

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CONTEMPT OF COURT
▪ Restriction on the freedom of speech and expression can be imposed if it exceeds the
reasonable and fair limit and amounts to contempt of court.
▪ The first Indian statute on the law of contempt, i.e., the Contempt of Courts Act was passed
in 1926. It was later replaced by the Contempt of Courts Act, 1952. The 1952 Act was
subsequently replaced by the Contempt of Courts Act, 1971.
▪ According to the 1971 Act, Contempt of court may be either ‘civil or ‘criminal.’ Civil contempt
is 'wilful disobedience to any judgment/ decree/ direction/ order/ writ or other process of a
court or wilful breach of an undertaking given to a court.’ Criminal contempt includes the
publication (in any form) of any matter or the doing of any other act whatsoever which
scandalises the court or lowers its authority, or prejudices or interferes with courts
proceedings or administration of justice in any manner.
▪ Indian contempt law was amended in 2006 to make “truth” a defence. The qualification
however is that such defence should not cover-up to escape from the consequences of a
deliberate effort to scandalise the court.
▪ However, even after such amendment, a person can be punished for the statement
unless they were made in public interest.
▪ In Het Ram Beniwal v. Raghuveer Singh, 2017 judgment the SC held that the power of
contempt has to be exercised sparingly and in cases when there is a calculated effort to
undermine the judiciary, and not in a routine manner.
FAKE NEWS/ DISINFORMATION

▪ Unfeasibility of content verification has led to growing vulnerability of the unfettered flow of
speech to the peddling of unverified (and false/fake) information.
▪ Fake news or disinformation in India usually takes three forms:
▪ Targeting a minority and spreading false news implicating them in violent activities.
▪ Targeting particular individuals and spreading false news to tarnish their credibility and
reputation.
▪ Spreading fake news about public personalities and their supposed heroics that
increases their standing and influences political outcomes.
▪ Another form of fake news is malicious fake news designed to spread paranoia and mistrust
among people.
▪ Reasons for prevalence:

▪ It is increasingly used as a political tool by parties to influence and polarise opinion.
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▪ Proliferation of technology, cheaper devices and affordable access to internet has

reduced the cost of spreading fake news.
▪ Increased use of private encrypted messaging apps and social media platforms whose
business models thrive on “viral content” and number of views.
▪ Judgment: In Alakh Alok Srivastava v. Union of India, 2020 the SC recognized the problem of
infodemics in India and passed an order asking the state governments to comply with the
directions issued by the Centre to curb the menace of fake news.
Conflation of Free Speech and Curbing Fake News in Legislation
▪ Information Technology Act, 2008 (IT Act) – Contrary to 2011 rules under the Act which
provided immunity to social media platforms as ‘intermediaries’ for inception, transmission
and reception of fake content through their networks, they are now directed to proactively
censor content by the government. This is detrimental to free speech.
▪ Disaster Management Act, 2005 (DMA) – Section 54 of the DMA purports to deal with ‘false
alarm or warning as to disaster or its severity or magnitude, leading to panic’. The offence is
punishable with imprisonment up to 1 year and the imposition of a fine. The provision is
limited to the period of the disaster.
▪ Indian Penal Code (IPC) – Section 505(1)(b) deals with the spreading of false and mischievous
content that results in fear or alarm to public, or to any section of the public whereby any
person may be induced to commit an offence against the state or public tranquility. Its
application to fake news is however dubious as the latter is disguised as real news and more
importantly, its source is often difficult to trace.
▪ Recommendation: the government must consistently invest in increasing voter awareness,
voter literacy, a robust fact-checking environment and critical thinking among the masses.
Social media platforms — through which fake news spreads so rapidly — on their part, should
take up efforts to identify and combat such news.
CENSORSHIP OF CINEMA
Proposed amendments in the Cinematograph Bill, 2021

• the proposed amendments to the Cinematograph Act come two months after the dissolution
of the Film Certification Appellate Tribunal (FCAT) in April 2021 under the Tribunals Reforms
(Rationalisation and Conditions of Service) Ordinance by the union
• the MIB proposes to grant “revisionary powers” to the union government whereby “on
receipt of any reference,” the latter can direct the Central Board of Film Certification (CBFC)
to re-examine a film that has already been approved for public exhibition.
• a film duly passed by the CBFC can be re-censored at the will of the union government.

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• Recalling a film already released in the theatres would adversely affect producers who work
with huge marketing and publicity budgets and are largely dependent on theatrical releases
for revenue generation.
• Bringing in a law that makes producers’ position financially precarious would inevitably
encourage a practice of self-censorship in the film industry.
• the amendment would effectively override the sovereignty of an autonomous body like
the CBFC, and undermine the authority of its advisory committee members, who ironically are
appointed by the union government in the first place
• K M Shankarappa v Union of India case in 2000 : Categorically states that once a film has been
certified in compliance with the Cinematograph Act, there should not be any further
interference, for that would amount to a violation of the doctrine of separation of powers
where the executive cannot override the decision of the judiciary.
• Must also provide a clarification as to who would be authorised to send a “reference” to the
government for recertification
• A lack of clarity could encourage certain vigilante groups to take advantage of the provision
and use it as a way of threatening film-makers for allegedly hurting “religious sentiments.”
NEW IT RULES, 2021

• The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021
• Designed to further empower the state and allow the executive considerable powers to shape
public discourses.
• The state now demands access to all information about the content and origins of every digital
communication, a measure that will weaken the right to privacy
• On the other hand, digital content is now subject to both self-regulation as well as extensive
surveillance and regulation designed to allow substantial control by the executive over
content
• Debates around the IT Act
• How, for instance, should we negotiate the desire to curb hate speech and to
simultaneously ensure freedom of expression?
• How can we build governance systems which are just, equitable, transparent, and do
not leave ordinary citizens at the mercy of both technology as well as the formidable
powers of the state?

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• How do we protect the ordinary citizen from surveillance, even as we recognise that
our lives in the contemporary world are increasingly lived in the digital domain where
we are constantly generating and leaving data footprints in nebulous spaces?
• Does the only solution to curbing the immense power of multinational tech companies
lie in strengthening the powers of the state?
• These questions, legitimate as they are, have animated debates and discussions not just in
India but all over the world. The Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021 announced recently have yet again opened up some of these
debates.
• Companies like Google, Facebook, WhatsApp, Telegram, Koo, Sharechat, and LinkedIn have
shared details with MeitY as per the requirement of the new norms. Twitter sought an
extension of the compliance window and called for a constructive dialogue and a
collaborative approach from the government to safeguard freedom of expression of the
public.
• WhatsApp also filed a case in the Delhi High Court against the government on grounds that
the new rules violated customer privacy.
• The new Intermediary Guidelines and Digital Media Ethics Code have also been challenged by
entities like The Wire, LiveLaw and The Quint.
FEATURES OF THESE RULES

• The IT Rules 2021 aim to empower ordinary users of social media platforms and OTT platforms
with a mechanism for redressal and timely resolution of their grievance with the help of a
Grievance Redressal Officer (GRO) who should be a resident in India. Special emphasis has
been given on the protection of women and children from sexual offences, fake news and
other misuse of the social media
• Identification of the “first originator of the information” would be required in case of an

offence related to sovereignty and integrity of India. A Chief Compliance Officer, a resident
of India, also needs to be appointed and that person shall be responsible for ensuring
compliance with the Act and Rules. A monthly compliance report mentioning the details of
complaints received and action taken on the complaints would be necessary.
• The OTT platforms, online news and digital media entities, on the other hand, would need to
follow a Code of Ethics. OTT platforms would be called as ‘publishers of online curated
content’ under the new rules. They would have to self-classify the content into five categories
based on age and use parental locks for age above 13 or higher. They also need to include age
verification mechanisms for content classified as ‘Adult’.

19
• Three-level grievance redressal mechanism has been mandated. This includes the
appointment of a GRO, self-regulatory bodies registered with the Ministry of Information &
Broadcasting (MIB) to look after the Code of Ethics and a Charter for the self-regulating
bodies formulated by MIB.
MISUSE OF SOCIAL MEDIA

• WhatsApp currently has a user base of 340 million in the country, accounting for the largest
number of subscribers in the world
• Facebook has 290 million, Twitter 17 million, YouTube 265 million and Instagram, 120 million
user base.
• With such a huge population dependent on social media platforms, the tech-giants cannot
choose to ignore the new and emerging challenges like persistent spread of fake news,
rampant abuse of the platforms to share morphed images of women, deep fakes and other
contents that threaten the dignity of women and pose a threat to security.
• Instances of use of abusive language, defamatory contents and hate speech in these
platforms have become very common. The algorithms used by these platforms to optimize
views and advertisements often fail to distinguish between relevant or useful content and
abusive content and fake news, thereby amplifying them in very little or no time.
• The Supreme Court in 2018, in the Tehseen S. Poonawalla v/s Union of India case, directed the
government to curb and stop dissemination of explosive messages and videos on various
social media platforms which have a tendency to incite mob violence and lynching of any kind
TECHNOLOGICAL HURDLES WITH RESPECT TO TRACEABILITY

• Social media companies like WhatsApp have expressed apprehensions about the provisions
in the new rules which require them to identify traceability when required to do so by
authorities. They contend that this could possibly lead to the breaking the of end-to-end
encryption, which in turn can compromise users’ privacy
• The government, on the other hand, has stated that traceability would only be required in
case of “very serious offences” that threaten the sovereignty and integrity of India. Further,
it could also be implemented without breaking the end-to-end encryption. The onus, however,
will lie on the companies to find a technological solution for the same.
• Supplying metadata like phone number of the sender, the time of sending a message, the
device it was sent from and its location, could also trace the origin of a message. Interestingly,
WhatsApp’s new privacy policy itself has a provision of sharing metadata of its users with its
parent company, Facebook, for personalised ads

20
• As per latest reports, the Union government has sent a notice to WhatsApp for withdrawal of
its new privacy policy which has caused a lot of controversy since its inception.
THE FREE SPEECH DEBATE
• The social media giant, Twitter, has raised concerns regarding free speech over the new IT
guidelines. It stated that it would strive to comply with the law but if guided by principles of
transparency and freedom of expression under the rule of law.
• Failure to comply with the rules could lead to the removal of ‘intermediary’ status (a safe
harbour to avoid liability for the content that their users publish) of the companies and could
possibly invite sanction or even punishment under the law.
RIGHT TO INTERNET
• The right to internet access & the right to speak and express oneself over the internet, which
are the positive negative and forms respectively
• Anuradha Bhasin v. Union of India: a negative right to the internet subject to restrictions under
Articles 19(2) and 19(6) has been recognized.
• K.S Puttaswamy v. Union of India: Any restriction to the right to freedom of speech and
expression and the right to practise any profession, or to carry on any occupation, trade or
business over the medium of internet, if imposed by the state, under Article 19 have to pass
muster of the proportionality test which as enumerated.
– A law interfering with fundamental rights must be in pursuance of a legitimate State
aim;
– The justification for rights infringing measures that interfere with or limit the exercise
of fundamental rights and liberties must be based on the existence of a rational
connection between those measures, the situation in fact and the object sought to be
achieved;
– The measures must be necessary to achieve the object and must not infringe rights to
an extent greater than is necessary to fulfil the aim;
– Restrictions must not only serve legitimate purposes; they must also be necessary to
protect them; and
– The State must provide sufficient procedural safeguards.
RIGHT TO INTERNET UNDER A.21

• In its recent judgment in Faheema Shirin v. State of Kerala (2019), the High court has
recognized that mobile phones and internet access through it are part and parcel of the day
to day life

21
• Resolutions adopted by the United Nations Human Rights Council and the General Assembly
which unequivocally point to the fact that how internet access plays a key role in accessing
information and its close link to education and knowledge.
• Technology, is an enabler of rights and not a right in and of itself.
– The meaningful exercise of the right to freedom of speech and expression over the
medium of internet is dependent, invariably and inextricably, upon the access to the
available infrastructure.
– Infrastructure in turn depends upon social and economic factors such as the
distribution of resources; the policies of the State and its intervention in the nature of
regulation of resources.
WAY FORWARD
• Freedom of speech and expression is the basic tenet of any democracy. However, no freedom
is absolute or completely unrestricted.
• The imperative of striking the right balance between fundamental rights and ascertaining the
reasonableness of a restriction has been a constant effort since the adoption of the
Constitution. The debate has now reached the digital world. The on-going tussle between
private, tech giants who own a substantial amount of Big Data, governments desirous of
imposing reasonable restrictions and users worried about issues relating to data privacy and
constraints on freedom of speech and expression, is likely to get more complicated before
optimum solutions can be arrived at.
• The IT Rules 2021 seek to address concerns of the citizens without infringing on their privacy
and personal liberties, while maintaining digital sovereignty at the same time.

22
ARTICLE 21
Significance-> Recent developments that have thrown light on Article 21
INTRODUCTION
Article 21 reads as: “No person shall be deprived of his life and personal liberty except according to a
procedure established by law.”
The right has been held to be the heart of the Constitution, the most organize & progressive provision
of our constitution, the foundation of our laws.
LGBTQIA+
▪ Sexuality refers to choice and preference of sexual partners and personal sexual expression.
It is not limited to one specific action, and can be expressed in outward non-sexual forms, for
example, through clothing and Style.
▪ Gender on the other hand, is a social construction and refers to the conditioned
understanding of how different genders (gendered roles are mostly restricted to masculinity
and femininity) play specific normative roles.
▪ Gay and Lesbian – most basic classification on the basis of same sex-attraction; gay for men,
lesbian for women.
▪ Bisexual & Pansexual – someone who is attracted to people of their gender or other gender
identities is bisexual. It is considered restrictive since only the twin sexualities of men and
women are included. Instead, the term pansexual is used to denote someone who is attracted
to people of all gender identities.
▪ Asexual – someone who experiences little to no sexual attraction
▪ Intersex – individuals born with a combination of biological sex characteristics (including
chromosomes, gonads, sex hormones or genitals) which do not fit the typical definition of
male and female bodies.
▪ Transgender – someone whose gender identity or expression is different from that of their
biological sex. Someone born as a man (with male genitalia) who self-identifies as a woman,
or vice versa is a transgender person.
▪ Non-Binary – someone who experiences a gender identity that is neither exclusively male nor
female or is in between, or beyond both genders. They can be gender fluid (shifting between
male and female), agender (without gender), third gender, or something else entirely.

23
DIFFERENT COUNTRIES ON LGBTQIA+

▪ Netherlands became the first country to legalize same-sex marriage in December 2000 when
the Dutch parliament passed a landmark bill allowing same-sex couples to marry, divorce, and
adopt children.
▪ Mexico allows same-sex marriages in some jurisdictions – Mexico City, Quintana Roo, and
Coahuila.
▪ Going against its earlier position, the United States State Department under the Trump
administration has worked closely with anti-L.G.B.T.Q. organizations and has systematically
opposed the use of words like “gender” in United Nations resolutions.
▪ Same-sex relations are illegal in much of South and Central Asia, including in Bangladesh and
Pakistan. Nepal has enacted some protections against discrimination based on sexual
orientation, and in 2015 a government-appointed panel recommended that lawmakers
legalize same-sex marriage. Bangladesh, India, Nepal, and Pakistan allow people to register
as a third gender in official documents.
LGBTQIA+ IN INDIA
Historical Context
▪ Kinnar, or hijra as the third gender in India have been acknowledged and accepted by the
society. Their presence is noted in ancient texts of Ramayana, Mahabharata, and the Kama
Sutra. They often held important political positions in court, as well as part of the entourage
of kings and queens during the Mughal period,
▪ India also had a more open attitude to homosexuality before the Raj and there is ample
evidence of it in medieval history, mythology and architecture.
▪ Criminalization of homosexuality, as well as the degeneration of the social position of kinnars
can be traced to the British imperial rule. Modelled on the Buggery Act of 1533, Section 377 of
the IPC was introduced in India in 1861, which made sexual activities "against the order of
nature" illegal.
▪ As per section 377 it was a punishable act to have intercourse with any man, woman or animals
against the order of nature – homosexuality and bisexuality were both outlawed.
LEGISLATION AND AFFIRMATION ACTION

Current Indian Law
▪ The Preamble to the Indian Constitution mandates justice -- social, economic, and political
equality of status – for all.

24
▪ The right of equality before law and equal protection under the law is guaranteed in Articles
14 and 21 of the Constitution.
▪ NALSA vs UoI (2014): Transgenders recognised as third gender.
▪ In August 2017, the SC held Privacy as a fundamental right. It also observed that “sexual
orientation is an essential attribute of privacy.”
▪ The 2018 five-judge bench SC Judgment scrapped Section 377 of IPC in a historic unanimous
verdict. It recognized sexual orientation as a natural and inherent biological phenomenon and
decriminalized adult consensual same-sex relationships.
▪ Parliament passed the Transgender Persons (Protection of Rights) Act, 2019
▪ The government published the Draft Transgender Persons (Protection of Rights) Rules, 2020
KEY FEATURES OF TRANSGENDERS ACT, 2019

▪ Definition of transgender – The Bill defines a transgender person as one whose gender does
not match the gender assigned at birth. It includes transmen and trans-women, persons with
intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar
and hijra.
▪ The Act prohibits discrimination against a transgender person in relation to:
▪ Education
▪ Employment
▪ Healthcare
▪ access to, or enjoyment of goods, facilities, opportunities available to the public;

▪ right to movement
▪ right to reside, rent, or otherwise occupy property
▪ opportunity to hold public or private office
▪ access to a government or private establishment
▪ The Act contains special imperatives on behalf of the government to ensure proper health
care facilities, employment and education opportunities for transgenders, and their right to
reside and be included in their households.
▪ The Act states that the relevant government will take measures to ensure the full inclusion
and participation of transgender persons in society. It must also take steps for their rescue
and rehabilitation, vocational training and self-employment, create schemes that are
transgender sensitive, and promote their participation in cultural activities.

25
▪ It calls for the creation of a National Council for Transgender persons (NCT) to advise the
central government as well as monitor the impact of policies, legislation and projects with
respect to transgender persons.
ISSUES WITH THE ACT

▪ The process by which a transgender certificate may be obtained is dubious and cumbersome.
It also gives ultimate authority of issuing certification to the District Magistrate, without any
specific guidelines. It does not recognize the right to self-identify one’s gender.
▪ It does not explicitly define what constitutes discrimination in the context of the transgender
community. It also fails to specify punishment for those who discriminate against transgender
persons.
▪ There is no mention of reservation in education and employment for the transgender
community.
▪ It does not provide any means to improve the conditions related to begging.
▪ It does not mention any punishments for rape or sexual assault of transgender persons.
DRAFT RULES
▪ The centre released Draft Rules for Transgenders which specify the process of application
and the manner of issuing identity certificate will be issued to them.
▪ Some key issues in the rules are problematic:
▪ The role of a clinical psychologist in the process of certification
▪ The mandatory 1-year residence period before application for certification
▪ Purpose for collection and sharing of certain data not specified

▪ Absence of specific welfare measures
RECOMMENDATIONS FOR BETTER TRANSGENDERS’ RIGHTS

▪ The Transgenders Act, 2019 must be amended to make it more rational, inclusive and
effective.
▪ Need for a multipronged approach to deal with issue of prejudice and discrimination
prevalent in society against them. Social sensitization forms the basis of an overhaul in
perception of LGBTQIA+ persons.

26
▪ Initiatives like transgender bands, transgender police officers, and others should be
encouraged as they can help in changing the approach of people /society. Increased visibility
in the mainstream will also result in normalization of relations and higher acceptance.
▪ Need of sensitization of government bodies, especially related to Health, and Law and Order
and increase awareness about the changed position of law among the masses.
▪ Need for a detailed anti-discrimination law that empowers the community.
▪ Indian Parliament should conduct a wide-ranging review of existing legal frameworks, repeal
discriminatory laws, and address other gaps in the law that prevent LGBT persons from fully
exercising their rights.
PRIVACY
▪ While there is no universally accepted and legal definition of privacy, it broadly relates to the
diverse modes by which people, personal information, certain personal property, and
personal decision-making can be made less accessible to others.
▪ It is a Human and Natural Right enjoyed by every human being by virtue of their existence.
▪ It is a Fundamental Right emerging from guarantee of life and personal liberty under Article
21 of the Constitution.
▪ The Right to Privacy is determined on a case-to-case basis due to the dynamic meaning0 of
privacy.

27
INTERNATIONAL LEGAL FRAMEWORK ON PRIVACY

▪ Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognizes
the respect for private and family life, home and communications. Article 8 mandates
protection of personal data and its collection for a specified legitimate purpose.
▪ Around 80 countries in the world have enacted laws regarding privacy including Australia,
Canada, UK, and South Africa. While there is no separate law and the term privacy is not
mentioned in the United States constitution, right to privacy is seen as a part of Fourth
Amendment rights.
EVOLUTION OF PRIVACY AS A FUNDAMENTAL RIGHT

▪ In MP Sharma v. Satish Chandra, 1954 the SC questioned and disagreed to the existence of a
constitutionally protected right to privacy.
▪ In Kharak Singh v. State of Uttar Pradesh, 1962 while the SC invalidated a Police Regulation
for nightly domiciliary visits on the grounds that it constituted “unauthorised intrusion into a
person’s home and a violation of ordered liberty”, it held that the right to privacy was not
guaranteed under Article 21.
▪ Supreme court judgments in 1975 (Gobind v. State of M.P) and 1978 (Smt. Maneka Gandhi v.
Union of India) held that right to privacy should be denied only on account of superior reasons
which allow for infringement of such a right, and that the law and procedure authorising
interference with right of privacy must also be right and just and fair and not arbitrary, fanciful
or oppressive respectively. The 1975 judgment also held that right to privacy should go
through the process of case-by-case development.
▪ The court held in the R.M. Malkani v. State of Maharashtra case, 1972 that telephonic
conversations are private in nature which make phone tapping a violation of privacy.
▪ The Harvinder Kaur v. Harmander Singh, 1983 judgment extended right to privacy to gender
priority wherein private life is protected from public portrayal.
▪ The Right to Privacy Bill, 2011.
▪ Justice AP Shah Committee on Privacy – 2012
▪ In the landmark judgment in case of Justice K.S. Puttaswamy v. Union of India, 2017 the SC
declared Right to Privacy as a fundamental right under Article 21. The court held that privacy
is the constitutional core of human dignity.

28
GOVERNMENT EFFORTS TO STRENGTHEN PRIVACY

▪ Information Technology Act, 2000
▪ The IT Act provides for safeguard against certain breaches in relation to data from
computer systems. It contains provisions to prevent the unauthorized use of
computers, computer systems and data stored therein.
▪ The Act provides for payment of compensation (in civil cases) and punishment
(criminal cases) in case of wrongful disclosure and misuse of personal data and
violation of contractual terms in respect of personal data.
▪ Information Technology (Reasonable Security Practices and Procedures and Sensitive
Personal Data or Information) Rules, 2011
▪ The Rules deal with protection of "Sensitive personal data or information of a person",
including information relating to: passwords; financial information such as bank
account or credit card or debit card or other payment instrument details; physical,
physiological and mental health condition; sexual orientation; medical records and
history; and biometric information.
▪ It provides for rules and guidelines to be followed by corporate bodies while dealing
with personal sensitive data or information of people, disclosure of which is
punishable under section 72A of the IT Act.
JUSTICE B N SRIKRISHNA COMMITTEE REPORT, 2018

▪ The committee was formed in August 2017, after the 2017 SC Judgment.
▪ The report on A Free and Fair Digital Economy highlighted that the relationship between
service provider and the individual must be viewed as a fiduciary relationship, which implies
obligation on part of service provider to deal fairly with personal data and use it only for
authorised purposed.
▪ Its recommendations include creation of Data Protection Authority; restrictions on
processing and collection of data; right to be forgotten; data localization, explicit consent
requirements for sensitive personal data, etc.
▪ The committee recommended amendment of related laws including Information Technology
Act, 2000, the Census Act, 1948, and the Aadhaar Act, 2016 to bolster their data protection
framework.

29
THE PERSONAL DATA PROTECTION BILL, 2019

▪ After deliberations, the Personal Data Protection Bill, 2018 was approved by the Cabinet in
December 2019, and tabled as The Personal Data Protection Bill, 2019 in Lok Sabha. It was
referred to the Standing Committee, and is currently pending in the Lok Sabha.
▪ The Bill provides a framework for safeguarding the privacy of personal data of individuals
(data principals) which is processed by entities (data fiduciaries). Data processing requires
express consent of the data principal except in cases of medical emergency or when the State
provides benefits or services.
▪ The Bill allows exemptions from many of its provisions when the data is processed in the
interest of national security, or for prevention, investigation or prosecution of offences.
▪ Issues with the Bill:
▪ The provision exempting processing of personal data from most provisions of the Bill
for prevention, detection, investigation and prosecution of an offence is too broad.
▪ Mandatory local storage of data may lead to extra costs for the fiduciaries.
▪ Fiduciaries are required to inform the Data Protection Authority of data breach in cases
where the data principal may be affected. The fiduciaries may not do so to protect their
reputation.
▪ Important concerns about internet privacy arise due to social media companies being
required to identify their users with the prescribed aim of combating fake news. This
will lead to massive scale of data transfer to private entities, which violates user privacy
and anonymity, thus defeating the original purpose of data protection.
THE RIGHT TO BE FORGOTTEN
 The right to be forgotten refers to the power or competence of individuals to limit, de-link,
delete, or correct the disclosure of personal information on the internet that is misleading,
embarrassing, irrelevant, or anachronistic.
 In common parlance, the right to be forgotten provides a data principal (as defined in Personal
Data Protection Bill 2019) with the right against the disclosure of an individual's data when the
processing of such personal data has become unlawful or futile
 The Indian Personal Data Protection Bill 2019 ("PDPB") provides for rights of correction and
erasure of personal data wherein the data fiduciary receives a request from a data principal
to correct, update or erase personal data.
 K.S. Puttaswamy v. Union of India : Identified the right to be forgotten as an inherent aspect
of privacy, stating removing unnecessary, irrelevant or incorrect information from the
internet if there is 'no legitimate interest' in such data
30
 The right encompasses certain rights of correction and erasure namely the right to
 correct inaccurate or misleading personal data,
 to complete any incomplete personal data,
 update personal data that is out-of-date, and
 erase personal data which is no longer necessary for the purpose for which it was
processed.

MAINS CRASH
COURSE
POLITY: THEME 2
Federal Structure, Devolution of
powers and finances
Atish Mathur
1
POLITY THEMES
S. No. THEME
Pertaining to the Federal Structure, Devolution of Powers and Finances up to Local
Levels and Challenges Therein.

Institutions

5 Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers
& Privileges and Issues Arising out of these.

and

various Constitutional Bodies

2
Year Question Context

2013 Recent directives from Ministry of Petroleum and Natural Gas are Current Affairs
perceived by the ‘Nagas’ as a threat to override the exceptional status
enjoyed by the State. Discuss in light of Article 371A of the Indian
Constitution. (10/200)
2013 Many State Governments further bifurcate geographical administrative Territory CA
areas like Districts and Talukas for better governance. In light of the
above, can it also be justified that more number of smaller States would
bring in effective governance at State level? Discuss. (10/200)
2013 Constitutional mechanisms to resolve the inter-state water disputes Theory + KN
have failed to address and solve the problems. Is the failure due to water issue
structural or process inadequacy or both? Discuss. (10/200)
2013 Discuss the recommendations of the 13th Finance Commission which Current Affairs
have been a departure from the previous commissions for
strengthening the local government finances.
(10/200)
2014 Though the federal principle is dominant in our Constitution and that Theory
principle is one of its basic features, but it is equally true that federalism
under the Indian Constitution leans in favour of a strong Centre, a
feature that militates against the concept of strong federalism.
(12.5/200)
2015 The concept of cooperative federalism has been increasingly Theory
emphasised in recent years. Highlight the drawbacks in the existing
structure and extent to which cooperative federalism would answer
the shortcomings. (12.5/200)
2015 In the absence of well – educated and organised local level government Edu based
system, Panchayats and Samitis have remained mainly political reservation in
institutions and not effective instrument of governance. Critically Raj
Discuss. (12.5/200)
2016 Discuss the essentials of the 69th Constitutional Amendment Act and Delhi Govt.
anomalies, if any, that have led to recent reported conflicts between issues
the elected representatives and the institution of the Lieutenant
Governor in the administration of Delhi. Do you think that this will give
rise to a new trend in the functioning of the Indian federal politics?
(12.5/200)

3
2016 To what extent is Article 370 of the Indian Constitution, bearing In debate CA
marginal note “temporary provision with respect to the State of
Jammu and Kashmir”, temporary? Discuss the future prospects of this
provision in the context of Indian polity. (12.5/200)
2016 Did the Government of India Act, 1935 lay down a federal constitution? Theory-
Discuss. (12.5/200) overlaps with
Theme 1
2017 “The local self-government system in India has not proved to be Theory
effective instrument of governance”. Critically examine the statement
and give your views to improve the situation. (10/150)
2017 Explain the salient features of the constitution(One Hundred and First CA
Amendment) Act, 2016. Do you think it is efficacious enough ‘to remove
cascading effect of taxes and provide for common national market for
goods and services? (20/250)
2018 Whether the Supreme Court Judgement (July 2018) can settle the CA
political tussle between the Lt. Governor and elected government of
Delhi? Examine. (15/250)
2018 Assess the importance of the Panchayat system in India as a part of Theory
local government. Apart from government grants, what sources the
Panchayats can look out for financing developmental projects? (15/250)
2019 From the resolution of contentious issues regarding distribution of Theory
legislative powers by the courts, ‘Principle of Federal Supremacy’ and
‘Harmonious Construction’ have emerged. Explain. (10/150)
2020 How far do you think cooperation, competition and confrontation have Concept +
shaped the nature of federation in India? Cite some recent examples to examples from
validate your answer (10/150) CA
2020 Indian constitution exhibits centralising tendencies to maintain unity CA
and integrity of the nation. Elucidate in the perspective of the Epidemic
Diseases Act, 1897; The Disaster Management Act, 2005 and recently
passed Farm Acts. (15/250)
2020 The strength sustenance of local institutions in India has shifted from Theory
their formative phase of ‘Functions, Functionaries and Funs’ to the
contemporary stage of ‘Functionality’. Highlight the critical challenges
faced by local institutions in terms of their functionality in recent times.
(15/250)

4
FEDERALISM
INTRODUCTION
 It is a form of government in which the sovereign authority or political power is divided
between the Centre and the States, each of whom are independent in their own sphere.
ESSENTIAL FEATURES
 Dual Polity / Distribution of power: Usually, matters of national importance are entrusted with
the Centre, whereas local matters remain with state.
 Supremacy of the Constitution: Having the powers originate from the constitution ensure no
authority arbitrarily takes over the powers of the other.
 Written Constitution: ensures there is no misunderstanding or disagreements.
 Rigidity of the constitution: A rigid constitution makes amendments very complicated and
tough, thus ensuring that none of the governments can change it unilaterally. And any change
in the constitution stems from both the authorities.
 Authority of the courts: Since federalism is based on division of power between co-ordinate
governments, it is essential to maintain the same and ensure none transgresses into the
domain of other. This has to be done by some independent and impartial authority i.e. The
judiciary. The Judiciary has the final authority to interpret the constitution and sit as an
arbitrator of disputes between Centre and state.
CENTRALISING FEATURES OF INDIAN FEDERALISM

 Emergency provisions
 Integrated judiciary
 Sharing of revenue through FC
 Concurrent list
 Residual powers lie with the Centre
 States not destructible
 Flexibility of the Constitution
 Veto over State Bills
 Appointment of Governor
 Parliament’s authority over State list

5
FEDERAL FEATURES OF CONSTITUTION

 Dual polity (Art 1) (Art 246)
 Supremacy of Constitution (Art 368)
 Written Constitution (Art 368)
 Rigidity of Constitution (Art 368)
 Independent judiciary (Art 131)
ACTS GIVING CENTRE THE POWER TO ISSUE DIRECTIONS TO STATE GOVERNMENTS

(LATEST CA: DURING COVID-19 LOCKDOWN)
 Farm acts have been implemented under the Concurrent list. Therefore, laws will be upheld
even if the States oppose.
 The DMA, enforced during the Covid-19 pandemic, has been enacted under the residual
powers.
 Epidemic Diseases Act: Health is a state subject, but by invoking the provisions under this Act,
advisories and directions of MoH&FW will be enforceable.
DEVIATIONS FROM FEDERAL CHARACTERISTICS/ UNITARY BIAS

 Article 1 mentions India i.e., Bharat as a Union of states and not a federation of states.
 Legislative Relations:
 Article 248 confers residuary power in the Union
 U/a 249 Parliament is empowered to make law with matters enumerated in List II, if
necessary, in national interest.
 Power of Parliament to legislate with respect to any matter in the State List if a
Proclamation of Emergency is in operation u/a 249.
 Parliament can also make laws for the states if two or more states request the
parliament for the same u/a 252.
 Similarly, for giving effect to international agreements, Parliament can make any
legislation (Article 253)
 In case of inconsistency between laws made by Parliament and the state with respect
to concurrent list matters, the laws made by parliament will prevail over law made by
state to the extent of inconsistency (Article 254)

6
 Previous sanction of President is required to introduce certain bills in state legislature

u/a 304
 Financial Relations:
 States largely depend upon the center for financial assistance through grants-in-aid.
Further the taxation power of state is comparatively restricted as compared to the
Union because more important taxes such as income tax, wealth tax , excise duty etc.
are reserved for the Union.
 Executive/ Administrative Relations
 U/a 256,the executive power of every State shall be so exercised as to ensure
compliance with the laws made by Parliament
 U/a 257 talks about control of union over states in certain situations , wherein the
Union will have the power to give such directions to a State as may appear to the
Government of India to be necessary for that purpose.
 Article 356 authorizes the President to hold that governance of a state is not being
carried ed out in accordance with the constitution ,if the state fails to comply with
directions of the Union and can impose State emergency.
 Article 312 which speaks about all India Services ensures that the officers of such
service at the state level ensure that Union’s law and policy ae being implemented
properly.
 Parliament’s power to form new states and alter the boundaries of existing sates u/a
3 proves that states do not enjoy territorial integrity and depend upon the sweet will
of the Union.
 Appointment of Governor- Governors are appointed by President and answerable to
him, hence they act in a manner suitable to the center (as they are an agent of center
in the state) even at the cost of the interest of the sates.
 Emergency Provisions: During emergency the normal distribution of power undergoes
drastic change, in favor of center. U/a 356 state legislatures can be dissolved, and
President’s rule can be imposed.
 Freedom of trade and commerce: The provisions of part XIII seek to make India a single
comprehensive economic unit for purpose of trade and commerce under the overall
control of the Union.
 Single and uniform citizenship for the whole of India ,unlike USA where states have
separate citizenship.
 Uniform and integrated Judicial system ▪ Hence India is considered as an
“Indestructible Union of destructible states”

7
SUPREME COURT’S VIEWS

 In Ram Jawaya Kapoor, it held federal principle or doctrine of separation of power is not
incorporated in Indian constitution in strict and rigid form.
 In State of West Bengal V UOI, court said “Indian constitution is not truly federal because
Union enjoys greater power and state are not co-ordinate of the Centre.
 In State of Haryana V UOI, it held that a semi-federal system of government has been adopted
in India.
 Kuldip Nayyar v UOI – though federal principle is dominant and one of the basic features, but
it is true that federalism in India leans towards a strong Centre.
NATURE OF INDIAN CONSTITUTION

 Austin and A.H. Birch used the term “Cooperative federalism’ for Indian system i.e. Neither
purely federal nor purely unitary but combination of both. To ensure cooperation between
the two, strong Centre is there but regional governments are not weak and there is mutual
dependence amongst the two.
 Dicey feels federalism has been watered down in India in order to meet the needs of a country
which has to remain nationally integrated, politically and economically coordinated and
socially uplifted. (Quoted in State of Rajasthan Union of India)
 Dr Ambedkar considers Indian constitution both federal and unitary depending upon situation
and circumstances.
CONCLUSION
 India adopted a federal structure as different parts of the country were at different stages of
development, but we needed a strong Centre to maintain unity and integrity especially
considering the heterogeneity of the population and experience of partition. Indian
federalism is sui generis / of its own kind because of its mode of formation i.e., from Union to
states (Union divided into states) and not vice versa like in case of USA (states came together
to form union)
 The constitution is neither purely federal nor unitary. It is a Union of composite States as
neither the parliament nor the states are sovereign because each of them are limited by the
constitutional provisions affecting the distribution of power.
 Thus, Indian constitution is mainly federal with unique safeguards for enforcing national unity
and growth

8
ASYMENTRICAL FEDERALISM
 It is understood to be the unequal distribution of power amongst the constituting units of a
federation in political, administrative and fiscal spheres. In India, this asymmetry is both
vertical (between centre and states ) and also horizontal (amongst the states )
 Like many federations, India has certain de facto asymmetrical federal features with regard
to differences of size, population, wealth, and influence between the federating units
VERTICAL ASYMMETRY
 It is a settled fact that India is not a true federation because the of the strong unitary
tendencies. The main provisions which point to this asymmetry are –
 In India only the union is indestructible and not the states because they have no
defined territory integrity as is clear from Article 3.
 Creation of Union Territories.
 Emergency provisions.
 States do not have equal say in case of amendments and are asked to ratify law only if
their interest is involved.
 Centre enjoys an overall legislative, administrative and fiscal precedence over the
states in India.
HORIZONTAL ASYMMETRY
A) Among States: Not all states are equal in India and there is difference in order to accommodate
specific local, historical and geographical contexts.
 Unequal representation in Rajya Sabha based on the population of the state.
 Special provisions’ applicable to some States u/a 371 by empowering the Governors to
discharge some special responsibilities, which he does in his discretion.
 Article 371 says the Governor of Maharashtra has a special responsibility to establish separate
development boards for Vidarbha, Marathwada, and the rest of the State, while the Governor
of Gujarat has a similar responsibility towards Saurashtra, Kutch and the rest of Gujarat.
 Under Article 371A no law made by Parliament in relation to Naga customary law and
procedure, including civil and criminal justice matters, and ownership or transfer of land and
resources will apply to Nagaland, unless the Legislative Assembly of Nagaland decides so.
Further, the Governor of Nagaland has a ‘special responsibility’ regarding law and order in the
State.

9
 Article 371B contained a special provision for Assam under which a committee of legislators
from the tribal areas was formed to look after their interest. The tribal areas later became
Meghalaya State.
 Under Article 371C, the Hill Areas of Manipur ought to have a committee of legislators. The
Governor has a special responsibility to make an annual report to the President on the
administration of the Hill Areas. The Centre is empowered to give directions to the State as
far as these areas were concerned.
 The Sixth Schedule to the Constitution contains provisions for the administration of tribal
areas in Assam, Meghalaya, Tripura and Mizoram. These create autonomous districts and
autonomous regions administered by District Councils and Regional Councils. These Councils
can make laws with respect to allotment, occupation and use of land, management of forests,
regulate social customs, marriage and divorce and property issues. e.g., In Assam, the Karbi-
Anglong Autonomous Council, Dima Hasao Autonomous District Council etc. Ladakh has two
autonomous hill development councils (Leh and Kargil). The Darjeeling Gorkha Hill Council is
in West Bengal.
B) Among Union Territories: Union territories are also not equal as –
 Puducherry and Delhi have legislatures, while the other territories under the Centre do not
have legislatures or a ministerial council to advise the administrator.
 Even between Puducherry and Delhi, there is a notable difference as Puducherry has
legislative powers on any matter mentioned in the State List or the Concurrent List, insofar as
it applies to the Union Territory but Delhi cannot make laws on matters of police, land and
public order.
 However, Parliament has overriding powers over any law made by the Assembly in the Union
Territories.
 Puducherry has one more unique feature. Despite being a single administrative unit, the Union
Territory is ‘non-contiguous’. That is, its territory is not limited to one extent of land as it has
enclaves located within other States: Karaikal (Tamil Nadu) Yanam (Andhra Pradesh) and
Mahe (Kerala).
IMPORTANCE OF ASYMMETRIC FEDERALISM IN INDIA

 Ensures unity in diversity as it helps to respects and preserve vulnerable groups through
special powers.
 Satisfy different needs of various federal units which are a result of an ethnic, linguistic or
cultural difference
 Help to protect fundamental rights and compensate for initial inequalities in the social system.

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 Allowance for separate laws to govern different religious groups, and provisions for various
kinds of affirmative action for extremely disadvantaged groups help in ensuring social justice
to them.
 Gives better representation to minority areas in the democracy
COOPERATIVE AND COMPETITIVE FEDERALISM

 Federalism is form of government where there is distribution of power amongst two or more
coordinate authorities who are independent in their sphere.
 Based on the relationship between the central and state government–the concept of
federalism is divided into- Co-operative federalism and Competitive federalism.
In short,
Term Definition Examples

Cooperation (includes Centre = States Schedule VII, NITI Aayog, Zonal
Cooperative federalism) Share a horizontal councils, NDC, COVID-19 Lockdown:
relationship cooperation in solving migrant crisis
and enhancement of testing
facilities
Competition (includes Centre > States Post 1991 LPG reforms: attracting
Competitive federalism) C and S share a vertical FDI & GDP growth rates; More
relationship recent: EoDB, Logistics Index,
S and S share horizontal Swachh Bharat Sarvekshan
relationship
Confrontation Result of Central Historically: Inter-State Water
government Disputes, Sharing of taxes, A.356,
transgressing into the CBI jurisdiction
powers of the State More recent: GST Act, PM-JAY,
government recent farm bills
COOPERATIVE FEDERALISM
 It is a type of federalism wherein the interaction between the constituent authorities is based
on “cooperation” so that they can collectively use their energy and resources to promote and
maximize public welfare and national goals.
 Governments in cooperative federalism share a horizontal relation rather than a hierarchical
one and common policies are promoted not by dictation but by discussions, agreements and
compromise.
 It is an important tool which enables greater participation of state governments in
formulation and implementation of national policies.

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Indian Constitution envisages in the spirit of Cooperative federalism –

 Schedule VII gives the three lists and provides for the center-state cooperation on legislative
matters.
 U/a 263 Interstate council has been provided to resolve any kind of disputes between the
center and the states or amongst states
 Establishment of zonal councils under state reorganization act 1956, as instruments of
intergovernmental consultation and cooperation.
 National Development Council (NDC) is the apex body for decision making and deliberations
on development matters has representation from both the Centre and State. Thereby making
states part of development process
 Interstate water disputes Act and River Boards Act provide means to adjudicate disputes
relating to using and sharing of interstate rivers.
 The 73rd and 74th constitutional amendment introduced Panchayati raj (Rural) and
Municipality (Urban) system to strengthen the roots of cooperative federalism in India
OTHER MEASURES TAKEN IN RECENT PAST

 Abolition of the erstwhile Planning Commission and setting up of NITI Aayog which has made
states a party to the developmental plan and policies of the government.
 Implementation of GST and establishment of GST council
 Increase in the share of divisible tax-pool from 32% to 42% for the states as per
recommendation of 14th Finance Commission.
 The NITI Forum for North East has been constituted and tangible sectoral proposals are being
implemented by the States in partnership with the North East council.
CHALLENGES
 Trust deficit between Centre and States
 Multiparty system
 Regionalism, terrorism, naxalism etc.
 Superior legislative power of the center due to residuary power and legislative precedence
 Wider taxation power to the center etc.

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COMPETITIVE FEDERALISM
 In Competitive federalism there is competition between the Centre and the State and also
amongst the State governments, to get maximum benefits in order to facilitate better
administration and enhances developmental activities.
 Post 1990s economic reform gave ground to the idea of competitive federalism as inequalities
and disparity grew. Today in a free market economy, endowments, funds, investments,
available resources etc. all have fostered a healthy competition where every government is
striving to get the maximum in order to improve physical and social infrastructure within the
state. Competitive federalism follows the concept bottom-up approach as it will bring the
change from the states.
 For e.g. The investors prefer more developed states for investing their money. Union
government devolves funds to the states on the basis of usage of previously allocated funds.
STEPS TAKEN TO FOSTER COMPETITIVE FEDERALISM

 Competitive federalism though is not part of the basic structure of Indian constitution but of
late is being actively encouraged by the Central Government especially NITI Aayog in order to
fasten the development in the states.
 The NITI Aayog will also provide for the appointment of Regional Councils with specific
mandates for specific time period
 The central government enhanced the borrowing limit of state governments from 3 percent
to 5 percent of their gross state domestic product.
 States compete to attract FDI. And positively so, the Centre is not being seen as an obstacle
but as a facilitator. Still, approval for FDIs is centralized with the DPIIT being the nodal Ministry
at the centre for FDI approvals.
 Para-diplomacy by the States - INVEST IN VIBRANT GUJARAT
 Restructuring of centrally sponsored Schemes.
 Financial sector bailout programme under UDAY scheme to state DISCOMs
 Aspirational District Programme and Smart cities Mission.
 It promotes competitive federalism principally through pushing its sectoral indices which are
put out in the public domain. The indices on water, education, health, innovation, export
preparedness, and Sustainable Development Goals (SDGs) have attracted significant positive
attention. State wise Ease of Doing Business ranking to build a huge sense of competition.
 Ranking states on various social indicators - Swachh Bharat Ranking system, School education
quality index, composite water management index. SDG India Index etc.

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SOME EXAMPLES OF STATES MOVING TOWARDS COMPETITIVE FEDERALISM

 Though competitive federalism has not been embraced by all states, however some of them
have jumped the bandwagon by facilitating reforms in terms of ease of doing business
,expediting the pending project clearances ,attracting investments etc. Most of the state now
organizes investors meet to showcase facilities in their state to attract business and
investment. This has led to improvement in business environment in various state.
 Gujarat has amended its land acquisition act to attract more investment.
 Maharashtra has amended the Maharashtra Land Revenue Code, allowing the sale of certain
publicly-owned lands that were previously slated only for leasing.
 The Andhra Pradesh legislature has passed a bill extending land leases from the government
to private entities from 33 years to 99 years.
 Gujarat and Karnataka have passed various reforms in labour laws.
 Uttar Pradesh has approved the Uttar Pradesh Information Technology & Start-Up Policy
2016. To encourage start-up growth, the policy waives taxes on land purchased for office use,
as well as electricity dues for five years.
CHALLENGES
 Despite Centre increasing the States’ share of the divisible pool, the revenue of the states
have come down because of which allocation towards social sector schemes has also reduced.
 It is in a way increasing gap between developed and under developed states.
 Not all states are taking equal part and only richer states like Gujrat ,Maharashtra, Tamil Nadu
etc are competing.
 The present inter-state competition in attracting investment is too early to determine
whether it will really encourage competitive patterns of investment on a continuous basis.
 Since the socio-economic parameters and development of each State in India is different, only
those states who have made substantial progress in terms of employment, literacy and
creating a conducive environment for doing business and investments are actually competing
. other states are mute spectators.
 The states like West Bengal, Bihar, Orissa, and Assam have protested against the uniform
approach in funding because of their special situations in which the central government has
to provide special funds to these states. Without special funding these states cannot imagine
their participation in competitive federalism.
 Though the states are provided with financial independence, not all states would perform
uniformly in the process of development because while some states have favorable factors

14
like skilled labour, capital and infrastructure, innovative service industries other states lagging
behind.
ARE THEY BOTH COMPLEMENTARY? WHAT SHOULD INDIA FOLLOW?

 Though cooperative and competitive federalism seem to be contrary, they are in fact sides of
the same coin as they have the same basic underlying principle – progress of the nation as a
whole. In fact, the NITI Aayog e-book talks of competitive federalism as a force multiplier to
achieve the objective of cooperative federalism.
 Competitiveness is an idea that has stood the test of time and India can only achieve its
ambitious growth targets by enhancing competitiveness at all levels of government.
However, improving competitiveness requires economic and social development, which in
turn requires coordination of our economic and social policies across various levels of
government.
 For example, implementing GST required consensus among states and now, we have the GST
Council, with states as equal members who are part of national fiscal policy.
 Another example is India’s improvement in the World Bank’s Ease of Doing Business Index.
We have been able to jump 65 positions in the rankings only because states brought about
many reforms. This was made possible through the creation of an EoDB Index for Indian
States and the release annual rankings to indicate areas in which they are lagging.
 Another major success story is Aspirational Districts Programme (ADP) which is a programme
with convergence, collaboration and competition as the core tenets. States are the main
drivers behind this programme but are working with central government detect opportunities
for immediate improvement.
 Similarly promoting one Smart City in each state is cooperative federalism but states
encouraged to come up with their own plans for smart cities is competitive federalism.
 In future also agriculture can be reformed in the same way. Though agriculture is state
subject, however we need coordination and consensus-building to unlock the agriculture
market in India. Prime Minister has already established establishing a “high-powered
committee of chief ministers” to recommend reform in Indian agriculture markets.
 The two together will also lead to good governance as there is naming the best performers
and shaming the worst. Since these rankings are in the public domain, the accountability of
both elected officials and administrators has risen, thereby leading to good governance
 Nudge of the competition ensures that states work hard towards reform and improve their
social parameters. But at the same time cooperative federalism provides motivation and the
support to the states to up their game and contribute in nation building.

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WHAT INDIA CAN DO TO IMPROVE?

 Cooperative and competitive federalism are complementary ideas that will drive India’s
growth story in the coming decades. However certain reforms can be done to improve both.
 Centre’s support would be required by some states, like Bihar, Odisha, Jharkhand, NE states
etc to have a meaningful participation in competitive federalism some states are deficit or
backward, hence they should not be treated at par with the well-off states.
 Strong states make strong nation and to realize this vision, it requires a “Team India”
approach to work for India’s development.
 Reconstitution of the Inter State Council recently is a step in the right direction
 State must be given greater autonomy with regards to issues like health, education, land,
labour, natural resources etc.
 States/UTs should be assisted through the help of expert panels to make competitive and
robust policies which are more acceptable and transparent
 On contentious issues like land, labour and natural resources, a sound mechanism should be
developed to resolve issues and promote development
 On issues like international treaties, WTO obligations, or the environment an institutional
mechanism must be evolved where important decisions are appropriately discussed with
states.
 Best practices amongst states should be widely publicized.
CONCLUSION
India needs a mix of both competitive and cooperative federalism or as NITI Aayog calls its
competitive cooperative federalism, to move ahead. In fact, instituting a system of cooperative and
competitive federalism has been a hallmark of India’s policy-making in the past five years and has
achieved considerable results. Competition is required to fight the complacency of cooperation and
cooperation helps to balance out the vigor of competition.
• A diverse and large country like India requires a proper balance between the six pillars of
federalism: autonomy of states, national integration, centralisation, decentralisation
nationalisation, and regionalisation.
• Extreme political centralisation or chaotic political decentralisation can both lead to the
weakening of Indian federalism.
• Controlling these extremes is a challenge, as federalism must reconcile the need for national
unity on the one hand, and on the other, regional autonomy.

16
15TH FINANCE COMMISSION
• Introduction
• Mandate Issues
• Allocation Criteria
• Resources
• Expenditure Issues
INTRODUCTION
• The final report of the Fifteenth Finance Commission is titled “Finance Commission in COVID
Times—Report for 2021–26
• The commission’s term was extended by one year in November 2019 after the bifurcation of
the state of J&K in August 2019
• This was the First Finance Commission of the post-planning commission era
• Second FC to submit two reports
• Key Data Points
• 6 Hindi Belt States (42.85% Population) – 48.57% of shareable pool
• 5 Southern States (21.32 % Population) – 15.87% of shareable pool
• 7 Northern/Eastern/Western States (30.61 % Population) – 25.31.87% of shareable pool
• 8 NE States (sans J&K) (5.32 % Population) – 10.48% of shareable pool
MANDATE ISSUES
• Article 280(4) of the Constitution gives the finance commission absolute independence to
“determine their procedure” and exercise “such powers in the performance of their functions
as Parliament may by law confer on them
• Some clauses of TOR alleged to affect federal fiscal balance
• measurable performance-based incentives for states
• progress made in moving towards replacement rate of population growth,
implementation of flagship schemes, promoting ease of doing business, sanitation,
solid waste management and bringing in behavioural change to end open defecation
• expansion and deepening of tax-net under GST
• control or lack of it in incurring expenditure on populist measures

17
• Larger issues of public financial management on which the commission neither has the
authority nor the expertise, and for which bodies of elected representatives should be the
appropriate fora.
• The term “populism” itself is open to differing interpretations and changing perceptions
ALLOCATION CRITERIA
• As per Article 280(3) of the Constitution, the primary task of a finance com-mission is to
• make recommendations for the horizontal and vertical sharing of the net proceeds of
taxes in the divisible pool between the union and the states
• determine the principles for union government grants-in-aid to the states
• recommending measures to supplement the resources of the local bodies.
• Finance commissions’ recommendations broadly follow three principles:
• Equity - parameters like population and area of a state –
• 10% weightage to the 2011 population to take into account the demographic changes,
including interstate migration, since 1971;
• It changed the population criteria from 1971 Census to 2011 Census, which upset most
states outside the Hindi heartland as it placed them at a disadvantage for successfully
containing heir population growth
• Equalisation - parameters related to the distance of per capita income or fiscal capacity of a
state from the most prosperous one - 50% weightage to income distance, 15% to area, and
7.5% to the forest cover in a state
• Efficiency - parameters such as tax effort and fiscal discipline – NO specific criteria
• 42% after raising it by 10%, while reducing the grants drastically
• 42% reduced to 41% allocating 1% for J&K
RESOURCES
• Recommendation for reducing off budget borrowings and for ensuring the stability of direct
tax rates and thresholds have already been acted upon by the finance minister in the 2021–22
budget
• However, another important recommendation was ignored
 restoration of the revenue neutrality of the GST rates

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 recommended for a rationalised structure of GST by merging the rates of 12% and 18%
slabs and converging into a three-rate structure of a merit rate, a standard rate, and a
demerit rate of around 28%–30%
 The need for reducing the multiplicity of rates that gives rise to endless classification
disputes and for simplifying the GST structure are long overdue, and its in- deed time
the governments act on this.
• Indexing the professional tax, which is levied by 21 states at the 1988 rate with a ceiling of only
`2,500 on income from professions, etc, for the accumulated inflation since then, which will
immediately raise the ceiling to 18,000.
EXPENDITURE ISSUES
• It recommended that health expenditure should constitute more than 8% of their budget by
2022
• public health expenditure of the union and the states together should be increased in a
progressive manner to reach 2.5% of the gross domestic product (GDP) by 2025
• Given that the current healthcare expenditure is less than 1%, the allocation is unlikely to
achieve the target of 2.5% of the GDP by 2025.
• The commission also did not indicate any road map for this, except broadly recommending
increases in allocation by individual states and the union.
• It has, however, correctly noted that centrally sponsored schemes (CSS) such as the National
Health Mission and the Pradhan Mantri Jan Arogya Yojana (PMJAY) account for the major
healthcare expenditure of the union, which are primarily top-driven and need much more
flexibility for the states to “adapt and innovate” to tailor these to their specific needs; besides,
there is also an urgent need to shift the focus from inputs to outputs and outcomes, away
from the current focus on line items and activities
• The commission drew attention to the fact that 15 of the 30 umbrella CSS account for 90% of
the total allocation under CSS.
POLICY IDEAS
• a dedicated non-lapsable modernisation fund for defence and internal security (MFDIS) in the
Public Account of India to bridge the gap between the projected capital requirements and
budgetary allocations for modernisation of defence and state police forces.
• recommended a restructuring of the Fiscal Regulation and Budget Management (FRBM) Acts
of the union and the states after the examination by a high-powered intergovernmental
group.

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• suggested introduction of a system of credit rating of the states

• setting up of an independent, advisory fiscal council with powers to access governmental
records.
SPECIAL CASES- SPECIAL AREAS UTs

• Similar to many federations, India has certain de facto asymmetrical federal features with
regard to differences of size, population, wealth, and influence between the federating units
• Nagaland (Article 371A of the Constitution),
• Sikkim (Article 371F), and Mizoram (Article 371G)
• Jammu and Kashmir (Article 370 of the Constitution abrogated in August 2019)
• Further, the Fifth Schedules of the Constitution comprise numerous distinctive provisions for
administration and protection of Scheduled Areas and Scheduled Tribes in any state
• States of Assam, Meghalaya, Tripura, and Mizoram (Sixth Schedule).
• UTs are administered in accordance with the provision of Articles 239 to 241 of the
Constitution.
• The justification for the creation of separate union territories is due to their small size, far-
flung locations on the coasts, cultural heterogeneity, interstate disputes, particular needs of
National Capital Territory (NCT), different colonial heritage etc.
• In terms of the economic powers of union territories, it needs to be emphasised that all union
territories, except Delhi and Puducherry—which have their own legislative assemblies—have
limited financial powers and lack their own public accounts
• Thus, they do not have their own budgets and, therefore, no powers of taxation
• Rather, their revenues and expenditures are part of the union budget, under the budget head
of the home ministry.
• Delhi and Puducherry have unlimited powers as long as they are generating their own
resources. However, the budget presented by the government of the NCT of Delhi before
being presented to the Delhi legislative assembly needs a prior approval of the President,
exercised by the home minister.
UNION TERRITORY OF PUDUCHERRY

• Puducherry comprises four enclaves of former French India: Puducherry district—formerly
Pondicherry district, and the capital of the union territory—after which it is named; Karaikal
district bounded by Tamil Nadu; Yanam district situated between Andhra Pradesh and the Bay
of Bengal; and Mahé district enclosed by Kerala.

20
• Four-language Formula - The language formula says that Tamil will be the official language for
all or any of official purposes, whereas Malayalam may be used for the official purpose in the
Mahé region, and Telugu in the Yanam region. English has been given the status of a link
language and may be used in all or any of the regions.
• Nomination Powers of Lieutenant Governor - the Supreme Court upheld the induction of the
three BJP members as MLAs in the assembly of the union territory of Puducherry by the centre
unilaterally without consulting the elected local Congress government.
• SC Pending case - Union of India v K. Lakshminarayanan: Whether Lt. Gov is Admin Head of
Puducherry Govt
DELHI
• Delhi owes its distinctive status to its long history and its capital city-state status
• As the capital of the nation, Delhi performs certain unique functions such as aiding the union
government to fulfil its constitutional mandate of maintaining macroeconomic stability and
handling currency, defence, internal security, external relations and diplomatic missions
DELHI DEVELOPMENTS
• 69th Amendment to the Constitution in 1991 that added a new Article 239 AA, which renamed
the union territory of Delhi as the National Capital Territory of Delhi (NCTD) and designated
the lieutenant governor as the administrator with powers to promulgate an ordinance when
the legislative assembly is not in session
• it became neither a “state,” nor even a “half-state.”
• It remained a union territory, but was granted a legislative assembly, like Puducherry
• Government of NCT of Delhi v Union of India 2018:
• Lieutenant governor’s agreement is not necessary for every decision the Delhi
Government makes
• The bone of contention is the “discretionary” nature of reference made by the
lieutenant governor to the President under 239AA (4)
• The lieutenant governor need not, in a mechanical manner, refer every decision of the
ministers to the President.

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LOCAL-SELF GOVERNMENT
HISTORICAL CONTEXT
In the Rigvedic period, i.e., around 1200 B.C. there were Sabha that has the primary function of the
administration of the area. This concept of Sabha gradually converted to the panchayat and it was so
called because it was headed by 5 people
 In the Medieval period, the Panchayati system deteriorated because of the increase in the
Zamindari system in the rural areas.
 With the change in the dynasties ruling India, the concept of Kotwal came with the Mughal
era whose task was to undertake the administration of the area assigned, to collect tax and
other incidental functions.
 In the British era, the Government was not in favor of any decentralization, therefore after
the mutiny of 1857, they came with the Government of India Act, 1858 and removing the
decentralization
 Further in the Montego Chelmsford Reforms that were carried out in 1919, right after the
World War I wherein England was not in a strong position, some autonomy to the provincial
government was given to the provincial government and some powers were given to the
elected representatives.
 There were two separate Lists under the laws, one for the Governor and second for the
elected local representatives.
 Further, under the Government of India Act, 1935 all the powers were taken back because
both the lists that were legislated were repealed and therefore the decentralization was again
withdrawn.
POST-1947
 Panchayati Raj was kept under the heads of Directive Principles of State Policy under Part IV
of the Constitution mainly because of the political instability of the new government and the
paucity of funds and therefore it was not practically possible for the newly formed India
 Balwant Rai Mehta Committee, 1957: this committee mainly it advocated for the basic level of
administration be at the Block level.
 K. Santhanam Committee, 1963: advocated that the Panchayati Raj Institution (PRI) be given
the powers to levy tax and it should become as the main source for the funding of the
institution.
 Ashok Mehta Committee, 1978: This committee suggested that the Panchayati Raj Institute
shall be a two-tier body which should operate at the Zilla level and the Mandal level. The nodal

22
area would be at the Block Level (taken care of by the Block Development Officer) and Zilla
Parishad shall have an advisory role to both, the State Government and to the Block level
institution.
 G.V.K. Rao Committee, 1985: this committee again advocated for a three-tier system. It said
that the PRIs should be at district and local level. The District Development Officer (DDO) shall
be appointed for the main administration of the village units.
 L.M. Sanghvi Committee, 1986: this committee advocated that in order to establish a
governing body for any part of India, it must be given a Constitutional structure. As a result,
73rd Amendment was made to the Constitution and Part IX A was inserted as PANCHAYATS.
BASIC FEATURES
 Established in 1992 by the 73rd and 74th Amendment to the Constitution – the Panchayati Raj
and the Municipality. Features include:
 3 tier system for rural and 2 tier system for urban
 Minimum age for voting is 18 years
 Minimum age for contesting election is 21 years
 1/3rd of seats reserved for women at all levels
 Reservations introduced for SC/ST category of persons
 Introduction of two bodies – State Election Commission and State Finance Commission

23
THE STATUS OF PRIS CAN BE REVIEWED IN TERMS OF FOLLOWING PARAMETERS

(i) Conduct of Panchayat elections;
(ii) Devolution of Financial Powers;
(iii) Devolution of Functions and Functionaries;
(iv) Constitution of District Planning Committees (DPCs);
(v) Status of Gram Sabha;
(vi) PESA of 1996;
(vii) Checks and Balances over PRIs and Accountability
CONDUCT OF PANCHAYAT ELECTIONS

As a result of election to PRIs in States/Union Territories, 2,27,698 Panchayats at village level, 5906
Panchayats at intermediate level and 474 Panchayats at the district level have been constituted in
the country. These Panchayats are being manned by about 34 lakhs elected representatives at all
levels; of them one-third are women. This is the broadest representative base that exists in any
country in the ward.

24
DEVOLUTION OF FINANCIAL POWERS

 The recommendations of the State Finance Commissions can be divided into three categories:
(i) assignment of taxes, duties, levies and tolls to local bodies;
(ii) sharing of revenue proceeds; and
(iii) transfers on account of grants-in-aid and other financial assistance.
 Many of the State Governments have agreed to give PRIs a specific percentage of share in
some of the State taxes like land revenue and cess on it, additional stamp duty, entertainment
tax, royalties on minerals and mines, forest revenue and market fees; these taxes are less
buoyant in nature and have no relation to the powers and functions to be devolved upon
Panchayats.
 All SFCs have put great emphasis on internal revenue mobilization, but none has suggested
any effective mechanism for PRIs to generate their own revenue
 However, the SFCs suggest better use of the existing tax jurisdiction by referring the system
of property taxation and giving greater autonomy to local bodies in matters relating to tax
rate setting
 Till such time that they are financially dependent on funds from the State Governments, the
State Budgets should specify the amount earmarked for district sector plans under Panchayati
Raj as also their distribution among the three tiers. It is suggested that 30-40 percent of a
State's Plan be devolved on local bodies as already done in the State of Kerala.
 In addition, a part of the finances should be in the form of untied funds so that the funds can
be utilized as per the felt needs of the Panchayats.
 Training and capacity building of PRI functionaries is essential and devolution of financial
resources must be accompanied by suitable strengthening of PRIs through transfer of
departmental functionaries.
DEVOLUTION OF FUNCTIONS AND FUNCTIONARIES

 Initiatives such as taken by Madhya Pradesh, and Kerala need to be taken by all the States and
Union Territories if Panchayats are to be established as institutions of local self-government.
 In respect of the 29 subjects identified in the Eleventh Schedule it is necessary for the State
Governments to clearly identify what would be done by the three tiers of Panchayats at their
levels.
 NO STATE HAS TRANSFERRED ALL 29 SUBJECTS
In short, Local-self-government: formative to contemporary stage
Formative phase- ‘functions, functionaries and funds’
 Initiatives like MP and Kerala should be taken by all States and UTs

25
 In respect of the 29 subjects under the Eleventh Schedule, State govts need to clearly identify
the functions of the various tiers of Panchayats at their levels
 No State has transferred all 29 subjects
 Devolution of financial powers are decided by the SFC
 Emphasis has been put on internal revenue mobilization, but none have suggested measures
for PRIs to generate their own revenue
Contemporary stage- ‘functionality’
• Encroachment in their functioning by various parastatal bodies of the state such as water
development bodies, smart cities special purpose vehicle
• Appointment of the Commissioner by the state in the Municipal bodies and Gram Sevak at
Panchayat level
• Lack of capacity to deal with issues such as climate change, suburban sprawl, demographic
dividend etc
CONSTITUTION OF DISTRICT PLANNING COMMITTEES

 Despite long years of delay, many States are yet to constitute the DPCs. Only nine States,
namely, Haryana (just in 3 Districts), Karnataka (10 out of 27 districts), Kerala, Madhya
Pradesh, Rajasthan, Sikkim, Tamil Nadu, Tripura and West Bengal and two Union Territories,
namely, Andaman & Nicobar Islands and Daman & Diu have taken action to constitute DPCs
 In Kerala, a Voluntary Technical Corps (VTC) has been created consisting of about 10,000
technical experienced people to vet and re-work projects prepared by the panchayats.
STATUS OF GRAM SABHA

 It has been observed that most of the State Acts have not spelt the powers of Gram Sabhas
nor have any procedures been laid down for the functioning of these bodies.
 For instance,
(i) the law in most States prescribed at least two meetings of the Gram Sabha in a year.
Unfortunately, the minimum has been interpreted as a maximum.
(ii) Provision doing away with the need for quorum for adjourned meetings of the Gram
Sabha has reinforced the tendency to view Gram Sabha meetings as a mere formality;
(iii) State laws set out highly ritualistic functions for the Gram Sabhas.

26
 Gram Sabhas are to recommend and suggest, consider annual accounts, administrative
reports, audit notes, etc. These suggestions and recommendations of the Gram Sabhas could
be ignored by the Gram Panchayat.
 It may be confined to a single village or may span 2-3 villages. Where the Gram Sabhas cover
more than one village, their meetings qualitatively are seen to be very poor.
PANCHAYATS (EXTENSION TO SCHEDULED AREAS) ACT, 1996

 The provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) have
come into force on 24th December 1996
 The Act extends Panchayats to tribal areas of eight States namely, Andhra Pradesh, Bihar,
Gujarat, Himachal Pradesh, Maharashtra, Madhya Pradesh, Orissa and Rajasthan
 Enable tribal society to assume control of its own destiny to preserve and conserve the
traditional rights over natural resources.
 It gives radical self-governance powers to the tribal community and recognizes its traditional
community rights over natural resources.
 Prior to passage of this Act, laws passed by central and state governments were applied
mechanically to tribal areas even when these contravened traditional tribal practices and
institutions
 In fact, this is the first law that empowers people to redefine their own administrative
boundaries
 PESA provides that the tribal gram Sabha so defined would be empowered to approve all
development plans, control all functionaries and institutions of all social sectors as well as
control all minor water bodies, minor minerals and non-timber forest resources.
ISSUES
 Implementation of the law has been severely hampered by the reluctance of most state
governments to make laws and rules that conform to the spirit of the law.
 Enforcement of PESA is perceived as weakening the stranglehold of the forest bureaucracy,
and it is instructive to study the interpretation of PESA favored by the state governments for
attempts to minimize the bureaucratic loss of control.
 Governments to make appropriate amendments in their State Laws which impinge on specific
provisions contained in the Central Act namely
(i) Land Acquisition Act;
(ii) Excise Act;

27
(iii) State Irrigation Act;

(iv) Minor Forest Produce Act;
(v) Mines and Minerals Acts;
(vi) Land Revenue Code / Act;
(vii) SC/ST Land Alienation Act;
(viii) Money Lenders Act; and
(ix) Regulated Market Act. No doubt, some State Governments (MP) have already
amended some of the relevant Acts; others are yet to follow suit.
CHECKS AND BALANCES OVER PRIs & ACCOUNTABILITY

 Under the State laws, wide powers of suspension and dismissal have been vested in the State
bureaucracy. This straightaway places Panchayati Raj Institutions in a position of
disadvantage vis-a-vis even middle rung functionaries of State Governments.
 Another important aspect of the administrative restructuring process is the merger of District
Rural Development Agencies (DRDAs) with Zilla Parishads. In the light of the 73 Constitution
Amendment Act, DRDAs need to be restructured to suit the changed scenario. They should
work under the overall control and supervision of the Zilla Parishads.
 Instances have been reported where the Gram Panchayat Sarpanches have to spend a good
lot of time visiting Block Offices and of harassment by Block level officials
 The three tiers also compete for funds and powers. The lower tiers are normally the losers in
this process. This would make decentralized development, within a district plan, infructuous
and non-sustainable
 A massive awareness generation programme needs to be taken up to inform Gram Sabhas
about their rights in planning, implementation and audit of development programmed and in
control over natural resources, land records and conflict resolution.
WAY FORWARD
 Popular projects undertaken by the Panchayats by utilizing funds granted by the Finance
Commission are Road Construction and maintenance and supply of drinking water.
 The Garib Kalyan Rozgar Abhiyan has been launched to actively engage Panchayats in
generating employment for newly returned migrant workers displaced due to the COVID-19
pandemic; with the Chief Ministers of Bihar, Jharkhand, Punjab, Himachal Pradesh, Rajasthan,
Kerala and Odisha holding regular video-conferences with Sarpanches to review measures
taken to curtail the COVID-19 pandemic and generate employment.

28
 Rashtriya Gram Swaraj Abhiyan

 Launched for the period of April 2018 to March 2022 with the primary aim of
strengthening Panchayati Raj Institutions (PRIs) for achieving Sustainable
Development Goals.
 The emphasis has been on strengthening Panchayati Raj institutions by ensuring basic
orientation training for the Elected Representatives of Panchayats, within six months
of their election and refresher trainings within 2years.
 Introduction and increased use of e-governance and technology driven solutions at
Panchayat level is key for attaining increased administrative efficiency, improved
service delivery, and greater accountability.
LSG IN TIMES OF COVID-19

 Gram panchayats in Odisha worked to ensure that beneficiaries under the ration distribution
schemes announced by the Central Government received their entitlement under the public
distribution system in advance for three months.
 In Sukma, a tribal district in Chhattisgarh, the gram panchayat provided ration to families
without waiting for supplies from the state government.
 Community kitchens have been set up to provide cooked food for those without access to
rations.
 In Chhattisgarh’s Kanker district, Sivni gram panchayat’s self-reliance in vegetable production
is inspirational.
 Gram panchayats across India are supporting transiting migrants, and employment is being
generated for displaced migrants.
 In many cities, Municipal councils have taken an initiative to sell ‘vegetables on wheels’ to its
citizens, so that they do not have to step out of the house to procure them, limiting their
contact as far as possible.

MAINS CRASH
COURSE
Polity: Theme 3
Separation of Powers
Atish Mathur
1
POLITY THEMES
S. No. THEME

Institutions

5 Parliament and State Legislatures—Structure, Functioning, Conduct of Business,
Powers & Privileges and Issues Arising out of these.

and

8 Appointment to various Constitutional Posts, Powers, Functions and Responsibilities
of various Constitutional Bodies

2

2014 Starting from inventing the ‘basic structure’ doctrine, the Judicial Activism
judiciary has played a highly proactive role in ensuring that India
develops into a thriving democracy. In light of the statement,
evaluate the role played by judicial activism in achieving the
ideals of democracy. [12.5/ 200]
2015 Resorting to ordinances has always raised concern on violation SC Judgement on
of the spirit of separation of power doctrine. While noting the repromulgation of
rationales justifying the power to promulgate, analyse whether land ordinances
the decision of the Supreme Court on the issue have further
facilitated to resorting to this power. Should the power to
promulgate the ordinances be repealed? [12.5/200]
2015 What are the major changes brought in the Arbitration and SC Judgements- CA
Conciliation Act, 1996 through the recent Ordinance
promulgated by the President? How far will it improve India’s
dispute resolution mechanism? Discuss. [12.5/200]
2016 What was held in the Coelho case? In this context, can you say Theory
that judicial review is of key importance amongst the basic
features of the Constitution? [12.5/ 200]
2018 How far do you agree with the view that tribunals curtail the Theory
jurisdiction of ordinary courts? In view of the above, discuss the
constitutional validity and competency of the tribunals in India.
2019 Do you think that constitution of India does not accept principle Theory
of strict separation of powers rather it is based on the principle
of ‘checks and balance’? Explain [10/150]
2019 The Central Administration Tribunal which was established for Theory
redressal of grievances and complaints by or against central
government employees, nowadays is exercising its powers as an
independent judicial authority.” Explain.
2020 Judicial Legislation is antithetical to the doctrine of separation of Theory
powers as envisaged in the Indian Constitution. In this context
justify the filing of large number of public interest petitions
praying for issuing guidelines to executive authorities.

3
Focal Areas
 Separation of Powers & Checks and Balances

 Ordinances
 Tribunals
 Judicial Review & Activism, PIL (Only in PDF File)
 ADR (Only in PDF File)
 Lok-Adalats (Only in PDF File)

4
SEPARATION OF POWERS
INTRODUCTION
 Aristotle, in his book ‘Politics’, discussed the concept of separation of powers stating that
every constitution should have a heterogeneous form of government consisting of mainly
three branches: the deliberative, public officials and the judiciary.
 Montesquieu described division of political powers among an executive, a legislature, and a
judiciary.
 He based this model on the British Constitutional system, in which he perceived a separation
of powers among the monarch, Parliament, and the courts of law.
 The Constitution recognizes of the three-fold functional division of governmental powers.
 Article 50 expressly requires the State to apply the principle of separation of the judiciary from
the executive as a sound principle of Government.
FOR ESSAY
 Montesquieu who for the first time gave it a systematic and scientific formulation in his book
'Esprit des Lois (The Spirit of the laws) published in the year 1748.
 The Executive should not exercise the legislative or judicial powers because this may threaten
the freedom and liberty of individuals.
 The Legislative should never exercise the executive or judicial powers as this may lead to
arbitrariness and hence, end the liberty.
 The Judiciary should not exercise the executive or legislative powers because then a judge
would behave like a dictator.
OBJECTIVES OF SOP
• Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an
accountable and democratic form of government.
• Secondly, it prevents the misuse of powers within the different organs of the government.
The Indian Constitution provides certain limits and boundaries for each domain of the
government and they are supposed to perform their function within such limits. In India, the
Constitution is the ultimate sovereign and if anything goes beyond the provisions of the
constitution, it will automatically be considered as null, void and unconstitutional.
• Thirdly, it keeps a check on all the branches of the government by making them accountable
for themselves.

5
• Fourthly, separation of powers maintains a balance among the three organs of government
by dividing the powers among them so that powers do not concentrate on any one branch
leading to arbitrariness.
• Fifthly, this principle allows all the branches to specialize themselves in their respective field
with an intention to enhance and improve the efficiency of the government.
SEPARATION OF POWERS- UK CONSTITUTION

• The United Kingdom practices the unitary parliamentary constitutional monarchy.
• The concept of separation of powers is applied in the UK but not in its rigid sense because the
UK has an unwritten constitution.
• The Parliament is the sovereign rule-making body in the UK.
• The government is answerable to the Parliament. Practically, the executive is controlled by
the House of Commons.
• The Judiciary, however, is independent of executive control. But the judges of the Supreme
Court can be removed on the address of both the houses if found with any charge of
corruption.
SEPARATION OF POWERS- US CONSTITUTION

• The US has a written constitution and governed by the Presidential form of government
• This concept is well-defined and clear under the American Constitution.
• The President and his ministers are the executive authority and they are not members of the
Congress.
• The ministers are accountable to the President only and not to the Congress.
• The tenure of the President is fixed and independent of the majority in Congress.
• Congress is the sovereign legislative authority. It consists of two houses- Senate and House of
Representative.
• The impeachment of the President can be done by Congress.
• The treaties entered by the President are to be approved by the Senate. The Supreme Court
of the USA is independent.
• It may declare any action of the executive as well as the legislature as unconstitutional if found
so.
• President interferes in the functioning of Congress by exercising his veto power. He also
makes the appointment of the Judges thus, interfering in judicial powers.

6
• Similarly, Congress interferes in the powers of the Courts by passing procedural laws, making
special courts and by approving the appointment of the judges.
• The judiciary, by exercising the power of judicial review interferes in the powers of Congress
and the President.
CRITICAL ANALYSIS- THE INDIAN PERSPECTIVE- CONSTITUTIONAL PROVISIONS

• The Indian Constitution does not expressly mention the theory of separation of powers. In
fact, the Constituent Assembly Debates indicate that separation of powers in its rigid or literal
sense was never intended to be adopted by the constitution makers at all.
• This was evident when the insertion of a new Article 40-A, that prescribed a complete
separation of powers between the three branches, to the Constitution was proposed by Prof.
K T Shah in the Constituent Assembly.
• Dr. B.R Ambedkar, while acknowledging the separation of the executive from the judiciary,
emphasized upon the importance of interdependence between the executive and legislature
for the proper functioning of their complicated duties in the government.
CONSTITUTIONAL PROVISIONS SUPPORTING SOP

• Distinct institutions and core powers
• Under Articles 53(1) and 154 of the Constitution, the executive powers of the Union
and States have been expressly vested in the President and the Governor respectively.
• Article 245 vests the Central and State law making authority to the Parliament and
State Legislatures respectively, empowering the Parliament to make laws for the
whole country
• Article 50 categorically prescribes the separation of the executive from the judiciary
under the Indian governmental structure. Hence, an apparent demarcation between
the three branches and their functions is found to be broadly laid out under the
Constitution.
• Autonomy and independence
• Articles 122 and 212 of the Constitution avert the Courts from inquiring into the
proceedings of the Parliament and State legislatures respectively.
• Articles 105 and 194 confer judicial immunity to the MPs and MLAs from anything
spoken during their sessions
• Article 361, the President and Governor are also not accountable to the Courts for
exercise of their powers and duties in the office

7
• the Supreme and High Court judges are also immune from a scrutiny of their conduct
in the Parliament or State Legislature (Articles 121 and 211
PROVISIONS LEANING AGAINST A PURE SEPARATION OF POWERS

• Overlapping personnel
• The Indian governmental structure is such that there is a commonality of personnel
between the two organs, with the Union Council of Ministers being members of both
the Parliament (Article 75) as well as the executive (Article 74).
• Even the President is regarded as part of the Legislature along with the Houses of the
Parliament (Article 79).
• Overlapping powers (E & L)
• There is also a commonality of powers between the two organs, with the powers of
the executive prescribed as co-extensive to that of the legislature (Article 74)
• The executive exercises legislative powers when it comes to the President’s authority
to issue ordinances when the Houses of the Parliament are not in session, which is
considered equivalent to a Parliamentary Act (Article 123)
• The President’s assent is required for the passing of bills proposed by the legislature
(Article 111). The President also exercises legislative functions during the proclamation
of State Emergency (Article 356), where he has the authority to make laws for the state
upon the dissolution of the State Legislature
• Moreover, the very concept of delegated legislation is based on the conferment of
legislative powers to the executive. This delegation is carried out in the name of
administrative adjudication of the rights of the citizens and is implicitly allowed by the
Constitution (Articles 372 and 13)
• The Council of Ministers is also collectively responsible to the Lok Sabha, indicating
another overlap between the two organs (Article 75).
• Hence, it has been said that there is a fusion between the executive and the legislative
in India, but without any friction occurring between them.
• Overlapping powers (E & J)
• The President is empowered to grant pardon, reprieve, respite or remise to the
sentence of any person convicted by Supreme Court of India, representing a judicial
power (Article 72).
• The President also performs a judicial act in resolving disputes relating to the age of
judges of the courts as regards their retirement from judicial office
(Articles 124(2)(a) and 217(3)).

8
• On the other hand, the judiciary exercises executive functions under Article 227 of the
Constitution wherein the High Courts have been granted the power of supervision
over subordinate courts.
• Further, they carry out other administrative functions such as the transfer of cases
under Article 228.
• Overlapping powers (L & J)
• The Parliament also performs judicial functions such as punishing its members or
outsiders for contempt or breach of parliamentary privilege.
• The judiciary, on the other hand, performs legislative functions in laying down rules
and procedures for court proceedings and practice (Article 145).
CHECKS & BALANCES

• The Parliament has the authority to initiate impeachment proceedings against the President
and exercises a check on his activities (Article 61).
• The Parliament and President together have the power to remove judges of the Supreme
Court (Article 124) and High Courts (Article 217) and the President further possesses the power
to appoint the judges of the High Courts and the Supreme Court (Article 124 and 217).
• Most importantly, the power of judicial review possessed by the Courts under
Articles 32, 226 and 136 reflects a paradigm of checks and balances, as it allows the Courts to
strike down the laws of the Parliament or actions of the executive that are adjudged
unconstitutional
JUDICIAL APPROACH TOWARDS SOP IN INDIA

 Ram Jawaya Kapur v. State of Punjab : The Constitution of India has not acknowledged the
doctrine of separation of power emphatically but the functions and powers of all the organs have
been adequately distinguished. India’s constitutional structure sufficiently differentiates the
functions and branches of the Government to prevent the assumption of functions of one
organ by another.
 In the Re Delhi Laws Act case – it was highlighted how the British Parliamentary system
adopted by India entails the responsibility of the executive to the legislature as its essential
feature, and does not strictly follow the doctrine.
 Indira Nehru Gandhi v. Raj Narain : A rigid sense of separation of powers which has been given
under the American and Australian constitution does not apply to India. The separation of power
is a part of the basic structure of the constitution. So, the schemes of the constitution cannot be
changed even after restoring Article 368 of the Indian Constitution

9
 Golak Nath v. State of Punjab : All the organs must function within the spheres allotted to them
by the constitution. No authority which is created by the constitution is supreme.
CRITICISM OF SOP
• It is extraordinarily difficult to distinguish the powers of the legislature, executive and
judiciary precisely. A smooth and stable government can exist only if there is cooperation
among the three organs. Any attempt made to separate these organs into watertight
compartments may lead to failure and inefficiency in the government.
• If this concept is adopted in its totality, then it will become impossible to take certain actions.
Consequently, neither the legislature can delegate the law-making power to the executive
which may have expertise in the subject matter, nor the courts can make laws related to the
functioning of courts and proceedings.
• In the present scenario, a state works
for the welfare and prosperity of the
people. It has to resolve the complex
issues of society. In such circumstances,
the principle of separation of power
seems to be impossible. The imposition
of this doctrine in its rigid conception
will not lead to the effectuation of the
objectives of the modern state. Thus,
separation of power is theoretically
improbable and practically impossible.
• Montesquieu, by propounding this
theory aimed to protect and safeguard
the freedom and liberty of the
individuals which is impossible by the
strict enforcement of separation of
powers.
CONCLUSION
• The doctrine of separation of powers must be interpreted in a relative form. In the era of
liberalisation, privatisation and globalisation, separation of power must be expounded in a
wider perspective. It should not be curb to the principle of restraint or strict classification only
but a group power exercised in the spirit of cooperation, coordination and in the interest of
the welfare of the state.

10
ORDINANCES
INTRODUCTION
 An ordinance is a law that is promulgated by the President of India, on the recommendation
of the Union Cabinet, when the Parliament is not in session.
 Similarly, the Governor of a state can also initiate ordinances when a Legislative Assembly is
not in session when it is a unicameral legislature and when Legislative Assembly along with
Legislative Council both are not in session when itis a bicameral legislature.
 Article 123 of the Constitution grants the President the power to promulgate Ordinances.
 This technique of issuing an ordinance has been devised with a view to enabling the executive
to meet any unforeseen or urgent situation arising in the country when Parliament is not in
session, and which it cannot deal with under the ordinary law.
 Adopted from Government of India Act, 1935 which vested parallel legislative power in the
governor-general of India.
 The duration of an ordinance was highly criticized in the constituent assembly debates
ORDINANCES IN THE NEWS

• The Delhi Special Police Establishment (Amendment) Ordinance, 2021 : CBI Director Tenure
for 5 Years
• The Central Vigilance Commission (Amendment) Ordinance, 2021: Director tenure for 5 years
• The Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021 Drafting
error
ORDINANCES RELATED DATA

 Between 1952-2014, governments issued 637 ordinances; that averages out to 11 per year or
almost one ordinance a month.
 About 70 ordinances between 1952 to 1964
 77 Ordinances during 1971-77
 2021: 10, 2020: 14, 2019: 16, 2018: 9, 2017: 7, 2016: 10, 2015: 9, 2014: 9, 2013: 11, 2012: 1
 First recorded Ordinance: The Indian Paper Currency ordinance, 1918
 First Ordinance of Independent India: The Press (Special Powers) No.2) Ordinance, 1947 (Gov
Gen)

11
 First Ordinance post Enforcement of Constitution: The Parliament (Prevention of

Disqualification) Ordinance, 1950.
ORDINANCES MAKING POWER OF THE EXECUTIVE
COMPARISON BETWEEN REGULAR LEGISLATION AND ORDINANCE

 An Ordinance made by the President is a legislative act and not an executive act. Hence, itis a
‘law 'within the meaning of Constitution. This power of the President is Co-extensive with the
legislative power of the Parliament itself. An Ordinance, therefore, cannot be promulgated
with respect to a subject which is beyond the legislative competence of Parliament.
 While the initiative for both an Ordinance and regular legislation comes from the Executive,
the former is passed on a current basis and in case of the latter, the legislative sanction is
postfacto.
 Unlike the passing of a regular bill, there is no scope for detailed discussion and arriving at
consensus at the time of promulgation of Ordinances.
 Like money bills and finance bills, there can be Ordinance on fiscal matters as well.
 An Ordinance is also subject to judicial review on grounds of unconstitutionality. Courts have
held that the motives of promulgating an Ordinance cannot be questioned in a Court of law,

12
much like the act of the Legislature in passing a law. A Court may only declare an Ordinance
invalid in case it transgresses the constitutional limits of the power
SC & ORDINANCES
• RC Cooper v. Union of India (1970)
• If an ordinance is passed in a circumstance that failed to pass as one requiring
‘immediate action’, the same could be brought to the court of law to be tested for its
constitutionality.
• 44 CA 1978: President’s satisfaction not judicially reviewable
• Dr. D. C. Wadhwa v. State of Bihar (1987)
• Mechanical re-promulgation of the ordinances unconstitutional unless was urgent or
due to paucity of time
• Krishna Kumar Singh v State of Bihar (2017) (7 Judge Constitution Bench)
• Requirement of placing the ordinance before the Legislature is mandatory
• It was further held that any act, right, privilege, obligation or liability to survive after
an ordinance has ceased to operate, must satisfy three tests:
o That the effect of the ordinance is irreversible;
o That reversing the consequence of the ordinance is impractical;
o That there is a compelling public interest to continue the effect of the
ordinance.
ORDINANCES AN ABUSE OF PARLIAMENTARY DEMOCRACY

 The Ordinance making power of the President is in reality a power vested with the Union
Cabinet or the Council of Ministers. Moreover, the satisfaction of the President regarding the
existence of circumstances that render it necessary for him to take immediate action is a
subjective matter which cannot be probed or questioned in a court of law; and the precise
nature of the action that he may decide to take in such circumstances is also left to his
discretion and cannot be challenged. This is similar to the principle that the judiciary cannot
examine the reason or motivation to enact a legislation by the Legislature, but merely
comment on its constitutional validity.
 The increase in the number of ordinances promulgated by the Government has sparked the
debate on the use of ordinances to undermine the democratic process of legislating.
 The Courts have, in various decisions clarified the power of making Ordinances. In D.C.
Wadhwa & others v/s State of Bihar (1986),the Supreme Court made following observations:

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 The power to promulgate an Ordinance is an emergency power which may be used where
immediate action may be necessary at a time when the legislature is not in session. It is
contrary to all democratic norms that the Executive should have the power to make a law;
hence such emergency power must, of necessity, be limited in point of time.
 A constitutional authority cannot do indirectly what it is not permitted to do directly. If there
is a constitutional provision inhibiting the authority to do an act, to avoid that limitation by
resorting to a subterfuge would be a fraud on the constitutional provision.
 While the satisfaction of the President as to the existence of circumstances necessitating
immediate action by issuing an Ordinance cannot be examined by Court, it is competent for
the Court to inquire whether he has exceeded the limits imposed by the Constitution. He
would be usurping the function of the Legislature if he, in disregard of the constitutional
limitations, goes on re-promulgating the same Ordinance successively, for years together,
without bringing it before the legislature.
 Though, in general the motive behind issuing an Ordinance cannot be questioned, the Court
cannot allow it to be ‘perverted for political ends’.
 The Court in this case also made it abundantly clear that repeated re-promulgation of
ordinances was unconstitutional.
 An ordinance is not permanent. It is a stop gap measure for matters that need urgent
attention when the Legislature is not in session. However, the motivation to use the power of
promulgating Ordinances vested in the President and the Governors under Articles 123 and
213 of the Constitution is generally a result of one of the following three reasons:
 Reluctance to face the legislature on particular issues.
 Fear of defeat in the Upper House where the government may lack the required
numbers.
 The need to overcome standoff in the legislature caused by repeated and willful
disruption by a section of the Opposition.
 In Krishna Kumar Singh v/s State of Bihar (2017), a seven-judge bench of the Supreme Court
stated that the failure to place an ordinance before the legislature constitutes abuse of power
and a fraud on the Constitution, noting that a 1989 ordinance by which the State government
took over 429 Sanskrit schools in Bihar was promulgated several times until 1992, but not once
tabled in the State Assembly
IMPLICATIONS
 The judgement widens the scope of judicial review of ordinances.

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 The court can go into whether the President or Governor had any material to arrive at the
satisfaction that an ordinance was necessary and to examine whether there was any tilted
motive.
 Maintenance of constitutional decorum and legislative control over law making.
OTHER CONSIDERATIONS
 Use of an ordinance by the President/Union Cabinet need not always be a cynical move to
privilege political expediency over parliamentary accountability.
 The contention that ordinances are to be used only in times of exigent circumstances must
also be balanced by the view that disruption of parliament as a political tactic plays a
significant role in delaying urgent legislation. Moreover, a disruptive House may sometimes
constitute a compelling circumstance in itself.

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TRIBUNALS
What is a Tribunal?
 Tribunals are institutions established for discharging judicial or quasi-judicial duties. The
objective may be to reduce case load of the judiciary or to bring in subject expertise for
technical matters.
 The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the same
level of independence from the executive as the judiciary. Key factors include the mode of
selection of members, the composition of tribunals, and the terms and tenure of service.
 In order to ensure that tribunals are independent from the executive, the Supreme Court had
recommended that all administrative matters be managed by the law ministry rather than the
ministry associated with the subject area. Later, the Court recommended creation of an
independent National Tribunals Commission for the administration of tribunals. These
recommendations have not been implemented.
NEED OF TRIBUNALS
 To overcome the problem of pendency in Courts and reduce workload of courts.
 To expedite decisions and to provide a forum which would be manned by lawyers and experts
in the areas falling under the jurisdiction of the tribunal.
 To perform specialised roles in various fields such as hearing disputes related to the
environment, armed forces, tax and administrative issues.
 Tribunals were not part of the original Constitution; they were incorporated into the
Constitution by the 42nd Amendment Act, 1976.

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CONSTITUTIONAL PROVISIONS (42ND CA, 1976)
Article 323A Article 323B
Deals with Administrative Deals with tribunals for other matters- NGT, COMPAT, SAT
tribunals
Adjudication of disputes in following matters:

• Taxation
• Foreign Exchange, import-export
• Industries and labor
• Land reforms
• Ceiling on urban property
• Elections to Parliament and State Legislature
• Rent and tenancy rights

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Can be established only by the Can be established by Parliament or State Legislature

Parliament
In 2010, the Supreme Court clarified that the subject matters
under Article 323B are not exclusive, and legislatures are
empowered to create tribunals on any subject matters
under their purview as specified in the Seventh Schedule of
the Constitution
Only one at Centre and one for There can be hierarchy of tribunals
each State (for two/more States)
ADVANTAGES AND DISADVANTAGES OF TRIBUNALS
Advantages Disadvantages
Offers flexibility when compared to ordinary Goes against the spirit of Rule of Law
courts that have to adhere to strict procedures
Cheap and speedy justice
Procedure followed is simple and easy to Uniform code of procedure for civil and
understand criminal cases, however, administrative
tribunals have no uniformity
Offer relief to ordinary courts that are already Sometimes has led by subject matter experts,
overburdened who have no experience of judicial proceedings
PRIMARY ISSUES WITH TRIBUNALS

• Independence of tribunals
• Any involvement of the central government in administrative activities of tribunals
(such as sanctioning leave for members) would affect their independence
• The Standing Committee on Personnel, Public Grievances, Law and Justice (2015)
recommended creation of an independent body called the National Tribunals
Commission (NTC) for administration of all tribunals in India
• Pendency of cases
• Even some tribunals face the issue of a large backlog of cases

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• As of March 15, 2021, the central government industrial tribunal cum-labour courts had
7,312 pending cases; as of February 28, 2021, the Armed Forces Tribunal had 18,829
pending cases; and as of January 1, 2018, the Income-tax Appellate Tribunal had 91,643
pending cases
• The lack of human resources (such as inadequate number judges) is observed to be
one of the key reasons for accumulation of pending cases in courts.
• The NCLT had only 30 members against a total strength of 63, These vacancies are
concerning because as of May 31, 13,170 insolvency petitions were pending before
benches of the NCLT.
• The Standing Committee on Personnel, Public Grievances, Law and Justice (2015) had
noted that several tribunals (such as Cyber Appellate Tribunal and Armed Forces
Tribunal) have vacancies which makes them dysfunctional

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THE TRIBUNALS REFORMS (RATIONALISATION AND CONDITIONS OF SERVICE) ACT, 2021

• Outline:
• Dissolves certain existing appellate bodies and transfers their functions to other
existing judicial bodies. (Cinematograph, Trademarks, Copyright, Customs, Patents,
Airports, Plant Varieties, GI)
• 50 years as Minimum age to become a chairperson
• Term of Office: 4 years, Chairperson: 70 years, Other Members: 67
• Broad Issues:
• Increases judicial burden
• Contrary to SC
• Term should be 5 years
• Minimum age of 50 years discourages young talent, advocates with 10 years of
experience should be eligible as judicial members
KEY DEVELOPMENTS
• 2017 –
• Finance Act, 2017 merged 26 tribunals into 19. It delegated powers to the central
government to make Rules
• Ministry of Finance notified Rules
• 2019 – Rojer Mathew versus South Indian Bank Ltd & Ors
• Supreme Court struck down the 2017 Rules the Court stated that the Rules did not
meet the requirements laid down in earlier judgements mandating judicial
independence
• The Court directed the central government to reformulate the Rules. Key concerns
that the Court wanted addressed include:
(i) short tenures which prevent enhancement of adjudicatory experience, and thus
impact the efficacy of Tribunals, and
(ii) lack of judicial dominance in selection committees which is in direct
contravention of the doctrine of separation of powers.
• 2020 – Madras Bar Association vs Union of India
• New Rules were notified, which were again challenged in the Supreme Court mainly
over the lack of conformity with the principles laid out earlier by the Court. For
example: the 2020 Rules specified four-year term of office against five years as
specified by the Supreme Court in 2019.
• The Court suggested certain amendments to the 2020 Rules such as increasing the
term of office to five-year along with eligibility for re-appointment (subjected to upper

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age limits), and allowing advocates with 10 years’ experience to be appointed as

judicial members.
• 2021 - Madras Bar Association vs Union of India
• Under the Finance Act, 2017, new Rules were notified on June 30, 2021. The Rules allow
advocates with 10 years’ relevant experience eligible for appointment as judicial
members and provide details on house rent allowance for members
• The Ordinance and the Rules were challenged in the Supreme Court. The Court struck
down provisions related to the four-year tenure and the minimum age requirement of
50 years for members of tribunals.

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SOME SUGGESTIONS
NATIONAL TRIBUNALS COMMISSION

• first mooted in L. Chandra Kumar v. Union of India (1997)
• NTC must be established vide a constitutional amendment or be backed by a statute that
guarantees it functional, operational and financial independence.
• Need for an authority to support uniform administration across all tribunals
• The NTC could therefore pave the way for the separation of the administrative and judicial
functions carried out by various tribunals
• A ‘corporatised’ structure of NTC with a Board, a CEO and a Secretariat will allow it to scale up
its services and provide requisite administrative support to all tribunals across the country
• It could set performance standards for the efficiency of tribunals and their own administrative
processes.
• It could function as an independent recruitment body to develop and operationalise the
procedure for disciplinary proceedings and appointment of tribunal members.
• Administrative roles of the NTC include providing support services to tribunal members,
litigants, and their lawyers. For this purpose, it would need to be able to hire and supervise
administrative staff, and to consolidate, improve, and modernise tribunals’ infrastructure.

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SHOULD STATUTORY TRIBUNALS HAVE SUO MOTU POWERS?

Context
• On May 7th 2020, a gas leak in Visakhapatnam killed 11 and hospitalised hundreds of people.
The very next day, the National Green Tribunal (NGT) initiated proceedings against LG
Polymers, the owners of the chemical plant. Although no one had filed a petition, the NGT
took up the case based on media reports about the leak. They passed an Order imposing a
fine of Rs. 50 Crores on LG Polymers, even before a notice was sent to them. The fine was
decided based on the value of the company and the Tribunal’s estimates of likely damages.
• In October 2018, the NGT passed an order based on a news report, imposing a five crore fine
on the Mumbai Municipal Corporation for improper waste management
• Similarly, in March 2021, the NGT passed an order based on a letter written to the Chairman.
The order increased the minimum distance of quarries from residential areas from 50 to 200
metres
• This Order was passed by a statutory tribunal exercising suo moto powers.
• A statutory tribunal is a quasi-judicial body, which unlike a court of law, is an administrative
institution with the power to decide cases on defined subject matter.
• Statutory Tribunals’ powers are limited to their statutory jurisdiction and are not a
constitutional court of general jurisdiction
Rationale
• The National Green Tribunal Act, 2010 (NGT Act), which establishes the NGT, does not
expressly provide the tribunal with suo moto powers.
• In The Karnataka Land Reforms Act, 1961 the limited suo moto powers of the Land Tribunal
are clearly mentioned in s 122A.
• The Debt Recovery Appellate Tribunal held that the Debt Recovery Tribunal does not enjoy
suo moto powers. It noted that suo moto powers were not expressly mentioned in
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and could not be
inferred from the general power to regulate its own procedures.
NATIONAL GREEN TRIBUNAL

 Established in 2010 for effective and expeditious disposal of cases that are related to
protection and conservation of the environment, forests and other natural resources.
 Tribunal has jurisdiction over all civil cases involving substantial question relating to
environment (including enforcement of any legal right relating to environment).
 ‘Special’ because India is the third country following Australia and New Zealand to have such
a system.

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 Principal Bench in New Delhi and regional benches in Pune (West), Bhopal (Central), Chennai
(South) and Kolkata (East).
Challenges
 Two important acts - Wildlife (Protection) Act, 1972 and Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 have been left out of
NGT’s purview, which restricts the jurisdiction of NGT and hampers functioning.
 Lack of clarity on the position of the NGT in relation to High Courts results in NGT decisions
being challenged in various High Courts under Article 226 under the argument that High
Courts are superior to the NGT, despite the NGT Act providing for appeals directly to the
Supreme Court.
 The decisions of the NGT are not fully complied with by stakeholders or the government,
under the pretext of an unfeasible timeframe.
 The lack of human and financial resources has led to high pendency of cases - which
undermines NGT’s very objective of disposal of appeals within 6 months.
Landmark cases
 Betty C. Alvares vs. The State of Goa and Ors. - Even a Foreign National Can Approach the NGT
 Almitra H. Patel & Ors. vs. Union of India and Ors. - Complete prohibition on open burning of
waste on lands
 Manoj Misra Vs. Delhi Development Authority & Ors. – The Art of Living Foundation was
penalized INR 5 Crores for damaging the Yamuna plains during its conduct of the World
Culture Festival.
NGT & SUO MOTU POWERS
• On October 7th 2021, in Municipal Corporation of Bombay v Ankita Sinha. The Court decided
that the National Green Tribunal (NGT) has suo moto powers.
• The NGT was Formed to Protect a Key Aspect of the Right to Life
• Section 14 states that for the NGT to be able to hear a matter: there must be a civil case; which
substantially concerns the environment; and involves the implementation of environmental
legislations. If these three prerequisites are satisfied, the NGT may exercise jurisdiction
• NGT’s Role Goes Beyond Dispute Resolution
• The Court held that as long as the ‘sphere of action’ is not breached, the NGT’s powers must
be read widely.
• The NGT Should be Guided by the Principles of Environmental Justice and Equity.

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JUDICIAL REVIEW & ACTIVISM
 The ultimate power of Judiciary to review and determine validity of a law or an order.
 The power of a court to inquire whether a law, executive order or other official action conflicts
with the Constitution and if the court concludes that it does, to declare it unconstitutional and
void.
 Judicial Review is one of the checks and balances to the doctrine of separation of powers.
NEED/ JUSTIFICATION OF JUDICIAL REVIEW

 Supremacy of the Constitution: The judiciary is considered as the guardian of the Constitution
upholding the rule of law by declaring any action void, if it is in violation of constitution and
also to limit the arbitrary powers of the government in order to upholding constitutionalism.
 Ensuring separation of power by acting as a check and balance and putting the powers of the
legislatures and the executives under some restraints and not making them uncontrolled and
arbitrary
 Maintaining federal equilibrium: The justification of judicial review function can also be
attributed to federal set up, as we have one Government at the Centre and one at the State
level and both of them make law in their respective sphere. In case of inconsistency among
these laws or the question of competency of law making, there should be an impartial body
to adjudicate upon these issues, independent of any pressures. Hence in a federal State,
judicial arbitration is inevitable in order to maintain balance between the Centre and the State.
 Where the Constitution guarantees the fundamental rights, legislative violation of these
rights can be scrutinized by the court alone.

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NEED FOR JUDICIAL ACTIVISM

 Failure of other organs in discharging their duties – Many times, several laws and schemes in
the social and economic sectors have remained mere declaration of good intentions and when
this happens it leads to an erosion of the confidence of the citizens in the constitutional values
and democracy. In such a scenario, the judiciary steps into the areas usually earmarked for the
legislature and executive.
 To fill legislative vacuum and meet societal needs the courts often indulge in judicial
legislation thereby encroaching in the domain of legislature.
SUBJECTS OF JR- INDIA
 Violation of fundamental rights.
 Violation of various legal rights/constitutional restrictions.
 Enactment of statutes and other legislative/executive actions in violation of Constitutional
mandate regarding distribution/separation of powers.
 Delegation of essential legislative power by the legislature to the executive or any other body.
 Violation of implied limitations and restrictions.
FEATURES OF JR- INDIA
 Both Supreme Court and High courts exercise the power of judicial review but ultimate and
final power to determine the constitutional validity lies with the Supreme Court.
 Judicial Review can be conducted in respect of all central and state laws.
 Judicial Review applies only to the questions of law, not questions of fact.
 Limitations - Judicial Review cannot be conducted on laws dealing with subjects in the ninth
schedule of Constitution of India.
 Judicial Review cannot be undertaken suo moto by the courts.
ADVANTAGES DISADVANTAGES
 Keeps misuse of power  Undemocratic- interferes with separation of powers
in check, maintains doctrine
federal balance  Lack of clearly defined system
 Device for protection of
people’s rights
 Secures independence  Fear of judicial tyranny and irresponsible Parliament
of judiciary  Reversal of previous decisions- subjectivity in judgement.
 Helps Courts exercise E.g.- Golaknath case judgement reversed the earlier
their Constitutional judgements, and Kesavananda Bharati judgement reversed
duties the Golaknath judgement

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DIFFERENCES & DISTINCTIONS
JUDGEMENTS
JUDICIAL REVIEW
 S. P. Sampath Kumar v. Union of India - Justice P.N. Bhagwati, C.J. established that judicial
review was a basic feature of Constitution.
 L. Chandra Kumar v. Union of India - Bench stated: “that the power of judicial review over
legislative action vested in the High Courts under Article 226 and in the Supreme Court under
Article 32 of the Constitution is an integral and essential feature of the Constitution,
constituting part of its basic structure”.
 Navtej Singh Johar vs. Union of India – The Supreme Court decriminalized homosexuality by
striking down Section 377 of the Indian Penal Code.
JUDICIAL ACTIVISM
 Indian Young Lawyers’ Association v. State of Kerala – Allowed entry of women into the
Sabarimala Temple.
 K.S. Puttaswami vs. Union of India – Right to Privacy declared a fundamental right under
Article 21 and is enforceable against the State.
 Vishaka v. State of Rajasthan – The Supreme Court laid down guidelines for prevention of
sexual harassment of women at the workplace, which was followed for nearly 16 years before

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the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Act, 2013).
PROVISION GIST
ARTICLE 13 Any law which contravenes any provision of the part of FRs shall be void
ARTICLES 32 AND 226 Entrusts the roles of protector and guarantor of FRs to the SC and HCs
ARTICLES 131-136 • Entrusts the SC with the power to adjudicate disputes between
individuals, between individuals and the State, between States
and the Union
• The court may be required to interpret the provisions of the
Constitution and the interpretation given by the SC becomes
honored by all courts of the land
ARTICLE 143 • The Constitution u/A. 143 authorises the President to seek the
opinion of the SC in two categories of matters:
• On any quest of law or fact of public importance which has arisen
or which is likely to arise
• On any dispute arising out of pre-Constitution Treaty, agreement,
Covenant, engagement or other similar instruments
ARTICLE 145 Gives SC power to frame rules including rules regarding condition on
which a person can practice before the Court
ARTICLE 227 States that every HC shall have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises
jurisdiction (except a court formed under a law related to armed forces)
ARTICLE 246(3) Ensures the State Legislature’s exclusive powers on matters pertaining
to the State List
ARTICLES 251 AND 254 States that in case of inconsistency between Union and State laws, the
State law shall be void
ARTICLE 372 (1) Establishes the Judicial Review of the pre-Constitution legislation
DOES JUDICIAL ACTIVISM UNDERMINE PARLIAMENTARY DEMOCRACY/ HAS IT TAKEN OVER THE
ROLE OF EXECUTIVE AND LEGISLATURE?
 Judicial Activism is criticized primarily on two grounds –
 firstly, law making is the responsibility of the legislature only and
 secondly, judges are neither elected by the people nor are answerable to the.

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 Therefore, since courts are not representative bodies reflecting the will of people , they
aren’t competent enough to know what the people want.
 However, many scholars feel that judicial activism is democratic because there is
accountability of the judges through their reasoning in their decisions. If the reasons are
wrong the decisions are criticized, are set aside and reconsidered and this fosters
accountability in them.
 Hence, when executive and legislature are apathetic and fail to discharge their duties,
bureaucracy is indifferent towards its duties, all this affects the basic rights of the people.
Therefore, judiciary cannot turn a blind eye towards the laxity/ incompetency of the other two
organs and has to step in to fill the gap.
JA: DETAILED EXAMPLES

 Golakhnath case, Kesavananda Bharati case, Vishaka Guidelines, Abolition of adultery,
decriminalisation of sec 377 IPC, abolition of Triple Talaq, protection of environment and
ecology, abolition of bonded labour, ban on smoking in public places , in Olga Telis v/s Union
of India, the court said that the outlines of Article 21 which provides right to life also include
itself the Right to livelihood as well as shelter, creation of collegium system in Judges transfer
case, institutionalization of PIL, provide mid-day meals to schoolchildren, witness protection
scheme etc.
 Courts have also entered into the fields traditionally reserved for executive in order to
improve the implementation of the law by using interim directions – in Shriram Fertilizer Gas
Leak case it ordered the plant to be closed and setting up of victim compensation fund. In
Dehradun Quarrying case, it closed limestone quarries in Mussoorie, SC ordered the
government to appoint a committee to look into the issues pertaining to bad loans, ordering
the UPA government to set up SIT to investigate black money, asking to create a new policy
to handle drought etc.
 But at times, it has been observed that the judges become too adventurous and indulge in
Judicial overreach. E.g.- liquor ban, imposition of Patriotism in National Anthem Case, setting
up of Lodha Committee to reform the Board of Control for Cricket in India which is a private
body etc.
EXAMPLES
• The concept of judicial review was first used and developed by the American Supreme Court
in the case of Marbury v. Madison
• JR: Shankari Prasad, Indira Gandhi, Kesavananda Bharati, Sajjan Singh, Minerva Mill
• L. Chandra Kumar v. Union of India (3 dimensions)

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 To ensure justice in executive action,

 To safeguard the fundamental rights enshrined in the Constitution, and
 To decide on issues of legislative competence among the union and the states.
• JA:
 Bandhua Mukti Morcha, Neeraja Chaudhary, and People’s Union for Democratic Rights,
 Murli S. Deora v. Union of India (banning of smoking in public places)
• JO:
 Proactive censorship in the case of Jolly LLB 2,
 NJAC Bill,
 Shyam Narayan Chouksey v. Union of India, the hon’ble court delivered a judgment
imposing the patriotism of National Anthem making it mandatory to be played in the
cinema halls/theatres before starting the film,
 In the case of State of Tamil Nadu v. K. Balu, the Supreme Court while dealing with a
petition for road safety, banned the sale of liquor within the 500 metres of any national
or state highway with the aim to ensure the safety of the highway users
CONCLUSION
 Judicial Review is the inevitable response of the judiciary to ensure proper check on the
exercise of public power.
 There is a thin line between Judicial activism and judicial overarch, just as independence of
the judiciary is part of basic structure, the primacy of the legislature in policy making is also
part of basic structure and interference by the courts into their domain is not always justified.
Additionally, even the society at large should not indulge in Judicial romanticism by abusing
the PIL
 It is not that a judge should never be an activist , but such activism should be done only in
exceptional cases and ordinarily judges should exercise self-restraint and should limit their
activism only in the cases where - such judicial legislation is for furthering the mandates of
the constitution, or a legal norm is required by society for its smooth running and for some
reason the legislature is unwilling or unable to create it, and when there is a gap in the
statutory law.
 Given the crucial role of the judiciary in protection and even evolution of the law of the land,
it is vital that the judiciary desist from passing ad hoc decisions without the backing of sound
principles, particularly, when the decision appears to break new grounds.

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PUBLIC INTEREST LITIGATION (PIL)
HOW CAN A PIL BE INITIATED?

 Any citizen can file a public case by filing a petition:
 Under Art. 32 of the Indian Constitution, in the Supreme Court.
 Under Art. 226 of the Indian Constitution, in the High Court
 Under S. 133 of the Criminal Procedure Code, in the Court of Magistrate.
 The Court must be satisfied that the writ petition fulfills some basic needs for PIL.
 Further, the Court can treat even a letter as a writ petition and take action upon it so long as:
 the letter is addressed by an aggrieved person; or
 a public spirited individual; or
 a social action group for enforcement of the constitutional or the legal rights of a
person in custody or of a class or group of persons who by reason of poverty, disability
or socially or economically disadvantaged position find it difficult to approach the
court for redress.
 A PIL can be filed against public bodies and authorities, but not against private parties.
PIL CONTEXT
• On an Average, the Supreme Court Receives over 25,000 PILs a Year
• 2019 : Highest PILs Filed in SC : 70,836
• The first PIL was admitted in 1979 in the case of Hussainara Khatoon v State of Bihar. This PIL
sought justice for undertrial prisoners in Bihar who had remained in jail awaiting trial for a
longer period of time than they would have been sentenced to if found guilty.
• More recently, it has been used to bring to the Court matters pertaining to the plight of
migrant children during the pandemic, the constitutionality of Muslim marriage practices,
and the need to update abortion laws.
• Letter petitions and writ petitions are entertained as PILs. Letter petitions are filed more
frequently than writ petitions. Letter petitions allow the general public to approach the court
easily, in comparison to writ petitions which are affected by social and political conditions.
SUBJECT MATTERS ENTERTAINED IN PILs INCLUDE

 Bonded Labour matters;

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 Neglected Children;
 Exploitation of casual workers;
 Non-payment of minimum wages;
 Atrocities towards women;
 Environmental pollution and disturbance of ecological balance;
 Food adulteration;
 Maintenance of heritage and culture.
LANDMARK PIL CASES

 Hussainara Khatoon v. State of Bihar (Considered first PIL case in India - focused on the
inhuman conditions of prisons and under trial prisoners).
 M.C. Mehta v. Union of India (Several cases for environment preservation were initiated by
way of PILs).
 Vishaka v. State of Rajasthan (The Supreme Court laid down guidelines for prevention of
sexual harassment of women at the workplace, which was followed for nearly 16 years before
the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013).
 Parmanand Katara v. Union of India (The Supreme Court held in this case that it is a
paramount obligation of every member of medical profession to give medical aid to every
injured citizen as soon as possible without waiting for any procedural formalities).
ADVANTAGES OF PIL
 Accessible legal redressal for all, especially poor and marginalised, balance of law and justice.
 Allows access to justice for economically challenged sections, and provides a platform for
them to advocate for their rights.
 Implements judicial review concept.
 Ensures judicial monitoring of state institutions (transparency, inter se checks and balances
between wings of the government).
 Democratizes justice; protects human rights.
 Raises awareness on important issues.
 Allows judicial monitoring of state institutions

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DISADVANTAGES OF PIL
 Problem of competing rights, wherein the recognition or grant of rights to one section of the
society leads to disadvantage to another section of marginalized population (E.g., shutting
down of polluting industries leads to loss of employment for daily wagers dependent on that
industry).
 Frivolous cases can be filed by parties with vested interest without heavy court fees, leading
to the time and attention of the Court being diverted from genuine and crucial matters.
 Potential for judicial overreach, which violates the doctrine of separation of powers.
 Inordinate delays in the disposal of PIL cases.

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ALTERNATIVE DISPUTE RESOLUTION (ADR)
WHAT IS ADR?
 Conflict management via a mechanism of dispute resolution that is alternative to traditional
adversarial litigation.
 Dispute resolution in cost-effective manner and with increased efficacy (promotes working
together co-operatively, reducing hostility and reaching solution optimum for both parties.)
 Generally, neutral third party helps parties to communicate, discuss differences and resolve
dispute.
 The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements,
The Arbitration and Conciliation Act was enacted in 1996 and was significantly amended
in2019.
“It is the spirit and not the form of law that keeps the justice alive.” ~ LJ Earl Warren
WHY ADR?
 Not just an alternative means, but an additional method that is utilized by courts to ease the
burden of pending cases. (The Court also orders mediation between parties in some cases so
that the burden of the courts may be relieved and the parties may come to a compromise
amongst themselves under Section 89 of the Civil Procedure Code)
 Provides scientifically developed techniques – reduces burden on the judiciary.
 Urgent need to clear mounting backlog of cases. (speedier process as formal court
proceedings are avoided.)
 Make litigation affordable to the ordinary people. (less expensive than going to court; saves
stress of court appearances for common man.)

34

35
LOK ADALAT
 A non-adversarial system based on Gandhian principles – known as People’s Courts;
 Assumed statutory recognition under Legal Services Authority Act, 1987.
ISSUES
 Though it is true that “Justice delayed is justice denied”, it is also true that “justice hurried is
justice buried.”
 System of Lok Adalats is based on compromise and settlement – if parties do not arrive at
consensus:
 Case is returned to the court of law;
 Unnecessary delays in the dispensation of justice.
 Members other than Chairman are persons without a legal background, even in Permanent
Lok Adalat.

36
 Judges are pressured to quickly dispose of the cases for political gains:
 Limited consideration to the parties 'rights and needs.
 Provisions of Code of Civil Procedure and the Indian Evidence Act not strictly applicable:
 Decisions made only if element of settlement exists.
 Decisions will be in a summary manner.
 If parties do not settle, Permanent Lok Adalat shall decide the dispute.
SOLUTIONS
 Legal Awareness
 Accessible legal literacy/ legal aid programs for the marginalized.
 Awareness camp sat grassroot level.
 Mass media coverage to encourage public approach to Lok Adalats.
 Expanded Jurisdiction
 Inclusion of business disputes or conflicts where the public at large are involved.
 More Lawyers
 Improved quality of legal aid.
 Incentivizing lawyers to provide effective legal assistance to the needy, e.g., Increasing
renumerations.
 Cultural & Structural Reforms
 Balance between formal and informal forum to encourage public.
 Mobilization of resources - staff, funding and facilities – enhance structural soundness of Lok
Adalats.
 Including specialists of concerned disputes.
 Free legal training to social workers to prevent exploitation of poor by lawyers.
 Encouraging referral to Lok Adalats to increase awareness and reduce prejudice against it.
LEGISLATIONS OF ADR IN INDIA

 Section 89 of the Civil Procedure Code, 1908 - if it appears to court there exist elements of
settlement outside the court then court formulate the terms of the possible settlement and
refer the same for:

37
 Arbitration,
 Conciliation,
 Mediation or Lok Adalat.
 Arbitration and Conciliation Act, 1996 - modernization of The Arbitration Act, 1940, which
dealt with only domestic arbitration.
 The Legal Services Authority Act, 1987 - passed in 1987 to encourage out-of-court settlements;
 To provide free and competent legal services to the weaker sections of the society to ensure
that opportunities for securing justice are not denied to any citizen.
ADVANTAGES
 Less time consuming: people resolve their dispute in shorter periods as compared to
traditional litigation in courts, which may take years
 Cost effective:
 It saves lot of money if one undergoes in litigation process.
 Informal:
 It is free from technicalities of courts resulting in fewer procedural delays; people are
free to express themselves without any fear or intimidation.
 Efficient:
 There are always chances of restoring relationship back as parties discuss their issues
together on the same platform.
 Preserves the best interests of parties and prevents further conflict and souring of
relationships.
 Specialized expertise can be made available on the tribunal in order to facilitate the most
appropriate outcome.
DISADVANTAGES
 Several issues like admitted liability, divorce, granting of probates etc. cannot be referred to
arbitration.
 Can only be adopted when there is no statutory bar and further if parties mutually agree.
 Quality of ADR depends on the arbitrator/mediator it;

38
 Depending on arbitrator, it sometimes proves to be more costly than court litigation

(Arbitration and Conciliation Act in this regard provides for the Court's intervention at
the appropriate situation so that ADR is not misused resulting in miscarriage of justice.
 Further, due to parties often appealing Arbitral Awards before Courts, Commercial
entities are beginning to view Arbitration as a wasted exercise that is costly and time
consuming)
 Hurdles in the effective implementation of ADR are many which include the following:
 Lack of appropriate arbitrators (very often, retired judges are appointed as arbitrators,
which results in arbitrators assuming the adversarial form of dispute resolution which
they are comfortable with. This is viewed unfavorably, especially since the arbitrators
often lack the expertise to resolve complex factual disputes in international
commercial arbitration).
 Lack of infrastructural facilities.
 Lack of awareness and legal literacy
WAY FORWARD
 There is a lack of awareness about the availability of ADR mechanisms.
 The National and State Legal Services Authorities should disseminate more information
regarding these, so they become the first option explored by potential litigants.
 Requisite infrastructure should be provided, and institutional framework put to place to
achieve goals of adoption of ADR mechanisms.
 ADR centers should be created for settling disputes out-of-court.
 The award should be made binding on the parties and no appeal to the court should be
allowed unless itis arrived at fraudulently or if it against public policy (will make sure that ADR
is binding and prevent delay of implementation of the award.)
 Several online ADR platforms have been launched such as SAMA and ADR-ODR International
which facilitate dispute resolution online. These platforms must be encouraged and given
official recognition, so that Courts may take their assistance in referring cases to ADR.

MAINS CRASH
COURSE
POLITY: THEME 4
4 Comparison of the Indian
Constitutional Scheme with that
of Other Countries
Atish Mathur
1
POLITY THEMES
S.NO. THEME
1 Indian Constitution—Historical Underpinnings, Evolution, Features,

Amendments, Significant Provisions and Basic Structure
Pertaining to the Federal Structure, Devolution of Powers and Finances up to
Local Levels and Challenges Therein.
3 Separation of Powers between various organs Dispute Redressal Mechanisms and
Institutions.
4 Comparison of the Indian Constitutional Scheme with that of Other Countries.

6 Structure, Organization and Functioning of the Executive and the

Judiciary—Ministries and Departments of the Government
7 Salient Features of the Representation of People’s Act.
8 Appointment to various Constitutional Posts, Powers, Functions and

Responsibilities of various Constitutional Bodies.
9 Statutory, Regulatory and various Quasi-judicial Bodies.

2
Year Ques [marks/ no. of words] Context
2018 Indian and USA are two large democracies. Examine the basic India and US President
tenets on which the two political systems are based. [15/250] Election
2019 What can France learn from the Indian Constitution’s approach
to secularism? [10/150]
2020 The judicial systems in India and UK seem to be converging as

well as diverging in the recent times. Highlight the key points of
convergence and divergence between the two nations in terms
of their judicial practices. [10/150]

3
FORMS OF GOVERNMENT
B R EA KI NG DOWN B A S IC S
 Democratic System of governance is broken down into two basic forms: Parliamentary and
Presidential forms.
 Systems with features of both forms also exist as hybrids.
WHAT IS PRESIDENTIAL FORM OF GOVERNMENT?

 Form of governance in which a head of government leads an executive branch that is
 separate from the legislative branch.
 The Head of State is also the designated Head of Government – and is called the President.
 Executive is constitutionally independent of Legislature.

 Presidentialism is the dominant form of governance in mainland Americas – 19 out of 22
sovereign states – and is also widespread in Central Asia, Central and Southern West Africa.
The only republics to follow this system
in Europe are Belarus and Cyprus.
 The United States of America is the

perfect example of Presidential
governance.
 Each of the three branches – judiciary,

executive and legislative – are
independent of the others, deriving
authority from the constitution.
FEATURES OF PRESIDENTIAL FORM OF GOVERNANCE

 Separation of Powers: Executive and Legislature are at par. Neither President nor Cabinet
members are part of/responsible to Legislature.
 System of Checks and Balances exists in the following forms –
 Executive in form of the President has Veto power over Legislative.
 Legislature is enabled with power to remove President by the process of
impeachment.
 Judiciary – Supreme Court – has the power to declare the Legislature’s laws,
and Presidents orders as unconstitutional.

4
 Single Executive: Unlike Parliamentary form, here the President is the real Head of State as
well as Head of Government. There is no concept of a titular/nominal Head.
 Prominent Position: President occupies a pre-eminent position in the Government and has
subordinate members of Cabinet whose advice he may accept or reject.
 Fixed Term: Removal before completion of the President’s fixed term is possible only
through impeachment on the basis of constitutional violation.
MERITS & DEMERITS OF PRESIDENTIAL FORM
Merits Demerits
Separation of Powersensures each organ its Risk of being a despotic nature of

Individual liberty giving no single organ superior governance, as President is not answerable
powers. to the Legislature.
Presidential system is speedy and responsive in Since Cabinet secretaries are appointed
directly by the President, personal loyalty
emerging situations. and ties play an important role.
Prompt decisions can be taken because the

Expertise and merit might take a backseat in
President is not constrained by directions of the case of such appointments
Cabinet or Legislature.
Efficient administration without influence of Conflict between Executive and Legislature

political parties, as Presidency is not dependent on in case opposition dominates the latter. This
majority support from the legislature. can lead to hampering of public interest.
Impeachment is a complex and time-

consuming procedure which can be
resorted to only in
emergency situations.
WHAT IS PARLIAMENTARY FORM OF GOVERNMENT?
 The form wherein executive is selected from among the members of the legislature and is
responsible to the legislature is called Parliamentary government.

5
 A.k.a. Cabinet form of Government as the real executive power lies with the Cabinet.
 Executive is held accountable by Legislature. Due to this feature, it is also called
“Responsible Government”.
 India’s current Parliamentary form of governance is an inheritance from its colonial past.
 Parliamentary governments can either be constitutional monarchies (United Kingdom
etc.) or
 parliamentary republics (Italy, Germany, Ireland etc.)
 Parliamentarianism is the most common form of governance in Europe, in the Caribbean etc.
and throughout the world, usually in former
colonies of the British Empire.
 Westminster model of Parliamentary

governance – a system incorporating three
arms of government - the executive, the
legislature and an independent judiciary – is
found in most former colonies including
India.
FEATURES OF PARLIAMENTARY FORM
 Houses of Parliament: Parliamentary governments can be either bicameral (two houses of

parliament) or unicameral; most parliamentary democracies follow bicameral legislature.
 Accountability of Executive: The executive – Prime Minister and ministers – emerge from
Legislature (Parliament) and are therefore always answerable to the Legislative.
 Dual Executive: There is a nominal, or a titular executive, the President (or monarch etc.) –
Head of State – and a real executive, the Prime Minister – Head of Government.
• The Prime Minster is the acknowledged head of the Parliamentary system.
 Oath of Secrecy: Whatever is discussed in the cabinet stays in the cabinet. Divulsion of
information can cost a Cabinet Minster his/her seat.
 The Parliamentary system is dealt with under Article 74 and Article 75 when it comes to
Centre.
 The State Parliamentary system is highlighted under the articles 163 and 164.
 In our Parliamentary system, the Prime Minister is the senior-most minister of cabinet of the
executive.
 Members of Cabinet are selected by the PM and may be dismissed by him.

6
 Executive powers are exercised by Union Council of Minister while the Union Cabinet, a
smaller body, is the supreme body of executive powers: According to Article 75, Union
Cabinet members are the Prime Minister and ministers of the rank of cabinet minister.
 Chief differences from the British Parliamentary system which we emulated –
• Appointed Speaker formally resigns from previous party unlike India where party
membership continues and yet the Speaker must remain unbiased.
• Absence of a ‘shadow cabinet’ to monitor and criticize the majority government,
keep them in check.
MERITS & DEMERITS OF PARLIAMENTARY FORM
Merits Demerits
Less delay in passing laws etc, as Executive Unclear separation of powers – Legislators
forced to follow party whip especially in case of a
comes from Legislative. large majority in the House.
Circumvents authoritarianism by holding Unnecessary interference of Legislators in

Executive accountable; powers are not administrative matter causing inefficiency of
concentrated in one mind. both Executive and Legislative.
Diversity of parties – educative value – public Vote Bank Politics as a result of competition
builds opinions based on different party between various parties results in a Government
manifestos. that tends to be Election Centric.
Relying on majority party, experts in the field are

Easy availability of an alternate government not hired for inputs on executive duties.
Ministers may be underqualified, making them
shows the flexibility of this system. dependent on civil servants hence creating a
‘bureaucratic government’.

7
COMPARATIVE ANALYSIS: PRESIDENTIAL & PARLIAMENTARY FORMS
FEATURES Parliamentary Presidential
Executive Dual Executive Single Executive
Relationship b/w Executive and Executive is accountable to Both are independent and
Legislative the Legislative as it comes Executive is not accountable.
from the latter.
Tenure Unfixed Fixed
Dissolution Prime Minister may President cannot dissolve the

Lower House.
dissolve the Lower House
before expiration of term.
CABINET
 By definition, a cabinet is a body of high-ranking State officials – like leaders of executive

branch.
 Functions of Cabinet may vary between decision making bodies with collective
responsibility and purely advisory bodies that are assistant to Head of State/Government.
 The term used for Cabinet differs across countries. The Cabinet is known by names such as
"Council of Ministers", "Government Council" or "Council of State", or by lesser-known
names such as "Federal Council" etc.

8
ROLE OF CABINET
PARLIAMENTARY SYSTEM PRESIDENTIAL SYSTEM
Collectively decides the government's direction, Official role of Cabinet is that of official
usually in regard to legislations passed by the advisory council to the head of
parliament. Government – President receives advice and
opinions.
Monarch/Ceremonial Head of State virtually President can depart from Cabinet’s advice as
always acts on advice of Cabinet. seen fit by him.
On ground, the Cabinet reports to real Head of Cabinet works directly under and for the
Government – usually the Prime Minister – President who is both Head of Government and
rather than the titular Head of State. State.
The Cabinet in a parliamentary system must not Members of the Cabinet are chosen
only be confirmed, but enjoy the continuing directly by President, they may or
confidence of the Parliament. may not have to be confirmed by Legislation.
Cabinet influences Legislative policy to a large Members of Cabinet focus on and have
massive influence in their own Executive
extent.
departments.
In conclusion, a Cabinet is found in almost all forms of Government, the two major ones –
Presidential, Parliamentary – and other hybrid versions such as semi- Presidential system etc. The
members are responsible for daily management of the Government, response to emergency
situations and sudden events. They play an important role in any form of Governance and help to
keep things running smoothly.

MAINS CRASH
COURSE
POLITY: THEME 5
Parliament and State
Legislatures—Structure,
Functioning, Conduct of Business,
Powers & Privileges and Issues
Arising out of these
Atish Mathur
1
POLITY THEMES
S.NO. THEME


Institutions.

Powers & Privileges and Issues Arising out of these

and Departments of the Government

various Constitutional Bodies.

2
Year Marks/ Questions

words
2013 10/200 Role of individual MPs has diminished over the years and as a result healthy
constructive debates are not usually witnessed. How far can this be attributed
to anti defection law which was legislated but with a different intention?
2014 12.5/200 The ‘Powers, Privileges and Immunities of Parliament and its Members’ as
envisaged in Article 105 of the Constitution leave room for a large number of
un-codified and un-enumerated privileges to continue. Assess the reasons for
the absence of legal codification of the ‘parliamentary privileges’. How can
this problem be addressed?
2017 10/150 Discuss the role of Public Accounts Committee in establishing accountability
of the government to the people.
2017 15/250 The Indian Constitution has provisions for holding a joint session of the two
houses of the Parliament. Enumerate the occasions when this would normally
happen and also the occasions when it cannot, with reasons thereof.
2018 10/150 Why do you think the committees are considered to be useful for
parliamentary work? Discuss, in this context, the role of the Estimates
Committee.
2019 15/250 Individual parliamentarian’s role as the national lawmaker is on a decline,

which in turn, has adversely impacted the quality of debates and their
outcome. Discuss.
2020 10/150 Once a speaker, Always a speaker’! Do you think the practice should be
adopted to impart objectivity to the office of the Speaker of Lok Sabha? What
could be its implications for the robust functioning of parliamentary business
in India.
2020 15/250 Rajya Sabha has been transformed from a ‘useless stepney tyre’ to the most
useful supporting organ in past few decades. Highlight the factors as well as
the areas in which this transformation could be visible.

3
Focal Areas
 Anti-Defection Law
 Parliamentary Committees
 Parliamentary Efficiency
 SLC Review

4
ANTI-DEFECTION LAW
INTRODUCTION
The anti-defection law was passed in 1985 through the 52nd Amendment to the Constitution. The
Amendment added the Tenth Schedule to the Indian Constitution, with an intent to curb “the evil of
political defections”. Under the anti-defection law, legislators may be disqualified from their
membership to the House if they resign from their party after being elected, or defy the direction
issued by the party leadership during a vote on any issue.
ADL: Context
• Jignesh Mewani, an independent MLA from Gujarat, has said he has joined the Congress “in
spirit” as he could not formally do so, having been elected as an independent.
• In West Bengal, a disqualification petition against Mukul Roy, BJP MLA now back in the
Trinamool Congress, was been pending with the Assembly Speaker since June 2021. He had
contested and won the 2021 Assembly elections on a BJPticket and then joined the Trinamool
Congress. Calcutta HC had to intervene by referring to a SC order.
• In Jharkhand, former CM Babulal Marandi faces such proceedings after merging his party,
Jharkhand Vikas Morcha (Prajatantrik), with the BJP
• In Rajasthan, six Bahujan Samaj Party(BSP) MLAs have merged their legislature party with the
ruling Congress, a move challenged by the BSP, and the Supreme Court recently gave the six
MLAs a final opportunity to explain the merger
• In Lok Sabha, two Trinamool and one YSR Congress Party MPs face proceedings. The
Trinamool Congress wants to disqualify its two MPs (one of them is Sisir Adhikari, father of
Suvendu) for joining the BJP, and the YSRCP wants to disqualify its MP for “anti-party
activities”.
• In 2019 in Goa, 10 of the 15 Congress MLAs merged their legislature party with the BJP. In the
same year, in Rajasthan, six BSP MLAs merged their party with the Congress (the case being
heard in the Supreme Court), and in Sikkim, 10 of the 15 MLAs of the Sikkim Democratic Front
have joined the BJP.
• In 2020, the Supreme Court (Keisham Meghachandra Singh v. Manipur Legislative Assembly)
dismissed a minister in Manipur when the Speaker did not decide the defection petition
against him even after three years. The court held that ideally, Speakers should take a decision
on a defection petition within three months.
• A private member bill has been introduced by KTS Tulsi in the 2021 winter session in the RS to
amend the law by imposing a 3 months deadline to decide Anti Defection Cases.

5
EVOLUTION OF THE LAW
 1967-1972: 2000 cases of defection and counter-defections amongst 4000 MPs and MLAs
 1967: 116/210 defected legislators became Ministers
 50% legislators changed parties minimum once

 Constitutional Amendment Bills were floated in 1973 but failed to pass
 Finally, the 52nd CA marked the beginning of the Anti-Defection law

6
WHAT DOES THE ANTI – DEFECTION LAW SAY?
 The anti-defection law deals with situations of defection in Parliament or state legislatures by:
(i) members of a political party,

(ii) independent members, and
(iii) nominated members.
 In limited circumstances, the law allows legislators to change their party without incurring the
risk of disqualification.
WHY WAS THE ANTI – DEFECTION LAW ENACTED?
Two key arguments have been used to justify an anti-defection law.

Firstly, it intends to combat political defections fueled by political corruption and bribery.
 In the years preceding the passage of the anti-defection law, it was noted that legislators were
often given the lure of executive office, or promised personal benefits, in order to encourage
them to defect from their party.

7
 Minister YB Chavan (1969) to examine the need for an anti-defection law, noted that out of
210 defecting legislators of various states in India, 116 were given ministerial positions in the
new government which they helped form. It recommended that for defections that were
fueled by monetary gains or by the lure for political office, the defectors should not only be
barred from office, but should also be barred from standing in future elections for a
prescribed time period.
Secondly, defections flout the voters’ mandate.
 This argument is based on a recognition of the role of political parties in the parliamentary
system. The argument is that most candidates are elected on the basis of the party which
gives them a ticket
 The party also arranges for election expenses of the candidate and the candidate fights the
election based on the manifesto of the party. Therefore, when a member defects from the
party, he betrays the fundamental trust based on which people elected him to power.
CONTENTIOUS ISSUES
 Does the law, while deterring defections, restrict a legislator from voting as per his conscience
and erode his independence?
 Does the law lead to suppression of healthy intra-party debate and dissent?
 Does it restrict representatives from voicing the concerns of their voters in opposition to the
official party position?
 Should the decision on defections be judged by the Speaker who is usually a member of the
ruling party or coalition, or should it be decided by an external neutral body such as the
Election Commission?
EFFECT OF ANTI – DEFECTION LAW ON THE ROLE OF A LEGISLATOR

 The anti-defection law provides for disqualification of a legislator if he votes contrary to the
party whip.
 As a result, members are compelled to obey the party whip, in order to avoid losing their seat
in the House. The law raises questions on the role of a legislator.
 It restrains legislators from expressing their conscience in the House.
 It breaks the link of accountability between the voter and the elected representative.
 It disturbs the balance of power between the executive and the legislature, by constraining
the ability of a member to hold the government accountable.

8
 It leads to major decisions in the House being taken by a few party leaders and empowers
party leaders to compel legislators to vote as per their instructions.
HOW HAS THE ANTI – DEFECTION LAW COMPROMISED THE ROLE OF A LEGISLATOR?
 In a parliamentary system, legislators are expected to exercise their independent judgement
while determining their position on an issue.
 The choice of the member may be based on a combination of public interest, constituency
interests, and party affiliations.
 This fundamental freedom of choice could be undermined if the member is mandated to vote
along the party line on every Bill or motion
 Even if the member has an opinion that differs from his party leadership, he does not have the
freedom to vote as per his choice.
 For example, in a discussion on river water sharing between states, MPs representing
constituencies in different states may be forced to vote in a unanimous manner, despite
holding divergent views, in order to avoid the risk of disqualification from office.
HOW HAS THE ANTI – DEFECTION LAW AFFECTED A LEGISLATOR’S ABILITY TO HOLD THE
GOVERNMENT ACCOUNTABLE?
 One of the key features of a parliamentary democracy is that the government is accountable
for its decisions to Parliament. This accountability is tested through questions posed to
Ministers, discussions on various government policies, and by debating national issues. The
directly elected House may even dismiss the government by way of a no confidence motion.
 However, the anti-defection law deters a legislator from his duty to hold the government
accountable, by requiring him to follow the instruction of the party leadership on almost every
decision. Therefore, he may debate and dissent from his party position on an issue in
Parliament but will still be compelled to vote as per the instruction of the party whip. This may
raise a question on the redundancy of debate on issues in the House.
 For example, in December 2012, there was a vote in Lok Sabha on whether 51% foreign direct
investment should be allowed in multi-brand retail. During the vote, all the members of the
Congress party in the House voted for the policy and all the members of the BJP voted against
the policy. It is unlikely that all legislators from a party had an identical stance on an issue with
such wide-ranging implications.
 By definition, the party or coalition in power has the majority of the membership in Lok Sabha.
By prohibiting dissent, the anti-defection undermines the system of executive accountability
to the legislature and gives the executive control over Parliament on all votes. As a result, the
legislator is no longer empowered to act as an effective check on the government of the day.

9
HOW HAS THE ANTI – DEFECTION LAW AFFECTED A CITIZEN’S ABILITY TO HOLD HIS ELECTED
REPRESENTATIVE ACCOUNTABLE?
 The anti-defection also law breaks the chain of accountability between elected
representatives and the voter. In India, citizens choose their member for a period of five
years. During this term, they can judge the performance of the member based on his
parliamentary record.
 For example, a citizen may have a strong opinion on the issue of land acquisition. He may
convey this opinion to the legislator and ask him to vote in a particular way. The legislator will
have to justify his decision if he differs from such view. Thus, citizens have the opportunity to
have their views represented in the legislature, and if they feel the legislator has failed to do
so, they can express their displeasure or even vote out the representative in the next election.
 However, under the anti-defection law this accountability mechanism breaks down. Every
member is required to vote as per the direction issued by their party. He can easily justify his
voting decisions and absolve himself of this representational responsibility to his voters by
merely saying that the party whip compelled him to vote in a particular way.
 For example, there may be a vote on a Bill in Parliament to regulate fish trawling, given its
environmental impact. An MP representing a coastal constituency where large-scale fish
trawling supports the local economy, may be required to vote in favour of a Bill, if a party whip
is issued. If a voter from his constituency asks him to justify his support on the issue, the MP
may say he had no choice given the anti-defection law. If he dissented from the party line, he
would lose his seat, and would be unable to work for the citizens’ interests on other issues.
This further reduces the accountability of elected representatives to citizens.
HOW HAS THE ANTI – DEFECTION LAW IMPACTED DECISION-MAKING IN THE HOUSE?
 The anti-defection law leads to major decisions in the legislature being taken by a few party
leaders and not by the larger body of legislators. In India, political parties frequently issue
whips on matters which are subject to a vote in Parliament. This implies that anyone who
controls the party leadership can issue directions to all legislators. Thus, voting in the House
will be as per the wishes of a few party leaders rather than the beliefs of all legislators.
 This reduces Parliament from a deliberative body to one where party leaders are able to
unilaterally decide the vote on an issue, without consulting with members of their political
party. As a result, to win a motion in Parliament, the government is only required to consult
with leaders of the major political parties in the House. This number for consensus may further
be reduced if a single party has majority in the House. For example, if the ruling party has a
majority in the House and the party leader issues a whip during a vote on an issue, the
government’s policy can be upheld without needing to build support of any other MPs within
the party or outside

10
HOW DO OTHER DEMOCRACIES DEAL WITH THE QUESTION OF POLITICAL DEFECTIONS?
 The issue of political defections is not unique to India. Mature democracies, such as the US,
UK, and Canada, do not have an anti- defection law. Parties may issue directions or exert
pressure if a member goes against the party line. However, legislators are not disqualified for
defying the directives of their party. For example, whips are often issued by political parties
in the UK. If an individual MP or MLA defies the whip, they continue to retain their
membership to the legislature (although the party may take disciplinary action against them).
 Currently, among the 40 countries that have an anti-defection law, only six countries have a
law that mandates legislators to vote according to party diktat.
 The remaining countries only disqualify legislators if they are found to resign from their party
or be expelled from it.
 Only 6 countries disqualify legislators who defy party whip - India, Pakistan, Bangladesh,
Guyana, Sierra Leone and Zimbabwe
HAS THE ANTI – DEFECTION LAW ACHIEVED ITS OBJECTIVE OF ENSURING POLITICAL STABILITY?
 Whips have been regularly defied in both Centre and States on important votes affecting
government stability.
 2008 Confidence Motion (Centre) : A confidence motion was moved by the United
Progressive Alliance government in Lok Sabha in July 2008.The motion was necessitated since
the Communist Party of India (Marxist) withdrew support from the government over the
nuclear deal with the USA. Although the anti-defection law was in force, 21 MPs defied the
whips issued by their party while voting on the motion.
 2016 Appropriation Bill (Uttarakhand) : Nine MLAs of the ruling party sided with the with the
opposition in demanding a counting of votes on an Appropriation Bill that could have
potentially led to the downfall of the Congress government.
 2015 No-Confidence Motion (Arunachal Pradesh) : In 2015, 20 Congress (ruling party) MLAs
defected in Arunachal Pradesh. These MLAs with the opposition passed a no-confidence vote
against the ruling government in a special session. In 2016,the Supreme Court held the
dismissal of the Congress government as illegal and called for its restoration.
HAS THE LAW ENSURED IMPARTIAL DECISIONS ON DEFECTIONS?
 There have been several instances where the anti-defection law has failed at achieving these
objectives. As the law does not fix a time frame within which presiding officers are required
to decide disqualification petitions, in several cases, the Speaker has rendered decisions after
a long period of time. In some cases, the delay in rendering decisions has resulted in defecting

11
members continuing to be members of the House for a significant term of the assembly and
even becoming Ministers while still retaining membership of their original political party.
 Andhra Pradesh: 23 YSR Congress Party MLAs defected to the ruling Telegu Desam Party from
2015-18. No action was taken by the Speaker on the petitions seeking their disqualification.
Further, four of these legislators were appointed as Ministers in the government.
 Telangana: 26 MLAs defected from opposition parties to Telangana Rashtriya Samiti from
2014-18. No action was taken by the speaker against these defectors. Out of these defect ors,
12 were made Ministers.
 This has defeated the objective of expeditious disposal of defection petitions. Over the years,
courts have also expressed concern about the delay in deciding such petitions.
 Rajya Sabha Chairman has recommended that all disqualification petitions should be decided
by the presiding officer within three months
 The Law Commission (2015) noted that the Speaker is elected by a majority vote of the House
and is usually the nominee of the ruling party or coalition.

12

13
PRIVATE MEMBER BILLS
Context
• Winter Session: November 29, 2021 – December 23, 2021 :
• 26 Bills are listed for introduction, consideration, and passing
• 15 Pvt Mem Bills in RS and 10 in LS have been introduced
 Academic Integrity
 Universal Health Care

 Population Control
• 5 private member bills seek to amend the Constitution

 Preamble Amendment
 Anti-Defection
 Increasing LS, RS seats, UT representation to LS, women reservation
 Representation to Chandigarh at RS
 Contempt
Private Member Bills

• Every Member of Parliament, who is not a Minister, is called a Private Member. Private
Members’ Bills are Bills introduced by these MPs.
• In Lok Sabha, the last two and a half hours of a sitting on every Friday are generally allotted
for transaction of Private Members’ Business, i.e., Private Members’ Bills and Private
Members’ Resolutions.
• Till date, Parliament has passed 14 Private Members’ Bills. Six of these were passed in 1956
alone.
• The last Private Members’ Bill passed by Parliament was ‘The Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Bill, 1968’ that became an Act on 9th August, 1970.
• A party’s average per head contribution of Private Members’ Bills usually decreases when it
forms the Government.

14
PROCEDURE
• Given the large number of Bills introduced each session, selection for discussion is done
through ballot
• The Committee on Private Members’ Bills and Resolutions classifies the Bills according to their
nature, urgency and importance.
• The House then decides the relative precedence in each category.
PARLIAMENTARY PRIVILEGE
• Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an institution

and MPs in their individual capacity, without which they cannot discharge their functions as
entrusted upon them by the Constitution.
• According to the Constitution, the powers, privileges and immunities of Parliament and MP's
are to be defined by Parliament
• No law has so far been enacted in this respect. In the absence of any such law, it continues to
be governed by British Parliamentary conventions.
• A breach of privilege is a violation of any of the privileges of MPs/Parliament. Among other

things, any action 'casting reflections' on MPs, parliament or its committees; could be
considered breach of privilege. This may include publishing of news items, editorials or
statements made in newspaper/magazine/TV interviews or in public speeches.
THE PRIVILEGES AND IMMUNITIES ENJOYED BY AN MLA OR MP?
• The privileges and immunities enjoyed by the MPs and MLAs include:
1. Freedom of speech in the house which means they cannot be prosecuted for saying or doing
anything in the house.
2. They have the freedom from arrest 40 days prior or after a session of legislature or during
the session or from the premises of the legislature without the permission of the house.
3. The legislature has the power to regulate its internal affairs — that covers the behaviour
including disruptions, vandalism and violence — of the house. Police or courts cannot
interfere.
• However, the members can be punished for the breach of privileges by the house itself.
Punishment includes imprisonment, fine or suspension.

15
CONSTITUTIONALITY OF PRIVILEGES & IMMUNITIES
1. The powers, privileges and immunities of Parliament and its members and committees are laid
down in Article 105 of the Constitution. Article 194 deals with the same in the case of state
legislatures, their members and committees.
2. The elected representatives can claim these privileges only during the period for which the person
is a member of the house.
3. The argument has been that privileges and immunities are necessary for exercising constitutional
functions.
• The house can ensure attendance of the offending person. The person can be given a warning
and let go or be sent to prison as the case may be.
• In 1967, two people were held to be in contempt of Rajya Sabha, for having thrown leaflets
from the visitors' gallery. In 1983, one person was held in breach for shouting slogans and
throwing chappals from the visitors' gallery. They were sent to prison.
• In the 2007 case of breach of privilege against Ambassador Ronen Sen, the Lok Sabha
Committee on privileges held that the phrase "headless chicken" was not used by Shri Sen in
respect of MPs or politicians. No action was taken against him
• In 2008, an editor of an Urdu weekly referred to the deputy chairman of Rajya Sabha as a
"coward" attributing motives to a decision taken by him. The privileges committee held the
editor guilty of breach of privilege.
• The Monsoon Session was the third least productive Lok Sabha session of the last two
decades
• The worst Session in terms of productivity for both Houses was the Winter Session of 2010.
(2G)
• The Winter Sessions of 2013 and 2016 were the second worst-hit in terms of productivity.
(Telangana & Demonetisation)
• March 2020, seven Congress MPs — Gaurav Gogoi, T N Prathapan, Manickam Tagore, Gurjeet
Singh Aujla, Benny Behanan, Rajmohan Unnithan, and Adv. Dean Kuriakose — were
suspended from Lok Sabha for the rest of the Budget Session. They were accused of snatching
papers from the Speaker’s table as the Opposition strongly demanded a discussion on the
Delhi riots.
2021 SC Judgment
• It does not directly deal with Parliament but with state legislatures

16
• The Supreme Court ruled elected representatives could no longer go scot-free for acts of
vandalism and violence committed inside a house claiming immunity provided under the
Constitution.
• The Supreme Court judgment takes away the protection of privileges and immunities making
elected representatives liable for prosecution for their acts
• The Supreme Court observed that “destruction of property in the assembly cannot be
equated to freedom of speech in the house”.
• “Privileges and immunity are not a gateway to claim exemptions from criminal law and that
would be a betrayal to the citizens.”
• “The purpose of bestowing privileges on legislators is to enable them to perform their

legislative functions without hindrance or without fear or favour Legislators should act within
the parameters of the public trust imposed on them to do their duties.”
SOLUTIONS
• ‘Parliament Disruption Index’. The idea had emerged at the conference of presiding offices of
legislative bodies in Dehradun on November 2019 in the backdrop of increasing disruptions in
Parliament.
• Automatic suspension of members who cause disruption.

17
PARLIAMENTARY COMMITTEES
WHAT ARE THE PARLIAMENTARY COMMITTEES?
 Parliament scrutinies legislative proposals (Bills) in two ways:

 By discussing it on the floor of the two Houses. All bills have to be taken up for
debate on the floor of the House, as a legislative requirement;
 By referring a bill to a Parliamentary Committee.
 A Parliamentary Committee is a committee that:

 Is appointed or elected by the House or nominated by the Speaker/Chairman;
 Works under the direction of the Speaker/Chairman;
 Presents its report to the House or to the Speaker/Chairman; and

 Has a secretariat provided by the Lok Sabha/Rajya Sabha.
CONSTITUTIONAL PROVISIONS
 In independent India, the first Public Accounts Committee was constituted in April 1950.
Parliamentary committees draw their authority from:
 Article 105 (on privileges of Parliament members) and,

 Article 118 (on Parliament’s authority to make rules for regulating its procedure and conduct
of business).

18
On the basis of the nature of functions performed by them, Standing Committees can be classified
into 6 categories:
Financial Committees • Public Accounts Committee (100 years in 2021)
• Estimates Committee
• Committee on Public Undertaking
Departmental Standing
Committees (24)
Committees to Inquire • Committee on Petitions
• Committee on Privileges
• Ethics Committee
Committees to Scrutinize • Committee on Government Assurances

and Control
• Committee on Subordinate Legislation
• Committee on Papers Laid on the Table
• Committee on Welfare of SCs and STs

• Committee on Empowerment of Women
• Joint Committee on Offices of Profit
Committees Relating to • Business Advisory Committee

the Day-to-Day Business
• Committee on Private Members’ Bills and Resolutions
of the House
• Rules Committee
• Committee on Absence of Members from Sittings of the

House
House-Keeping or • General Purposes Committee

Service Committees
• House Committee
• Library Committee
• Joint Committee on Salaries and Allowances of Members

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PURPOSE OF PARLIAMENTARY COMMITTEES
 A Parliamentary committee focuses on remedying the legislative infirmity of debate on the

floor of the House. Given that the House meets for less than 100 days, which does not leave
enough time to discuss every Bill in detail on the floor of the House, and further, such debates
are political and do not focus on the technical details of the bill.
 A Parliamentary committee discharges the important function of making the administration

accountable to the Parliament.
 Parliamentary Committees offer:
 Efficiency and transparency

 Expert knowledge in law making
 Inclusive participation of members from opposition
 Unbiased and objective discussion above party lines
 There are three broad paths by which a Bill can reach a Parliamentary Committee:
 The minister introducing the Bill recommends to the House that his Bill be examined
by a Select Committee (Committee of one House i.e., either Lok Sabha or Rajya Sabha)
of the House or a Joint Committee of both Houses.
 The presiding officer of the House can also send a Bill to a Parliamentary Committee.
 A Bill passed by one House can be sent by the other House to its Select Committee.
 A Committee’s report is recommendatory nature and is not binding on the Government. The
Committee can also suggest its own version of the Bill.
DATA POINTS
 In the last 10 years, Parliament met for 67 days per year, on average. This is a short of amount
of time for MPs to be able to get into the depth of matters being discussed in the House.
 Parliament deliberates on matters that are complex, and therefore needs technical expertise
to understand such matters better. Committees help with this by providing a forum where
Members can engage with domain experts and government officials during their study.
 For example, the Committee on Health and Family Welfare studied the Surrogacy (Regulation)
Bill, 2016 which prohibits commercial surrogacy, but allows altruistic surrogacy. As MPs come
from varying backgrounds, they may not have had the expertise to understand the details
around surrogacy such as fertility issues, abortion, and regulation of surrogacy clinics, among
others. The Committee called upon a range of stakeholders including the National
Commission for Women, doctors, and government officials to better their understanding of
the issues, before finalizing their report.

20
 Committees also provide a forum for building consensus across political parties. The
proceedings of the House during sessions are televised, and MPs are likely to stick to their
party positions on most matters. Committees have closed door meetings, which allows them
to freely question and discuss issues and arrive at a consensus.
 After a committee completes its study, it publishes its report which is laid in Parliament. These
recommendations are not binding; however, they hold a lot of weight. For example, the
Standing Committee on Health made several recommendations to the National Medical
Commission Bill in 2017. Many of these were incorporated in the recently passed 2019 Bill,
including removing the provision for allowing a bridge course for AYUSH practitioners.
For example, the Consumer Protection Act, 2019, overhauling the 1986 law, was recently during the
previous Budget Session. An earlier version of the Bill had been examined by the Committee on Food
and Consumer Affairs, which suggested several amendments such as increasing penalties for
misleading advertisements, making certain definitions clearer. The government accepted most of
these recommendations and incorporated them in the 2019 Act.
Besides Bills, the DRSCs also examine the budget. The detailed estimates of expenditure of all
ministries, called Demand for Grants are sent for examination to the DRCSs. They study the demands
to examine the trends in allocations, spending by the ministries, utilization levels, and the policy
priorities of each ministry. However, only a limited proportion of the budget is usually discussed on
the floor of the House. In the recently dissolved16th Lok Sabha, 17% of the budget was discussed in
the House.

21
While Committees have substantially impacted Parliament’s efficacy in discharging its roles, there is
still scope for strengthening the Committee system. In the 16th Lok Sabha, DRSCs examined 41 Bills,
331 Demands for Grants, 197 issues, and published 503 Action Taken Reports.
ISSUES INVOLVED
 Fewer Bills referred: The ratio of bills referred to committees to bills passed is very low.
 Longer tenure: The committee system allows smaller group of legislators develop technical
expertise and ensure better deliberation. However, in the current system, the tenure is only
one year and for any expertise to develop, a longer tenure is required.
 Lack of research support: Examining bills referred to a committee requires the members of
the committee to have technical expertise.
 Lack of research support prevents the committees from being able to provide quality and
nuanced recommendations.
 Discussion of committee reports: discussions not taken up seriously as committee

recommendations are not binding on financial matters such as budgets etc.
 Low Attendance
 Too many ministries under a committee

 Norms not followed by most political parties while nominating MPs to committees

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SUGGESTIONS
 Strengthening committees and scrutinizing reports in a timely manner.
 The discussion of committee reports in the Parliament must be encouraged.
 A constitution committee can be set up to examine constitutional amendments instead of

them being presented in the House as an ordinary bill.
 Legislative committee of parliament to oversee and coordinate legislative planning and

improving information supply.
 Oversight committee to oversee effective and proper functioning of other committees
 Encouraging greater public participation via various online mediums.
 Formulating a defined procedure and consequences for not referring certain types of bills to
parliamentary committees.
 The committee system in India can be evaluated both qualitatively and quantitatively. A
quantitative study would include comparison of the number of reports submitted by each
committee, number of meetings held, and the attendance of MPs for each meeting.
 A qualitative study would have a higher level of subjectivity and would include studying the
quality of the recommendations, level of knowledge of MPs, quality of discussions in the
Committees etc.
NCRWC – 2002
 DRSCs should be periodically reviewed. All Bills should be referred to DRSCs. They can elicit
public views and call specialist advisors. The DRSCs may finalize the second reading stage in
the Committee.
 Three new committees should be set up:
 (a) Standing Committee on National Economy to provide analysis of the national

economy with resources for advisory expertise, data gathering and research facilities;
 (b) Standing Constitution Committee to scrutinize Constitutional Amendment Bills

before they are introduced in Parliament; and
 (c) Committee on Legislations to oversee and coordinate legislative planning. Existing
Committees on Estimates, Public Undertakings and Subordinate Legislation may not
be needed. The Petitions Committee can be a supplement to the proposed office of
the Lok Pal.
 Major reports of all Committees should be discussed in Parliament especially in cases where
there is disagreement between a Committee and the government. The recommendations of

23
the PACs should be accorded greater weight and they should be treated as the “conscience
keepers of the nation in financial matters”.
INTERNATIONAL EXAMPLES
16TH LOK SABHA DATA REVIEW

 The 16th Lok Sabha held its sessions between June 2014 to February 2019.
 During the 16thLok Sabha, 133 Bills were passed, and 45 Ordinances were promulgated.
 Second lowest hours of work done by Lok Sabha in any full-term Lok Sabha
 Discussed more Bills for more time but scrutinized less in Committees
17TH LOK SABHA DATA REVIEW
 397 MPs were elected from national parties. Of these 303 MPs were from BJP, 52 from
Congress, and 22 from TMC.
 Among the state parties DMK (23) and YSRCP (22) won the most seats.
 267 first-term MPs in the 17th Lok Sabha.

24
 Fewer MPs over 70 years, more MPs under 40 years
 The average age of an MP is 54 years.

 The proportion of MPs below 40 years of age has steadily declined from 26% in the first Lok
Sabha.
 Since 1996, at least 75% of representatives of each Lok Sabha have been graduates.
 394 MPs have at least Graduate level education
 78 women MPs in the 17th Lok Sabha
 716 women candidates contested the General Election. Out of which, 78 women MPs have
been elected to the 17th Lok Sabha.
 The representation of women MPs in Lok Sabha is slowly improving from 5 % in the 1st Lok
Sabha to 14 % in the 17th Lok Sabha.

25
 Though the percentage of women MPs has increased over the years, it is still lower in
comparison to some countries. These include Rwanda (61%), South Africa (43%), UK (32%), USA
(24%), Bangladesh (21%).
 39% of MPs have listed their occupation as political and social work.
 38% are engaged in agricultural activities.

 23% MPs are businessmen.
 Only 4 % of MPs are lawyers

 Note: Several MPs have declared more than one occupation.

26
LEGISLATIVE COUNCILS
STATE LEGISLATIVE COUNCILS
Context
• The West Bengal government has recently approved the setting up of the Legislative Council.
The decision will have to be approved by Parliament before coming into effect.
• Article 169(1) of the Constitution allows Parliament to either create or abolish a Council if the
Legislative Assembly of the State passes a resolution to that effect by a special majority
(majority of the total membership of the Assembly and by a majority of not less than two-
thirds of the members of the Assembly present and voting).
• The act of Parliament to create/abolish LCs is not deemed as an amendment under Article 368.
So, a Simple majority in Parliament suffices.
• At present, there are six states viz Andhra Pradesh, Telangana, UP, Maharashtra, Bihar,
Karnataka, where the Legislative Council is in existence. Jammu and Kashmir too had one,
until the introduction of the J&K Reorganisation Bill, 2019 that bifurcated it into the Union
Territories of J&K and Ladakh.
• Composition:
• Under Article 171(1), the Legislative Council of a state shall not have more than one-
third of the total strength of the State Assembly, and in no case, shall have fewer than
40 members.
• Tenure of Members:
• Similar to the Rajya Sabha, the legislative council is a continuing chamber, i.e. it is not
subject to dissolution. The tenure of a Member of the Legislative Council (MLC) is of
six years, with one-third of the members retiring every two years.

27
COMPARISON WITH RS
• The constitution hasn’t mandated LCs to shape non-financial legislation (Ordinary Bills,
Constitution Amendment Bills) like it has been substantially endowed to Rajya Sabha.
• Legislative Assemblies can override suggestions/amendments made to a Bill by the Council.

There is no provision of a joint sitting to resolve the deadlock.
• Further, Rajya Sabha MPs, are part of the electoral college related to elections for the
President and Vice President whereas MLCs are not.
• Also, the status accorded to Chairperson of Rajya Sabha (Ex-Officio Vice President) is starkly
different vis-à-vis elected chairperson of the Legislative Council.
RATIONALE FOR CREATION
• India has a bicameral system vis-a-vis legislative setup. So, In the same manner, like that of
Indian Parliament that has two Houses (House of the People and House of Elders), the states
can also have an equivalent of Upper house i.e. Legislative Council.
• Acts as a check and balance on hasty and populist actions by the directly elected House.
• Facilitates diversity in the legislative process by the provision of the nomination of non-
elected individuals.
• It enhances the representation of local bodies in state legislation as they are given rights to
elect 1/3rd of the members of the LC.
CRITICISM OF STATE LEGISLATIVE COUNCILS
• Superfluous and Mischievous: If a majority of the members in the upper house belong to the
same party which holds the majority in the lower house, the upper house will become a mere
ditto chamber. On the other hand, if two different parties are in majority, the upper house will
delay the bills for months unnecessarily. Thus its role may become nasty and obstructive.
• Not an Effective Check: Powers of the Legislative Councils are limited and hardly impose any
effective check on the Assemblies. Whether a Bill is approved by the Council or not, the
assembly can still go ahead after four months.
• Vested Interests: Legislative Council serves only as a stronghold of vested interests of people,
who are not interested in legislation. Instead, they may block such legislation initiated by the
popularly elected Legislative Assembly.
• Backdoor Entrance of the Defeated Members: Legislative Council can be utilised to

accommodate discredited party-men who may not be returned to the Assemblies.
• Expensive Institution: It is expensive and a big drain on the State’s exchequer

28
WAY FORWARD
• There is a need for a National Policy on having Upper House in State Legislatures. The
provision of the law for Councils to have seats for graduates and teachers should also be
reviewed.
• There is a need for a wide range of debates and public and intellectual opinion to have an
Upper House in all state legislatures. Legislative councils should be a responsible body that
can also form their part in policies and programmes for the development of states.
RAJYA SABHA
INTRODUCTION
 Rajya Sabha’ or the ‘Council of States’ is the second chamber of the Indian parliament, which
traces its origin to the Montagu-Chelmsford Reforms, 1919.
 Rajya Sabha as the second chamber of the parliament intended to play certain roles as a
permanent house (it never dissolves like Lok Sabha and one-third of its members retire every
two years), revisionary house (reconsidering bills passed by the Lok Sabha) and offers a
degree of continuity in the underlying policies of laws passed by parliament.
 Along with this, Rajya Sabha also acts as a means to institutionalize the federal principle of
power-sharing between the Centre and states.
 The Rajya Sabha elections were recently concluded. Leaving aside the tussle for majority in
Rajya Sabha (to get bills passed), this body has been in news for many reasons. One of the
primary debate also questions the very need of an upper house.
 However, the role and relevance of Rajya Sabha have been a matter of debate which can be
traced from discussions in constituent assembly to recent times.
BASICS
 The Rajya Sabha or Council of States is the upper house of the bicameral Parliament.
 It currently has a maximum membership of 245, of which 233 are elected by the legislatures
of the state and union territories using single transferable votes through open ballot.
 The President can appoint 12 members for their contribution to art, literature, science, and
social services.
 Members sit for terms lasting six years, with elections every year but almost a third of the 233
designates up for election every two years, specifically in even numbered years.

29
CONTEXT: FOR ESSAY ONLY
 Historical background
 The Rajya Sabha came into being on April 3, 1952 and held its first session on May 13
the same year.
 The Constituent Assembly, which was formed in 1947, after the adoption of the
Constitution became the Provisional Parliament and made laws till 1952.
 Before its existence

 The central legislature that came into being under the Government of India Act, 1919
was bicameral.
 Under 1919 Act, Council of States had 60 members and Legislative Assembly had 145
members.
 The membership and voting norms for the Council of States were restrictive. These
restrictions meant only wealthy landowners, merchants and those with legislative
experience could enter it.
 Women could neither vote nor seek membership.
 The Government of India Act, 1935 proposed an elaborate and improved version of the
second chamber, but this never materialized.
CONSTITUENT ASSEMBLY DEBATES REGARDING RAJYA SABHA
In favor of Rajya Sabha
 Proponents of the Rajya Sabha held that an upper chamber would lend a voice to the states
in the legislative scheme of things and check the legislation passed in haste.
Against the Rajya Sabha
 The section in the constituent assembly who was opposed to the idea of Rajya Sabha held
that an Upper House was not essential and opinionated that such a chamber can prove to be
a “clog in the wheel of progress” of the nation, by delaying the legislative process.
ELECTIONS TO THE RAJYA SABHA
 Qualifications: Article 84 of the Constitution lays down the qualifications for membership of
Parliament. A member of the Rajya Sabha must:
 Be a citizen of India; Be at least 30 years old.(Article 84 constitution of India)

30
 Be elected by the Legislative Assembly of States and UTs by means of the single
transferable vote through proportional representation.
 Not be:
 A proclaimed criminal,
 A subject of an insolvent,
 Of unsound mind.
 Not hold any other office of profit under the Government of India.
 Possess such other qualifications as may be prescribed in that behalf by or under any
law made by Parliament.
 In addition, twelve members are nominated by the President of India having special
knowledge in various areas like arts and science. However, they are not entitled to vote in
Presidential elections as per Article 55 of the Constitution.
ELECTION PROCEDURE
 Candidates fielded by political parties have to be proposed by at least 10 members of the

Assembly or 10% of the party’s strength in the House, whichever is less.
 For independents, there should be 10 proposers, all of whom should be members of the
Assembly.
 Voting procedure
 Voting is by single transferable vote, as the election is held on the principle of

proportional representation.
 A single transferable vote means electors can vote for any number of candidates in
order of their preference.
 A candidate requires a specified number of first preference votes to win. Each first-
choice vote has a value of 100 in the first round.
 To qualify, a candidate needs one point more than the quotient obtained by dividing
the total value of the number of seats for which elections are taking place plus one.
 The formula simply is [(Number of MLAs X 100) / (Vacancies + 1)] + 1.
 Example: If there are four seats and 180 MLAs voting, the qualifying number will be
180/5= 36 votes or value of3,600.

31
Note:
 The Rajya Sabha polls have a system of the open ballot, but it is a limited form of openness.
There is a system of each party MLA showing his or her marked ballots to the party’s
authorized agent (called Whip), before they are put into the ballot box.
 The NOTA option has been struck down by the Supreme Court in RS elections.
THE POWER EQUATION: LOK SABHA V/S RAJYA SABHA

 The Indian Constitution provides for parity of powers between the Lok Sabha and the Rajya
Sabha in law, making an exception in some cases.
 The Money Bill or Finance Bills can be introduced only in the Lok Sabha which only can approve
the Demands for Grants.
 On the other hand, the Rajya Sabha has some special powers as requiring adopting a
resolution allowing Parliament to legislate on subjects in the State List and creating All India
Services, besides approving proclamations of Emergency and President’s Rule when the Lok
Sabha is dissolved.
 Renowned British philosopher and political economist John Stuart Mill as early as in 1861 said
in his great treatise Considerations on Representative Government that management of free
institutions requires conciliation; a readiness to compromise; a willingness to concede
something to opponents and mutual give and take. Truly, Rajya Sabha plays this role in Indian
legislature.
IN DETAIL: POWERS AND FUNCTIONS OF THE RAJYA SABHA
1. Legislative Powers:
 In the sphere of ordinary law-making, the Rajya Sabha enjoys equal powers with the
Lok Sabha. An ordinary bill can be introduced in the Rajya Sabha and it cannot become
a law unless passed by it.
 In case of a deadlock between the two Houses of Parliament over an ordinary bill and
if it remains unresolved for six months, the President can convene a joint sitting of the
two Houses for resolving the deadlock.
 This joint sitting is presided over by the Speaker of the Lok Sabha. But if the deadlock
is not resolved, the bill is deemed to have been killed.
2. Financial Powers:
 In the financial sphere, the Rajya Sabha is a weak house.
 A money bill cannot be introduced in the Rajya Sabha. It can be initiated only in the Lok
Sabha.

32
 A money bill passed by the Lok Sabha comes before the Rajya Sabha for its
consideration.
3. Executive Powers:
 Members of the Rajya Sabha can exercise some control over the ministers by criticizing
their policies, by asking questions and moving motions, etc.
 Some of the ministers are also taken from the Rajya Sabha. The PM can also be from
Rajya Sabha if the majority party in the Lok Sabha may elect/adopt him as its leader.
4. Electoral Powers:
 The Rajya Sabha has some electoral powers also. The elected members of the Rajya
Sabha along with the elected members of the Lok Sabha and all the State Legislative
Assemblies together elect the President of India.
 The members of the Rajya Sabha Lok Sabha together elect the Vice- President of India.
 Members of the Rajya Sabha also elect a Deputy Chairman from amongst themselves.
5. Judicial Powers:
 The RS acting along with the Lok Sabha can impeach the President on changes of
violation of the constitution.
 The RS can also pass a special address for causing the removal of a judge of the
Supreme court or of any High court.
 The charges against the Vice-President can be levelled only in the RS.
 The RS can pass a resolution for the removal of some high officers like the Attorney
General of India, CAG, and Chief Election Commissioner.
6. Exclusive Powers:
The Rajya Sabha enjoys two exclusive powers:
(i) The Power to declare a subject of State List as a subject of National Importance:
 The Rajya Sabha can pass a resolution by 2/3rd majority of its members for
declaring a State List subject as a subject of national importance.
 Such a resolution empowers the Union Parliament to legislate on such a state

subject for a period of one year. Such resolutions can be repeatedly passed by
the Rajya Sabha.
(ii) Power in respect of Creation or Abolition of an All-India Service:

33
 The Rajya Sabha has the power to create one or more new All India Services. It
can do so by passing a resolution supported by 2/3rd majority on the plea of
national interest.
 In a similar way, the Rajya Sabha can disband an existing All India Service.
7. Miscellaneous Powers: The RS and LS jointly perform the following functions:
 Approval of the ordinances issued by the President.
 Ratification of an emergency proclamation
 Making any change in the jurisdiction of the Supreme Court and the High Courts
 Making any change in the qualification for the membership of the LS and the RS.
ROLE OF RAJYA SABHA
 Safety Valve of India’s Federal Polity: Bicameralism is necessary for a federal constitution to
give representation to the units of the federation.
 While checks and balances usually operate between the executive, legislature and judiciary,
the Council of States acts as a safety valve within the legislature itself, easing federal tensions.
 Rajya Sabha thus represents a crucial component of the constitutional checks and balances
scheme, in addition to the commonly identified examples of responsible government and
judicial review.
 Review and Revaluation Role: Indian constitution framers wanted to create a house that
would act as a revisionary house to keep a check on the hasty legislation that could be passed
by the lower house under populist pressures.
 Also, when the ruling dispensation has a brute majority in the Lok Sabha, Rajya Sabha can
prevent the government of the day exercising authoritarianism.
 A Deliberative Body: Parliament is not only a legislative body but also a deliberative one which
enables the members ty debate major issues of public importance. Thus, the role of the Upper
House is to be a deliberative body besides balancing the “fickleness and passion” of the Lok
Sabha.
 Representing the Vulnerable Sections:
 Women, religious, ethnic and linguistic minority groups are not adequately
represented in the Lok Sabha (due to first past the post-election system).
 An indirect form of election (through propositional representation) to the Rajya Sabha,
therefore, would give them a chance to get involved in the nation’s law-making
process.

34
 Thus, Rajya Sabha can make a place for people who may not be able to win a popular
mandate.
SPECIAL POWERS OF RAJYA SABHA

The Upper House also has some special powers, such as:
 Power to transfer a subject from the State List to Union List for a specified period (Article
249).
 To create additional All-India Services (Article 312).
 To endorse Emergency under Article 352 for a limited period when the Lok Sabha remains
dissolved.
 According to President Radha Krishnan, there are functions, which a revising chamber like
Rajya Sabha can fulfil fruit fully. Parliament is not only a legislative but a deliberative body. So
far as its deliberative functions are concerned, Rajya Sabha has made very valuable
contributions time and again. It’s true that party dynamics affects the working of Rajya Sabha.
But in democracy passion often defeat the normal rationality. Thus, a revising house is
needed to check such adrenal rush.
 While the argument of members not able to win in direct elections holds true, but retaining
talent is essential for any democratic system. Losing valuable talent during election fervors
has mostly been corrected by Rajya Sabha. It has also given entry to other experts like
scientist, artist, sportsmen etc that can rarely face the electoral politics. While Lok Sabha
have members for each state, the Hindi belt domination is a constant theme. Hence other
state interests, like those in Northeast, have always been taken up by the Rajya Sabha. While
it can’t bring no confidence motion or amend money bill, its role in checking arbitrariness of
government, as reflected in Land Ordinance, is necessary in democracy. Besides its special
role in All India Services, legislation in State List too necessitates its existence. Men and
women of prodigious talent and caliber have adorned the benches of the upper house and
have contributed significantly towards realizing the vision of the founding fathers of the
Constitution.
 A permanent Upper House is also a check against any abrupt changes in the composition of
the Lower House. Rajya Sabha has continuity and is a permanent house. Unlike Lok Sabha, it
cannot be dissolved by anyone. Thus, it has, time and often, carried out some administrative
functions even when the lower house is dissolved. It has members with experienced players
while there may be new entrants in the Lok Sabha. By virtue of this, Rajya Sabha can’t be said
to be ‘obstructive’.

35
ISSUES RELATED TO RAJYA SABHA
 No equal Representation of states
 Federal countries like US, Australia, institutionalize the principle of federalism more
strongly than India, by providing equal representation to all states in their upper
houses.
 This is in contrast with the Rajya Sabha, where states are represented proportionally
to their relative populations.
 For example, the number of seats allocated in Rajya Sabha to Uttar Pradesh alone is
significantly higher than that of combined north-eastern states.
 Bypassing the Rajya Sabha:
 In some cases, ordinary bills are being passed in the form of a Money Bill,
circumventing the Rajya Sabha and giving rise to the question about the very efficacy
of the upper house of Parliament. This can be seen recently in the controversy related
to Aadhar Act.
 Undermining of Federal character of Rajya Sabha

 By way of the Representation of People (Amendment) Act, 2003, parliament has
removed the word ‘domicile’ from Section 3 of Representation of People Act, 1951.
 This essentially means that a person who does not belong to a state can contest the
Rajya Sabha elections from that state of which they are neither a resident nor a
domicile.
 After the amendment, the seats in the Rajya Sabha have been used by the ruling party
to get their defeated candidate in Lok Sabha, elected in Rajya Sabha.
 Low Participation of Nominated Members
 More recently, the sincerity of nominated members has been questioned in multiple
instances.
 Nominations are made by the government to satisfy the sentiments of the followers
of certain personalities.
 Once nominated, they rarely participate in the working of the house. Sachin Tendulkar
was appointed in 2012 and the House has met 374 days since then, but the attendance
of Sachin Tendulkar is a meagre 24 days.

36
MONEY BILLS
 A money bill can be introduced only in the Lok Sabha by a minister and only on
recommendation of President of India.
 When the Lok Sabha passes a money bill then the Lok Sabha sends money bill to the Rajya
Sabha for 14 days during which it can make recommendations.
 Even if Rajya Sabha fails to return the money bill in 14 days to the Lok Sabha, that bill is deemed
to have passed by both the Houses.
 Also, if the Lok Sabha rejects any (or all) of the amendments proposed by the Rajya Sabha,
the bill is deemed to have been passed. Hence, Rajya Sabha can only give recommendations
for a money bill but Rajya Sabha cannot amend a money bill.
 There is no joint sitting of both the houses with respect to money bills, because all final
decisions are taken by the Lok Sabha
 Joint Sitting of the Parliament : Article 108 provides for a joint sitting of the two Houses of
Parliament in certain cases. Considering that the numerical strength of Lok Sabha is more than
twice that of Rajya Sabha, Lok Sabha tends to have a greater influence in a joint sitting of
Parliament. A joint session is chaired by the Speaker of Lok Sabha. Joint sessions of Parliament
are a rarity, and have been convened only three times in last 71 years, for the purpose of
passage of a specific legislative act, the latest time being in 2002:
 1961: Dowry Prohibition Act, 1958
 1978: Banking Services Commission (Repeal) Act, 1977

 2002: Prevention of Terrorism Act, 2002
 No confidence motion: The Union Council of Ministers is collectively responsible before the
Lok Sabha and not the Rajya Sabha. Lok Sabha alone can cause the fall of the Council of
Ministers by passing a vote of no-confidence
STEPS TO BE TAKEN
 To preserve the federal character of Rajya Sabha, one step would be to have members of the
Rajya Sabha be directly elected by the citizens of a state.
 This will reduce cronyism and patronage appointments.
 Also, a federal arrangement can be devised to enable equal representation for each state, so
that large states do not dominate the proceedings in the House.
 There is a need for a better procedure of nomination to improve the quality of discussion in
the House.
 A cue in this regard can be taken from the UK.

37
 The House of Lords Act, 1999 has led to the introduction of the Appointments
Commission in 2000 with the primary function of making recommendations for the
appointment of non-party-political members to the House of Lords.
 This commission can recommend nomination to Rajya Sabha from groups under -
represented.
CONCLUSION
 Even though the ups and downs of Indian politics, the Rajya Sabha has remained a vanguard
for political and social values, a melting pot of cultural diversity. Also, along with Lok Sabha, it
is a flag-bearer of the sovereign, socialist, secular, democratic republic called India.
 Thus, Rajya Sabha should not be seen as a ‘disruptive’ wing of the legislation and efforts
should be made to enable Rajya Sabha to retain its significant role in Indian democracy.
 A study of the powers of the Rajya Sabha leads us to the conclusion that it is neither a very
weak house like the British House of Lords nor a very powerful house as the American Senate.
Its position is somewhat mid-way between the two. It has been less powerful than Lok Sabha,
but it has been not a very weak or insignificant House.
 Instead of engaging in the debate of if we need upper house or not, more constructive
outlook would improve its functioning. Clearly, the recommendations are present from
NCRWC to 2nd ARC. The need is implementation and political support.

MAINS CRASH
COURSE
POLITY: THEME 6
Structure, Organization and
Functioning of the Executive and
the Judiciary—Ministries and
1
POLITY THEMES
S.NO. THEME


Institutions.
5 Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers &

Privileges and Issues Arising out of these.

and departments of the Government

various constitutional Bodies.

2
Year Marks/words Questions
2014 12.5/200 Instances of President's delay in commuting death sentences has come
under public debate as denial of justice. Should there be a time limit for the
President to accept/reject such petitions?
2014 12.5/200 Size of cabinet should be as big as government work justifies and as big as
PM can manage as a team. How far is the efficacy of government then
inversely related to size of the Cabinet? Discuss.
2017 10/150 Critically examine the Supreme Court’s judgement on ‘National Judicial
Appointments Commission Act, 2014’ with reference to the appointment of
judges of higher judiciary in India
2018 10/150 Under what circumstances can the Financial Emergency be proclaimed by
the President of India? What consequences follow when such a declaration
remains in force?
Focal Areas
 Role of Governor
 Emergency Review
 Judiciary- pendency, PIL, AIJS

3
GOVERNOR
APPOINTMENT OF THE GOVERNOR

 Article 153 states that every state shall have a governor
 Article 154 states that the executive power of the state shall be vested in the Governor
 U/a 155 it is the President of India who appoints the Governor; however, he exercises this
power on the aid and advice of PM/ CoM. Over the period of time, in order to ensure smooth
function of the affairs of the state, a convention has grown where the Chief Minister of the
state is consulted before appointment.
 Hence, the office of the Governor is a nominated one and not elected. The reasons for this
are:
 Nominated governor will promote all India unity and not separatist provincial
tendency.
 Since he is only a nominal head, no
point of spending huge amount of
money or energy for his election.
 An elected governor will belong to
a party, hence, will not be impartial
and neutral
 Conflicts will arise between C M

and Governor if both are elected by
people.
TENURE/REMOVAL
 Article 156(1) clearly states that the governor holds the office during the pleasure of the
President i.e. as long as the central executive wats him in the office. Hence, he can be removed
by the Centre on any grounds which the President is not bound to disclose.
 Subject to this overall condition, he holds the office for a term of five years [(Article 156(1)]
and can resign early by writing to the President.
 Unlike the President, the governor is not impeached because he holds the office during the
pleasure of the President. Since he is a political appointee of whose appointment is made on
political conditions, it can also be terminated on political considerations. Therefore, no
grounds have been specified for his removal.

4
 Over time, the governor’s tenure became a very burning federal issue as it was believed that
central government used uncertainty of tenure, including his transfer, as a ground to influence
his decision, thereby making it difficult for him to function with complete impartiality and as
an independent constitutional authority.
JUDICIAL REVIEW OF GOVERNOR’S REMOVAL

 Therefore, in order to prevent governors being completely at the mercy of Centre, the SC in
B.P Singhal V Union of India held –
 Governors can’t be dismissed arbitrarily on the ground that center has lost confidence
in him and he does not agree with Centre’s ideologies and policies.
 Just because he holds office during the pleasure of the President does not make him
an employee or servant of the Union Government.
 The constant threat of removal makes him subservient to the Union Govt, hence
certain safeguards have to be read into article 156(1).
 Hence, the court held that if an aggrieved person can show that his removal was arbitrary,
mala fide, capricious or whimsical, he can call upon the central government to disclose to the
court the material upon which the President took the decision.
 Therefore, even if the reason for his removal is not to be assigned, a limited judicial review is
allowed if the removal is arbitrary, mala fide etc.
 ‘Doctrine of Pleasure without limitation’ cannot be applied in India where the rule of law
prevails.
POSITION OF GOVERNOR IN A STATE

 The governor plays a dual role – he is the head of the State as well as a representative of the
Centre in the State.
 As representative of the Centre he is a vital link/ channel of communication between the
Centre and the state. It is his duty to keep the Centre informed of the affairs of the state. This
helps the Centre discharge its constitutional responsibilities towards the State. He acts as an
agent of the Centre when a proclamation of emergency is made u/a 356
 As a Constitutional Head of the State, he appoints the Chief Minister and other Ministers and
discharges several important functions in relation to the state legislature. As he has a fixed
term, he assures continuity in state administration while the CMs come and go.
 Thus, he is a key functionary in the system envisaged by our Constitution.

5
CONSTITUTIONAL POSITION/RELATION WITH COUNCIL OF MINISTERS

 The relation between the governor and his Council of Ministers is similar to that between
President and the Union CoM, i.e. he has to act on the aid and advice given by the CoM except
in all the cases where the Constitution authorizes the Governor to exercise powers ‘in his
discretion’.
 Article 163(1) says there will be Council of Ministers to aid and advice the Governor except in
the cases he has to act in his discretion.
 Article 163(2) then says if any questions arises with respect to whether a matter falls under
Governors’ discretionary power or not, the decision of the Governor with regards to the
question shall be final and anything done by the governor in his discretion will not be called
into question.
 Article 163(3) does not allow the courts to inquire into what advice was tendered by the CoM
to the Governor.
 The Constitution makers conferred explicit and far wide discretionary power on the Governor
because as the representative of the Centre governor has to serve as eye and ears of the
Centre and so needs independence and discretion in certain matters and also because he is an
important link between the center and state to maintain unity and integrity of India.
Constitutional position of governor is different from that of the President as:

 firstly, constitution explicitly provides for governor to act in his discretion but no such
possibility has been envisaged for the President,
 secondly while the President can ask the Union CoM to reconsider any advice, no such
provision is there with respect to Governor and,
 thirdly, 42nd Constitutional Amendment Act , 1976 made ministerial advice binding on
President but with respect to Governor no such provision is there. But this hardly makes
difference in reality because the position is similar to what existed prior to the amendment.
 Though various articles of the Constitution expressly require Governor’s discretion but in all
other matters he has to act in harmony (on advice) with his CoM (Shamsher Singh V State of
Punjab) because constitution does not aim to provide parallel administration within the state
by allowing governor to go against the advice of CoM.

6
DISCRETIONARY POWER OF THE GOVERNOR

 The Governor has to discharge certain functions in his discretion ‘by or under’ the constitution.
This means that his discretionary power need not be always express but may be necessarily
implied.
 In the following cases governor has Constitutional discretion i.e. constitution mentions
governor to exercise these functions in his discretion/opinion/ independently of the CoM.
 Reserving a bill for President’s consideration u/a 200.
 Governor’s report recommending imposition of governor’s rule in the State u/a 356.
 While exercising his functions as the administrator of an adjoining Union Territory u/a 239(2).
 Determining the amount payable by the Government of Assam to the district councils as
royalty accruing from licenses of mineral exploration.
 In addition to the above the Governor has certain ‘special responsibilities’ to discharge u/a
371,which practically means his discretion and though he is, in case of special responsibility, to
consult CoM but the final decision will be his individual judgement. These include establishing
separate development boards of certain areas in Gujrat and Maharashtra, administration of
tribal areas in Assam, hill area in Manipur, law and order in Arunachal Pradesh, Nagaland etc.
SITUATIONAL DISCRETION
Appointment of the Chief minister u/a 164(1): When no party has achieved a clear cut majority in the
elections or when the chief Minister suddenly dies and there is no obvious successor ,in those
situations' governor can call any person to form the government who he thinks can command
majority.
 In Pratap Singh Raojirao vs Governor of Goa , the court held that for the purpose of the
appointment of the Chief Minister, Governor acts in his sole discretion and while taking
decision in his sole discretion he enjoys immunity under Article 361 of the Constitution.
 About the appointment of a non-legislator as the Chief Minister in B.R. Kapur vs State of Tamil
Nadu, court held that a non-legislator can be made Chief Minister only if, he has the
qualification for membership of the Legislature prescribed by Article 173 of the Constitution
and is not disqualified from the membership thereof by reason of the disqualification set out
in Article 191 of the Constitution on the date of his appointment.
 In Anil Kumar Jha v UOI ,governor appointed the leader of a party which was not commanding
majority as C M .court held into be arbitrary and mala fide exercise of power
 Dismissal of Ministry when it cannot prove the majority in the house: Since CoM u/a 164(2) is
collectively responsible to the state legislative assembly hence if a ministry has lost confidence
of the house but refuses to resign, in that case Governor can dissolve the Ministry

7
 In Mahabir Prasad Sharma vs Prafulla Chandra Ghose, the Calcutta High Court has ruled that
if the Council of Ministers refuses to vacate the office of ministers, after the defeat of the
confidence motion in the House, then the Governor may withdraw his pleasure. The Court
also held that the right of the Governor to withdraw his pleasure during which the minister is
to hold office is absolute, unrestricted and unfettered and the exercise of discretion in
withdrawing the pleasure cannot be called in question in a court of law.
 In Jagdambika Pal vs State of U.P., the Supreme Court directed to convene a special session
of Legislative Assembly and to have a composite floor test between contending parties to
ascertain who out of two (Sh. Kalyan Singh and Sh. Jagdambika Pal) enjoys a majority in the
Assembly. It shows that the Governor’s discretion to dismiss the ministry should be exercised
only when the Chief Minister fails to prove the majority on the floor of the House by any
means.
 In Jogendra Nath vs State of Assam, commenting about the discretionary power of the
Governor in appointing or dismissing the Chief Minister, the Gauhati High Court observed that
'the repository of power to appoint Chief Minister or to withdraw the pleasure contemplated
under Article 164 and/or dismissal of ministry are exclusively pleasure-cumdiscretion of the
Governor. He is the sole and exclusive authority to appoint a Chief Minister’.
Dissolution of State Legislative Assembly:

 Various Governors have adopted different approaches in similar situations in regard to
dissolution of the Legislative Assembly.
 The advice of a Chief Minister enjoying majority support in the Assembly to dissolve the house
is normally binding on the Governor.
 However, where the Chief Minister had lost such support, some Governors refused to dissolve
the Legislative Assembly on his advice, while others in similar situations, accepted his advice,
and dissolved the Assembly.
IS GOVERNOR AN AGENT OF CENTRE?

 Governor is an appointee of the President, and holds office “during the pleasure of the
President.”
 President is bound to act on the aid and advice of the Council of Ministers (Article 74), in effect
it is the Central Government that appoints and removes the Governors:
 “Pleasure of the President "actually refers to will and wish of the Central Government.
 The Constitution is strictly against compromising the relative autonomy of the States.
Appointing Governors due to:
 Common political ideologies

8
 or to reward past acts of the persons

 Leads to over-centralization, hence giving rise to negative terms such as ‘agent of center',
'rubber stamp’, etc.
 Recent appointments of Governors do not abide by Constitutional mandate. Keeping in mind
that BJP is in power at center:
 In Congress governed Rajasthan, Kalraj Mishra (who is a politician and former cabinet
minister in the BJP led NDA government of Narendra Modi) was appointed as
Governor(2019)
 Shri Bandaru Dattatreya (former Lok Sabha member for BJP) was appointed as the
Governor in Himachal Pradesh in 2019.
 Smt.Tamilisai Soundararajan was appointed as the Governor of Telangana; former
state head of BJP in Tamil Nadu.
 BJP member C.Vidyasagar Rao is replaced by another veteran BJP leader Bhagat Singh
Koshyari in Maharashtra.
 Arif Mohammed Khan has been appointed as the Governor in Kerala; he earlier quit
the Rajiv Gandhi government over the Shah Bano case, has been cited many times by
BJP.
 Unless the party ruling the State is a non-BJP party, there is no check over the appointed
Governor.
 Though Constitution separates Centre and State, granting the latter relative autonomy, due
to this biased nominated appointment of Governors is shrinking Governor’s roles down to
clearly and distinctly become Agent of the Centre, implying, Governor was never meant to be
Agent of the Centre, but is in danger of getting reduced to it due to biased practices.
 There exists urgent necessity for depoliticization of the post of Governor.
REFORMS IN THE OFFICE OF GOVERNOR

 “The governor is the linchpin of the constitutional apparatus in the state” , said the Sarkaria
Commission. His role has emerged as one of the key issues in Union state relations and has
been criticized for want of ‘impartiality and sagacity’.
 Regarding appointments Sarkaria commission said the effective consultation between the
center and the C M should be there by amending Article 155. Further governor should be
eminent, come from outside the State, be not too intimately connected with the local politics
of the State; and not recently haven taken too great part in politics. particularly in the recent
past.

9
 However the Punchhi Commission said that phrases like eminent ,detached figure is too vague
and hence strict guideline should be adopted.
 As regards the removal, the Sarkaria commission recommended that governors five year term
should not be disturbed except very rarely and that too compelling reasons and should the
governor be transferred or his tenure terminated, the central government may lay and
explanatory statement before the parliament.
 Punchhi Commission recommended that the phrase during pleasure of president should be
removed from article 155 and governor should be impeached on same ground as the
President.
Commissions Summary of Commission Recommendations for Governor’s Office

to improve
Centre-State
Relations
Sarkaria  Submitted report in Governor should be

Commission 1988. o eminent in some walk of life.
o from outside the state.
(1983)  Recommended
o detached figure without intense political
changes in Centre-
links.
State relation,
o should not be a member of the ruling
especially in areas
party.
relating to legislative
o appointed after effective consultations
matters, the role of
with the State Chief Minister and Vice
Governors, and the use
President and Speaker of the Lok Sabha.
of Article 356.
o removed before his tenure only on the
grounds as mentioned in the constitution
or if aspersions are cast on his morality,
dignity, constitutional propriety, etc.
Administrative  Considered existing Governors of State must be

Reforms constitutional
o non-partisan persons
Commission provisions sufficient
to regulate federal o Long experience in public life and
(1969)
tensions. administration.
 Gave 22
recommendations
for Centre-State
relations.

10
Punchhi  Relooked into  Incumbent should have stayed away from

Commission issues in Centre- active politics even at the local level for at
State relations least two years prior.
(2007)
previously
 Committee comprising of Prime Minister,
Recommendations
Home
for
appointment/Office  Minister, Speaker of Lok Sabha, concerned
of Governor state Chief Minister, and Vice President
 looked into by should be entrusted with appointment.
Sarkaria
 Only a resolution by the state legislature
Commission.
should remove the governor.
 Examined the role
 provision for the impeachment of the
and removal
governor by the state legislature.
procedures of
governors.  Doctrine of Pleasure should be deleted
from the Constitution.

11
EMERGENCY
INTRODUCTION
 The principle of necessity was well recognized even in ancient India. The great Hindu Jurist of
ancient times Manu-the law giver, recognize "Appad Dharma" as one of the Supreme duties
or Dharma of a king as protector of his subjects against disorder and anarchy.
 The emergency provisions under Indian constitution can be traced back to the British rule in
India, when by Act of parliament crown established its sovereignty over company's territories
in India in 1861.
 The Governor General under the provisions exercised wide powers both legislative and
executive. He was also given power to legislate for emergencies.
 These powers were very sparingly used till the outbreak of First World War, but between 1914
to 1918 it was used for about 26 times. Judicial challenges to invocation of these powers were
met with unsuccessful attempts.
 In 1919 the famous Rowlett Act was passed. This law was intended to be used as an emergency
measures, very stringent in nature, it was set out to control the terrorist activities in India.
 Then came the Government of India Act 1919 which reaffirmed the powers of Governor
General to promulgate ordinances in emergency.
 Similar powers were conferred by the Government of India Act 1935.Under this Act. The
Governor General could issue a proclamation whenever he believed 'a grave emergency exists
whereby the security of India was threatened by war or internal disturbance . It was used in
1939 for the first time following declaration of war between Britain and Germany.
CENTRAL POWER CONSOLIDATION EXERCISE
 National – 352:
 War, external aggression, Armed Rebellion
 Applied to a specific part of India (42CA, 1976) or even the whole country
 Three times- 1962, 1971, 1975
 State – 356:
 Failure of constitutional machinery in a state

 Imposed more than 125 times
 Financial – 360:
 Threat to financial stability or credit of India. Not imposed so far

12
OTHER PROVISIONS RELATING TO EMERGENCY

 Art 22 : Nation had gone through the experience of harshness of such powers so there was
discontent about its inclusion. Tremendous misuse of the power was feared which proved
right in the future
 Article 123 and 213: Presidents and the Governor were empowered to issued ordinances if the
situation in their opinion so demands. This power was misused many times by both central
and state governments. The Supreme Court declared that this powered is not immune from
judicial review
EVOLUTION
38th Constitution Amendment Act of 1975-
 It excluded judicial review of the satisfaction of President under Article 352(1)
 The amendment provided for another proclamation of emergency even when there
was already one proclamation was in existence.
39th Amendment Act of 1975-

 It introduced changes in the method of deciding election disputes relating to the four high
officials of the State, viz, president, Vice President, Prime Minister and the Speaker.

13
 As regards the President and Vice- President, the basic change introduced was that jurisdiction
was taken away from the supreme Court to decide any doubts and disputes and disputes
arising in connection with their election.
 Elections of the Prime Minister and the speaker to the Parliament were also taken out of the
election dispute settling mechanism envisaged in Art.329.
42nd CA, 1976
 It is the most controversial and debatable of constitutional amendments ever undertaken in
India
 The most objectionable feature was that it was undertaken during emergency period, when
most of the opposition leaders were detained in jail under preventive detention.
 Some of the changes were intended towards more powerful executive away from Judicial
scrutiny
44th CA, 1978
 The expression "internal disturbance" was substituted with the expression "armed rebellion."
 The advice to the President to proclaim emergency shall be rendered by the Cabinet in writing.
The Emergency Proclamation, which was to be approved by both houses of parliament by
resolution, passed by a simple, majority was amended to be approved by special majority.
 The proclamation once approved could remain in force for any length of time without fresh
parliamentary approval. Now this amendment provided for its continuance for the period,
which could be continued for a further period of 6 months if approved again.
 Ten percent or more members of Lok Sabha can consider a bill for disapproving the
proclamation.
 The jurisdiction of the high court to issue writs in the nature of Habeas Corpus will not be
suspended so far as Articles 20 & 21 is concerned.
 It provided that a person cannot be detained beyond 2 months unless the detention has been
approved by the Advisory board and the power conferred on the parliament to provide for
longer period has been taken away.
 The most remarkable change the amendment made to Article 359 was to the effect that
fundamental rights guaranteed by the Articles 20 & 21 could not be suspended by Presidential
order under Article 359
 SC review instated

14
ISSUES
 Armed rebellion has not been defined. How many rebels or what types of arms, over what
territorial area would constitute armed rebellion.
 Does the written cabinet advice to the President provide additional safeguards against the
misuse emergency powers? According to him only 'ministers with moral courage' could be
trusted under this provision.
 Structural weakness of the proposed safeguards against emergency control mechanism is
that they do not prevent the dissolution of Lok Sabha during emergency
 As malafide proclamation of emergency is being made justiciable there is doubt that judiciary
alone can provide an institutional safeguard for ensuring that the emergency powers are not
misused.

15
JUDICIARY
INDEPENDENCE OF JUDICIARY
 Separation of Powers - 3 main branches of the State, namely the Legislature,
Executive and the Judiciary; each endowed with separate powers and functions,
such that the operation of one is not subservient to the other.
Thus, each wing of the State is independent and autonomous in itself.
 Courts of the country not answerable to any other branch of the Government.
 Judiciary can serve as an unbiased third party in the adjudication of cases.
 Freedom in appointment of members of the higher judiciary.
SPECIFIC INSTANCES WHEREIN BIAS WAS REFLECTED? (To build context)
 During the era of the Emergency, wherein the State dictated the functioning of the Courts.
 Three senior judges were superseded in the appointment of Justice A.N. Ray as CJI
 Government returned the recommendation for elevation of Justice KM Joseph, Uttarakhand
High Court to the Supreme Court
 Justice Ranjan Gogoi's appointment to the Rajya Sabha after several pro- government
decisions by the Supreme Court
SINCE WHEN IS INDEPENDENCE OF JUDICIARY PART OF BASIC STRUCTURE? (SC JUDGEMENT)

 Independence of the Judiciary was declared as being part of the Basic Structure of the
Constitution in SP Gupta vs. Union of India (1981), popularly known as the First Judges Case
 Reaffirmed by the Supreme Court in the case of Supreme Court Advocates-on- Record vs.
Union of India (1987), popularly known as the Second Judges Case.
APPOINTMENT & REMOVAL

NOTES:
 Judges of the Supreme Court (SC) as well as High Court (HC) are appointed by the President
of the country [SC Judges under Article 124 (2) and HC Judges under Article 217 (1)].

16
 The Chief Justice of India (CJI) is appointed by the President, in consultation with judges of
the SC as well as the HCs. However, as per convention, usually, the senior most judge of the
SC is appointed as the CJI.
 The Chief Justice of a HC is appointed by the President, in consultation with the CJI and the
Governor of the state. In HCs too, convention dictates that the senior most judge of the HC
is appointed as the Chief Justice.
 The process for appointment of judges of the SC was streamlined in the Third Judges Case of
1998, which established a Collegium, consisting of the 4 senior most judges of the Supreme
Court excluding the CJI.
 The Collegium recommends names to the President, who then appoints the recommended
persons as judges of the SC.
 Judges of the HC are appointed by the President on the basis of recommendations made by
a Collegium consisting of 2 of the senior most judges of the SC excluding the CJI and in
consultation with the Chief Justice of the respective HC.
QUALIFICATIONS
 For SC -
 Must be a citizen of India; and
 Judge of a High Court for 5 years; or

 10 years' experience as a practicing advocate of a HC; or
 Distinguished jurist as per the President
 For HC -
 Must be a citizen of India; and
 Holding any judicial office for 10 years; or

 10 years' experience as a practicing advocate of a HC.
 The current process reflects plurality and concurrence in the system of appointment
of judges.
 Current Affairs: The Parliament enacted the Supreme Court (Number of Judges) Amendment
Act, 2019, pursuant to which the number of SC judges increased from 31 to 34.

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REMOVAL OF JUDGES
 Judges of the SC as well as the HC are removed by President upon the impeachment of the
judge by the Parliament.
 The Parliament may remove (not impeach) a sitting judge on grounds of proved misbehaviour
and incapacity.
 The Judges Enquiry Act, 1968 provides the detailed procedure for removal of judges.
 A judge is removed by the Parliament by way of a motion passed by a special majority of the
members of the House, i.e. two-thirds majority of members present and voting such that the
said number is greater than half of the total strength of the House.
IMPACT OF APPOINTMENTS AND REMOVALS ON INDEPENDENCE OF JUDICIARY?

 The current system of appointment of judges is primarily controlled by the Judiciary itself.
 The Collegium system ensures that senior members of the Higher Judiciary are directly
involved in the appointment of Judges to the Higher Judiciary with minimal to no interference
from the Legislature or the Executive.
 The recommendations of the Collegium are customarily accepted by the President. This
ensures that the Independence of the Judiciary remains sacrosanct.
 However, given that the President always acts on the advice of the Council of Ministers, the
Government does play a role in the appointment of Judges. [e.g. of when recommendation
not followed - Justice KM Joseph of Uttarakhand High Court, Justice Krishna Bhat (sessions
judge)]
 Process of removal of judges rests entirely with the Parliament. This acts a measure for checks
and balances within the wings of the State.
PRIMARY PROBLEMS IN THE CURRENT PROCESS?

 Primary problem - Judiciary appoints itself - possibility of backdoor politics,
 lack of transparency, objectivity and accountability.
 lack of detailed and specific guidelines for appointment of judges further

 process for impeachment of judges is extremely detailed and tedious, therefore, judicial
appointments are rarely challenged.
 [hollow independence of the judiciary. Although the President, as the Head of State, appoints
the judges, the President is, in reality, bound by the recommendation of the Council of
Ministers, or the elected representatives. Consequently, the Government/Executive is

18
indirectly involved in the appointment of judges, and as a result, in the functioning of the
Judiciary].
WHY DOES INDIA HAVE SUCH A PROCESS?

 Process of appointment and removal of the Judges of the Supreme Court and High Courts is
reflective of the separation of powers between the three wings of State
 System of inter se checks and balances between wings of Government in place within the
constitutional machinery of the country, where no one wing of the State becomes vested
with ultimate power.
STEPS TAKEN SO FAR TO BETTER THE PROCESS

(NJAC, Collegium reforms)
 Process of appointment of judges was sought to be

amended by the introduction of the National Judicial
Appointment Commission Act, 2014.
 The NJAC Act sought to address the criticisms that the

Judiciary appointed itself, which led to lack of
transparency and objectivity in the appointment
process.
 NJAC Act was struck down by the SC in the year 2015:
 for failure to follow the due procedure laid down to enact such a statute, and
 on account of the NJAC Act violating the Independence of the Judiciary, and
resultantly the Basic Structure of the Constitution.
 Simultaneously, the SC revived the Collegium System and subsequently directed the
Government to supplement the Memorandum of Procedure for appointment of Judges of SC
and HC taking into account factors like eligibility, transparency in the appointment process,
establishment of Secretariat and Complaint mechanism in consultation with the SC
Collegium/CJI.
 Reforms to the Collegium System - such as online disclosure of meetings of the collegium.
 Office of CJI brought under the scope of the RTI Act, by SC, which held that Office of CJI is a
'public authority'.

19
RECOMMENDATIONS OF COMMITTEES ETC. AS POSSIBLE SOLUTIONS?

 14th Law Commission Report (LCR) suggested that every appointment to the High Court and
the Supreme Court should be made with the concurrence of the CJI.
 80th LCR suggested that the CJI consult three senior most colleagues during appointments
 121st LCR recommended the constitution of National Judicial Commission
 High Courts Arrears Committee in the 1970s suggested that exercise for filling the vacancy
must start well in advance so that the selection can be finalized by the time the vacancy
occurs. It recommended that if the recommendation made by the Chief Justice of the High
Court is not dealt with within one month from the date of its receipt, the State Government
must be deemed to have accepted the recommendation and action must be taken by the
Central Government for expeditious disposal of the proposal.
 The NCRWC recommended the setting up of NJAC with detailed suggestions as to
composition, procedure of appointment and even removal of judges.
WOMEN & JUDICIARY
• For the first time there are four sitting women judges in the SC.
• While the primary criteria for SC appointments has always been seniority, some argue that
gender should also be an important consideration.
• 76 out of the 650 occupied High Court judges are currently women. This amounts to 11.7% of
all the current judges of the 25 High Courts in India
• In its 71-year history, the SC has developed certain unwritten criteria for the selection of
judges, outside of what is prescribed by the Constitution. The most relevant criteria
is seniority, with the most senior High Court (HC) judges being preferred for appointment.
Usually, Chief Justices are appointed to the SC. Some argue that this unwritten criterion does
not take gender diversity into account, and that it should be included.
• In August 2021, three women judges were appointed to the Supreme Court. B.V. Nagarathna
J is in line to become the first woman Chief Justice of India (CJI) in 2027. It appears that
alongside seniority, ensuring gender diversity was also an important consideration with this
round of appointments.
• It appears that appointing diverse judges has been given priority while seniority has taken a
backseat. For instance, although Akhil Kureshi (Chief Justice of the Tripura HC) is one of the
senior-most HC judges, he was not appointed to the SC. Meanwhile, Nagarathna J was 33rd in
the High Court seniority list before she was elevated to the Supreme Court.

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Judicial Appointments: Merit, Transparency and Diversity

• Since 1950, there have been 247 Supreme Court judges. Only eight have been women. As of
June, only 76 out of 650 HC judges were women. Hima Kohli CJ (Telangana HC) was the only
woman HC Chief Justice. She has now been appointed to the SC which leaves the HCs with no
woman Chief Justices.
• The higher judiciary has not taken active measures to ensure gender diversity. Merit has
been seen as the primary criteria for appointments. Seniority of HC judges has
been considered to be a proxy for merit in discussions regarding Supreme Court
appointments. This stems from the 14th, 79th and 80th reports from the Law Commission of
India where communal, political and regional considerations were rejected.
• The Supreme Court has always considered seniority as a convention for appointments. This
was briefly rebuked by Prime Minister Indira Gandhi when she appointed Justice A.N. Ray as
CJI in 1973. CJI Ray was appointed despite there being three sitting judges more senior than
him. Following the Emergency, the Court further prioritised seniority in order to limit the
interference of the executive.
• However, making seniority the guiding principle for appointment arguably excludes
marginalised groups in India, including women. These groups face multiple barriers of entry
in gaining positions in the higher judiciary.
• Along with this, India is the only constitutional democracy where the judiciary appoints its
own judges. Some argue that this results in a lack of transparency and accountability in the
collegium’s decisions. The considerations and the discussions behind these decisions are not
available to the public There is a lack of clarity on the criteria for appointment.
• On the other hand, the South African Constitution provides for a Judicial Service Commission
comprising members of the judiciary, executive and legislature. Further the Constitution
expressly provides that the judiciary should reflect the racial and gender composition of the
country. This has resulted in a radical change in the composition of the South African Judiciary.
Between 1994 and 2011, the number of women in the judiciary had increased from 9 to 61.
SC & SUO-MOTO
• A ‘suo-moto’ power is granted by S. 23 of the Contempt of Courts Act, 1971 in regard to
contempt of court. Many other common law jurisdictions give Courts this power. However,
the use of the procedure in writ or judicial review jurisdiction has been novel to India, where
it is used to scrutinise or test executive (in)action.
• Courts often exercise their suo-moto jurisdiction by taking up matters based on media reports
or act on letters written to them.
• Articles 32 and 226 confer the Supreme Court (SC) and High Courts (HC) wide constitutional
and public law powers. These powers have been interpreted to take up cases of their own

21
volition – without any petition being formally filed. Suo moto powers have historically
developed contemporaneously with public interest litigation, where procedural requirements
were relaxed in the interest of justice.
• Courts often take up matters based on media reports or act on letters written to them. For
example, in Sunil Batra v Delhi Administration (1980), the Supreme Court took up the matter
based on a letter written to a judge about the torture of prisoners and violations of prisoners’
fundamental rights. Suo moto powers have also been widely used to tackle environmental
issues, including air pollution in Delhi and the remediation of polluted rivers.
• Since 1990, the SC has heard nearly 50 suo moto cases, often dealing with human rights and
government policy. Several cases have been criticised for allowing the courts to undertake
‘heroic interventions’ that often infringe upon the powers of the legislature and the
executive.
• Media support and public applause received by suo moto petitions encourages activist judges
to focus on the ‘immediacy and effectiveness’ of providing a solution, without carefully
considering the views of parties involved leading to rule of law concerns.
• Earlier this year, the HC and SC used their suo moto powers to hear COVID related issues, such
as access to essential supplies. The SC COVID related orders effectively compelled the Union
to draft a policy, and change their crisis management method. Judicial intervention in this
instance was largely welcomed, in light of executive inaction, perceived or otherwise.

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CONTEMPT OF COURT
WHAT IS THE CONTEMPT OF COURT?

 Contempt of Court refers to the offence of
showing disrespect to the dignity or authority
of a court.
 As a concept, Contempt of court proposes to protect
judicial institutions from motivated attacks and
unwarranted criticism.
 Used as a legal mechanism to punish those who lower its authority, in order to safeguard the
interests of the public and public confidence in the administration of justice.
 The Supreme Court and High Courts derive their contempt powers from the Constitution
(contempt of court is one of the restrictions on freedom of speech and expression under
Article 19(2))
 Article 129 of the Constitution conferred on the Supreme Court the power to punish
contempt of itself.
 Article 215 conferred a corresponding power on the High Courts.
 The Contempt of Courts Act, 1971 (“the Act”), gives statutory backing to the idea. The
Act was significantly amended by the 2006 Amendment to the Act.
THE CONTEMPT OF COURTS ACT, 1971

 The Act specifies that the Supreme Court as well as the High Courts have the power to try
and punish the offence of contempt.
 High Courts also have the power to punish acts of contempt against courts subordinate to
them.
 In addition to these courts, certain administrative tribunals also have been given the power
to punish for contempt, in their governing statutes
 The Contempt of Court Act, 1971, outlines the procedure in relation to investigation and
punishment for contempt.
 According to the Act, contempt is divided into civil and criminal contempt.
 The Act provides that a charge of contempt may be brought against a judge, magistrate or
any other person acting judicially, for contempt of her own court or any other court in a
manner similar to any other individual. The provisions of the Act shall be applicable in the same
manner to such persons, as any other individual.

23
*‘Scandalising the Court’ broadly refers to statements or publications which have the effect of
undermining public confidence in the judiciary.
The punishment for contempt of court is simple imprisonment for a term up to six months and/or a fine
of up to ₹ 2,000.
WHY IN THE NEWS?

Contempt of Court has recently been in the news for the infamous case against Advocate Prashant
Bhushan for two of his tweets, regarding the functioning of the Apex Court as well as the Chief
Justice of India (Justice Bobade), which have held to be in contempt by the Supreme Court. Prashant
Bhushan was fined Re. 1 as a penalty for the contempt.
SPECIFIC POINTS
 What is not contempt of court?
 Fair and accurate reporting of judicial proceedings.

 Fair criticism on the merits of a judicial order after a case is heard and disposed of.
 Is truth a defence against a contempt charge?

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 Initially Truth not a defence against a contempt charge.

 Amendment to the Contempt of Court Act in 2006 introduced truth as a valid defence,
if it was in public interest and was invoked in a bona fide manner.
ARGUMENTS IN FAVOR
 Reduction in respect to the Judiciary: Amendment to the definition of contempt may reduce
the overall impact of the law and lessen the respect that people have for courts and their
authority and functioning.
 Constitutional Source of Contempt Power: Supreme Court and High Courts derive their
contempt powers from the Constitution. The Contempt of Court Act, 1971, Act only outlines
the procedure in relation to investigation and punishment for contempt. Therefore, deletion
of the offence from the Act will not impact the inherent constitutional powers of the superior
courts to punish anyone for its contempt.
 Impact on Subordinate Courts: The Contempt of Court Act allows High Courts to punish for
contempt of subordinate courts. Thus, if the definition of contempt is removed, subordinate
courts will suffer as there will be no remedy to address cases of their contempt. The Court
reject that Law or any of its parts which is found to be unconstitutional or against the
constitution.
 Ambiguity: Amending the definition of contempt will lead to ambiguity; superior courts will
exercise power of contempt under the constitution and may give multiple definitions and
interpretations to what constitutes contempt. Retaining the definition fulfils the purpose of
clarity according to the commission.
 Adequate Safeguards: The Law Commission of India noted that there are several safeguards
built into the Act to protect against its misuse. For instance, the Act contains provisions which
lay down cases that do not amount to contempt and cases where contempt is not punishable.
ARGUMENTS AGAINST CONTEMPT OF COURT

 Against Civil Liberties: Contempt law in conflict with freedom of speech and expression as a
fundamental right.
 Use of contempt law by judiciary causes chilling effect on exercise of freedom of
speech.
 Former Justice of Supreme Court, V.R. Krishna Iyer, famously termed the law of
contempt as “having a vague and wandering jurisdiction, with uncertain boundaries;
contempt law, regardless of the public good, may unwittingly trample upon civil
liberties”.

25
 Wide Scope of Contempt: The definition of criminal contempt in India is extremely wide, and
can be easily invoked. Courts may also initiate proceedings suo motu.
 Truth and Good Faith as Defences are seldom entertained, although included as defences
under the Contempt of Courts Act.
 International Disuse: Contempt of court has practically become obsolete in foreign
democracies, with various jurisdictions recognising it is an archaic law.
 England abolished the offence of “scandalizing the court” in 2013.
 Canada ties its test for contempt to real, substantial and immediate dangers to the
administration.
 American courts also no longer use the law of contempt in response to comments on
judges or legal matters.
CONCLUSION
The Law Commission of India looked into the issue of Contempt and recommended that the
provision for contempt of courts be retained. However, it also recommended the definition of
contempt in the Contempt of Court Act should be restricted to civil contempt, i.e., wilful
disobedience of judgments of the court.

26
PENDENCY
STATE OF PENDENCY IN INDIAN JUDICIARY

 Pendency of cases at the SC has increased in 2021 by 7.3%. Currently 69,555 cases are pending.
 Approx. 3.5 crore cases pending in the judicial

system (approx. 88% of pending cases in lower
judiciary, i.e. district and subordinate courts).
 More than 64% of all cases are pending for more

than 1 year.
 Ease of Doing Business Report of the World Bank
for 2018 and 2019 shows that the time taken to
decide a case has remained static at 1,445 days.
 Consistent increase in pendency of cases in the last

decade, with the highest number of cases pending in the state of Uttar Pradesh.
 Number of under-trials in prison is more than double that of convicts.
REASONS OF PENDENCY
 Increased awareness of rights of common man due to socio-economic advances, which has
also improved capacity to sue.
 New mechanisms that have simplified the process of judicial cognizance (E.g.: Public Interest
Litigation) and new rights granted to the general public (E.g.: Right to Information), which
increases awareness and emboldens litigants.
 Vacancies in Judicial posts and lack of sufficient judges, especially in lower judiciary.
 Insufficient number of courts.
 Increased litigation from the Government (e.g. tax and revenue cases).
 Current Affairs POI - Vodafone tax case that has continued and fresh suits filed by the
Government, despite a Supreme Court judgement in the matter.
 Poor judicial quality in lower courts, dissatisfaction amongst litigants.
 Archaic/Vague Laws requiring interpretation from higher
judiciary.
 Lack of strict timelines for strict proceedings.
Repeated adjournments (Tareekh pe tareekh!).

27
CONSEQUENCES OF PENDENCY
 Denies the poor man and under-trial prisoners their due justice.
 Economic reforms - only on paper without speedier justice system.
 Foreign investors hesitate to invest in India due to the delayed delivery of justice, which
affects the success of programs like ‘Make in India’.
 Judiciary becomes overburdened; loses efficacy and efficiency.

 Erodes social infrastructure.
 Overcrowding of prisons.
 Financial drain of the coffers of the State; judicial delays cost India an estimated 1.5% of its
GDP annually.
 High time, energy and money costs for litigant/common man, resulting in loss of the common
man’s faith in the justice system.
RECOMMENDATIONS TO ADDRESS PENDENCY

 Introduce time limits for all cases and having a definite time frame to dispose the cases by
setting annual targets, and action plans for the subordinate judiciary and the High Courts (E.g.
Introduction of rigid time frames for filing of pleadings in the Commercial Courts Act, 2015, by
way of Amendment to the Civil Procedure Code.)
 Increase in number of judges (E.g., The increase in the number of Supreme Court judges from
31 to 34 in 2019.)
 Decentralize working of the Supreme Court by introducing Regional Benches (this

recommendation was also put forth by the Law Commission.)
 Increase working hours of courts.

 Increase functioning and efficiency of ADR; effective utilization of mechanisms such as Lok
Adalats and Gram Nyayalayas.
 Establishment of Tribunals, Fast Track Courts and Special Courts to dispense important cases
at the earliest.
 Introduction of the All-India Judicial Services (AIJS) for appointment of members to the lower
judiciary.(The Union Government plans to introduce a bill for implementation of the AIJS after
consultation with the higher judiciary)
 Better case and court management.
 Revamping of National Judicial Data Grid.

28
 Use of Information technology (IT) solutions:

 Digitization of court registry.
 E-filing of suits across courts.
 Video conferencing hearings.
 Digitization of court database, use of ERP tools for database management.

 Real time updates of case status, cause list etc.
 (Supreme Court and most High Courts as well as several tribunals and registries have
effectively engaged IT solutions for conduct of court proceedings during the SARS-
COV-2 pandemic related lockdown.)
 Malimath Committee Report
 Increase in number of courts and judges.
 Reduction in period of vacations for the Courts by 21 days.
 ‘Arrears Eradication Scheme’ – pending cases prioritized and settled through Lok
Adalats; no adjournment allowed.
MEASURES IMPLEMENTED TO REDUCE PENDENCY

 Centre has introduced a mobile application ‘JustIS’ for efficient court management by judges.
(App developed by the National Informatics Centre.)
 Introduction of “fast-track” courts, jail-adalats (“prison courts”), and plea-bargaining.
 Campaign Mode to reduce pendency through Pendency Reduction Campaign in second half
of the year 2011.
 Resolution aimed at prioritization of disposal of cases through Mission Mode was passed in
April 2016.
 The Supreme Court, in the case of Hussain & Anr. v. Union of India (2017), issued timelines for
completion of criminal trials and appeals and directed High Courts to plan and monitor the
speed of trials.
 The Supreme Court has, in recent times, given strict guidelines to not allow pleas for
unnecessary or groundless adjournments, used as dilatory tactics.

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ALL INDIA JUDICIAL SERVICES
WHAT IS ALL INDIA JUDICIAL SERVICES (AIJS)? - OVERVIEW

 AIJS first proposed by the 14th Report of the Law Commission of India in 1958.
 The recommendation aimed at creating a centralised cadre of District Judges that would draw
better talent.
 At present, various high courts and state service commissions hold exams to recruit judicial
officers.
 The idea was proposed again in the Law Commission Report of 1978, which discussed delays
and arrears of cases in the lower courts.
 In 1992, the Supreme Court in All India Judges’ Assn. (1) v. Union of India directed the Centre
to set up an AIJS. In a 1993 review of the judgment, however, the court left the Centre at
liberty to take the initiative on the issue.
 In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and
Justice in its 15th Report backed the idea of a pan-Indian judicial service, and also prepared a
draft Bill.
 In 2017, the Supreme Court took Suo-motu cognizance of the issue of appointment of district
judges, and mooted a “Central Selection Mechanism”.
WHY IT IS REQUIRED?
 Recruitment in lower judiciary happens state-wise resulting in lower standard of district court
judges.
 Many judicial posts remain vacant despite an extraordinarily high number of pending cases.
 To standardise process of appointments to lower judiciary.

 To create a carder of dedicated, professional judicial officers.
WHO RECOMMENDED AIJS?
 The idea of judicial service was introduced as early as in the 1950s.
 The provision of AIJS was also included in Article 312 of the Constitution through the 42nd
amendment in 1976.
 NITI Aayog, in its report, ‘Strategy for New India@75’, also mooted the creation of an All India
Judicial Service (AIJS) for making appointments to the lower judiciary.

30
AIJS IN THE NEWS

 Draft bill to introduce AIJS prepared by the Government, to be introduced to the Union
Cabinet after seeking the views of the Higher Judiciary
 2019 - The Union Govt spearheaded a consultative process to create an AIJS
 Initially, only 4 states and 2 HCs supported the proposal; 8 rejected it, 5 States proposed
changes, and 11 are yet to respond
 July 2021 - Recently, the Centre took the ordinance route to effect changes in the appointment
of members to various tribunals, many were even abolished
CONSTITUTIONAL PROVISIONS
 Article 233(1)- appointment, promotion, posting of District Judges in any State shall be done
by Governor, in consultation with that State’s High Court
 42ndConstitutional Amendment, 1976-
 Article 312(1) was amended- it empowered the Parliament to make laws for the
creation of one or more AIS, common to both Union & States
 Article 312(3) places a restriction that such a service shall not include a post inferior to
that of a district judge
 A significant change was also brought about in the Seventh Schedule- Entry 3 of List II
(State list) in its entirety was placed at Entry 11A in List III (Concurrent List- where the
Union Law prevails over the State law, generally) {“Administration of Justice;
constitution and organization of all courts, except the Supreme Court and the High
Courts”}
ARGUMENTS IN FAVOR
 It could be an ideal solution for equal representation of marginalised and deprived sections of
the society.
 Most States already have a reservation policy in place.
 TN provides a roster-based policy of 69%, of which 30% are for women.

 States like UP can immensely benefit from the AIJS - there is merely 20% reservation
for women.
 Efficiency and efficacy of judiciary would be increased.
 Transparent and efficient method of recruitment would be followed.

31
 The issue of pendency and issue of delay of cases would be solved to a great extent.
 Corruption, nepotism etc. would be strongly dealt with.
 Best legal talent across the country would be selected on the basis of merit.
 Better qualified judges in the lower judiciary would translate into more experienced judges in
the higher judiciary.
 Public faith in the judiciary would be restored.

 Favoured by various eminent Bodies- Chief Justices’ Conference, Law Commissions
 Supreme Court: ➤ Judgements in favour of AIJS- All-India Judges Case of 1992, All India
Judges Association vs. UoI of 2002. ➤ The Court accepted most recommendations of the
Shetty Commission and directed the government accordingly.
ARGUMENTS AGAINST
 Article 233 vs. 312- What was initially, essentially intended to be the prerogative of the State
will now be that of the Union. When such fundamental powers of the States get curbed, it
affects the basic principle of federalism and is against the basic structure doctrine.
 May lead to conflict between Centre & State as the power to recruit judicial officers so far
rests with the states- it would take away the powers of the States and HCs to appoint and
administer subordinate judges.
 Issue of differences in local laws of each state.
 Local languages and dialects would pose problems in a hyper technical field such as law.
 Legal Education in India is mismanaged. Except for a few well reputed law schools across the
country, legal education is not prioritized.
 It will be difficult for the less privileged to enter the profession.
 Currently, the judges of subordinate courts are appointed by the governor in consultation
with the High Court which will not be so if AIJS is implemented. This may be construed as a
violation of the Independence of Judiciary as some other body will have a control in
appointments.
 There is no substantial improvement in the existing efficacy of the procedure for filling the
vacancy in the judiciary.

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CONCLUSION
 Although AIJS proposes to solve the problem of judicial vacancies, it would be crucial to first
conduct a detailed investigation into the reasons for judicial vacancies in poorly performing
states so as to structure AIJS in a manner to solve the inherent issues.
 Moreover, after the selection of candidates, a Judicial service officer can be provided
sufficient training to handle the job, similar to the training imparted to candidates of IAS, IPS,
IFS and other civil services, in order to resolve state-specific issues. A meritocratic judiciary is
the need of the hour which is possible with a competitive recruitment process. Nevertheless,
the efficacy of the AIJS would depend on its potential to efficiently address existing issues
and impartiality in its implementation.

MAINS CRASH
COURSE
POLITY: THEME 7, 8 & 9

Representation of People’s Act;
Constitutional posts; Statutory,
regulatory and quasi-judicial body
1
POLITY THEMES
S.NO. THEME

3 Separation of Powers between various organs, Dispute Redressal Mechanisms and

Institutions.


and Departments of the Government
8 Appointment to various Constitutional Posts, Powers, Functions and Responsibilities

of various Constitutional Bodies.

2
YEAR MARKS/WORDS QUESTIONS
2013 10/200 The product diversification of financial institutions and insurance

companies, resulting in overlapping of products and services
strengthens the case for the merger of the two regulatory agencies,
namely SEBI and IRDA. Justify.
2013 10/200 A national Lokpal, however strong it may be, cannot resolve the
problems of immorality in public affairs’. Discuss.
2014 12.5/200 National Human Rights Commission (NHRC) in India can be most
effective when its tasks are adequately supported by other
mechanisms that ensure the accountability of a government. In light
of above observation assess the role of NHRC as an effective
complement to the judiciary and other institutions in promoting and
protecting human rights standards.
2015 12.5/200 For achieving the desired objectives, it is necessary to ensure that the
regulatory institutions remain independent and autonomous. Discuss
in the light of experiences in recent past.
2016 12.5/200 Exercise of CAG’s powers in relation to the accounts of the Union and
the States is derived from Article 149 of the Indian Constitution.
Discuss whether audit of the Government’s policy implementation
could amount to overstepping its own (CAG) jurisdiction.
2016 12.5/200 “The Indian party system is passing through a phase of transition
which looks to be full of contradictions and paradoxes.” Discuss.
2016 12.5/200 What is a quasi-judicial body? Explain with the help of concrete
examples.
2016 12.5/200 What is a quasi-judicial body? Explain with the help of concrete
examples.
2017 10/150 ‘Simultaneous election to the Lok Sabha and the State Assemblies will
limit the amount of time and money spent in electioneering but it will
reduce the government’s accountability to the people’ Discuss.
2017 15/250 To enhance the quality of democracy in India the Election Commission
of India has proposed electoral reforms in 2016. What are the
suggested reforms and how far are they significant to make
democracy successful?
YEAR MARKS/WORDS QUESTIONS

3
2017 15/250 Is the National Commission for Women able to strategize and tackle
the problems that women face at both public and private spheres?
Give reasons in support of your answer.
2018 10/150 In the light of recent controversy regarding the use of Electronic
Voting Machines (EVM), what are the challenges before the Election
Commission of India to ensure the trustworthiness of elections in
India?
2018 10/150 Whether National Commission for Scheduled Castes (NCSC) can
enforce the implementation of constitutional reservation for the
Scheduled Castes in the religious minority institutions? Examine.
2018 10/150 The Comptroller and Auditor General (CAG) has a very vital role to
play.” Explain how this is reflected in the method and terms of his
appointment as well as the range of powers he can exercise.
2018 15/250 How is the Finance Commission of India constituted? What do you
know about the terms of reference of the recently constituted
Finance Commission? Discuss..
2018 15/250 Multiplicity of various commissions for the vulnerable sections of the
society leads to problems of overlapping jurisdiction and duplication
of functions. Is it better to merge all commissions into an umbrella
Human Rights Commission? Argue your case.
2019 15/250 On what grounds a people’s representative can be disqualified under
the Representation of People Act, 1951? Also mention the remedies
available to such person against his disqualification.
2019 15/250 The Attorney-General is the chief legal adviser and lawyer of the
Government of India.” Discuss
2020 10/150 “There is a need for simplification of procedure for disqualification of

persons found guilty of corrupt practices under the Representation of
peoples Act” Comment.
2020 10/150 “Recent amendments to the Right to information Act will have
profound impact on the autonomy and independence of the
Information Commission”. Discuss

4
Focal Areas
 Constitutional bodies- FC, CAG, AG, NCSC, ECI

 Elections
 Regulatory bodies
 Representation of People’s Act

 Statutory bodies- NCW, NHRC, CIC
What to Prepare?
• Concepts related to elections- ECI, EVMs & Challenges, Criminalisation of politics, Electoral
reforms
• RoPA (1950 & 1951)- disqualification provisions and loopholes
• Regulatory Policy Review
• Constitutionalization of Commission
• Basic differences between various kinds of bodies

• General analysis of non-constitutional bodies

5
ELECTIONS
General elections (LS)

 Members are elected from a list of candidates who contest from their respective
constituencies (545 members)
 Winning candidates are called MPs

 Term of 5 years, unless dissolved by President or CoM
 Universal Adult Franchise followed
State Legislative Elections
• Direct election from respective constituencies
• Term of 5 years unless dissolved by the Governor

• Universal Adult Franchise
• Total strength depends on size and population of State
Upper House elections (RS)
 Elected by MLAs, not directly by people
 Upto 12 candidates nominated by the President for contribution in the field of art, science,
literature and social service
 Term- 6 year, with 1/3rd members retiring every second year

By Elections
• Held to find suitable replacement for a position or office .either vacant before the term ends
• Also known as Bypolls.
• Reasons- resignatio, death, conviction, or, two or more seats won by the same candidate .
Current Affairs update- 104th CA, 2020 extended the reservation of seats for SCs and STs in LS and
State Assemblies for a period of 10 years. Same extension not applicable for Anglo-Indians
“ The Ballot is stronger than the Bullet.”

 Abraham Lincoln

6
ELECTION COMMISSION OF INDIA

 Election Commission of India (ECI) is federal body provided for in the
Indian Constitution.
 It is responsible for monitoring and administering all electoral
processes of India.
 Ensures:
o Free and fair elections that are devoid of bias.
o Conduct of members pre-elections, during elections and post-elections are as per

statutory legislation.
 Election related disputes are handled by ECI.
 When enacted laws make insufficient provisions to deal with a certain situation during the
conduct of elections, ECI has the residuary powers under the Constitution to act in an
appropriate manner.
o Article 324 vests “in an Election Commission” the “superintendence, direction and
control of elections”.
o The Supreme Court judgement in Mohinder Singh Gill & Anr vs The Chief Election
Commissioner and Others (1977) held that Article 324 “operates in areas left
unoccupied by legislation.
o It was noted that Constitution left the scope of Residuary Power to Commission.
CERTAIN IMPORTANT PROCEDURE

 Candidates file their nomination papers with ECI after which a list of candidates is made.
 Parties cannot use Government resources for campaigning.

 Campaigning must end by 6 pm, 2 days before polling day.
 Collector of each district is in charge of polling.
 Polling is held from 7:00 am to 6:00 pm with Government officers as poll officers at
polling stations.
 Electronic Voting Machines (EVMs) are used to prevent rigging of elections, as opposed to
ballot boxes.
 Citizen has his/her left index finger marked by indelible ink after casting vote. This procedure
is being practiced since 1962.
 Negative vote can be exercised through ‘None of The Above’ (NOTA) option (since 2013).

7
 Physical presence at the voting booth is mandatory.

 Prisoners do not have the right to vote
 Postal voting is accessible by –
 Service Voters (employees of Armed Forces and their wives, employees of
Government posted abroad)
 Disabled citizens
 Citizens above age of 80
 Citizens in preventive detention
Current Affairs – Recently, senior citizens above the age of 65 and voters who test positive for
COVID-19 or are suspected to be COVID-19 affected were allowed to cast their vote by post.
ELECTRONIC VOTING MACHINES (EVMs)

 EVMs were first used in the 1997 election and became the
only method of voting in 2004.
 They are time savers when it comes to counting results.
Voter-Verified Paper Audit Trail (VVPAT) was introduced on
14 August 2014
 It produces a paper slip, called ballot slip, that contains the
name, serial number, and image of the candidate selected
by the voter for his vote. VVPAT and EVMs have been used in every assembly and the general
election in India since 2019.
 Post the 2019 general election, ECI declared that there were no mismatches between EVM
and VVPAT.
 Important – In case of discrepancy between VVPAT and EVM results, printed paper slips count
is taken as final.

8
ELECTORAL REFORMS
CONSTITUTIONAL WHAT IT DEALS WITH

ARTICLES RELATED TO
ELECTORAL REFORMS
ARTICLE 324 Superintendence, direction, and control of elections to be vested in an

Election Commission
ARTICLE 325 No person to be ineligible for inclusion in or to claim to be included in

a special, electoral roll on grounds of religion, race, caste or sex.
ARTICLE 326 Elections to the House of People and to the Legislative Assemblies of
States to be on the basis of adult suffrage.
ARTICLE 327 Provides power to the Parliament to make provision with respect to
elections to Legislature.
ARTICLE 328 Provides power to Legislature of a State to make provision with

respect to elections to Legislature.
ARTICLE 329 Provides to create a bar on the court to make any interference by
courts relating to electoral matters.
Vice President of India, M. Venkaiah Naidu has highlighted two issues in India’s experience with
democracy –
 Misuse of money power in politics and elections, and

 Attempts to entice voters with short-term benefits (populist schemes for electoral
advantage) at the cost of governance, adversely impacting long term interests of the poor,
and the middle class.

9
NEED FOR ELECTORAL REFORMS

 Money and Muscle Power
 Campaigning, publicity, general party expenses in almost every constituency exceed
permissible limit of expenses. Expenditure which is accounted for and legitimate is a
small percentage of actual costs.
 High electioneering costs leads to corruption.
 Reports of violence, booth capturing, threatening, intimidation and other illegal means
are common nationwide practices during elections.
 Illegal means of coercion such as giving out ‘freebies’, food supplies at cheapest rates,
electronic devices, etc. to voters in return for their vote.
 Paid misinformation via news giving out fake reports on opposing parties in order to
deceive voters destroy the concept of ‘free and fair’ elections.
 Vote buying displaces able politicians from posts of MP/MLA, and gives it to rich
candidates instead.
 Floating of non-serious candidates by parties to cut down rival candidate’s votes.
 Caste/communal practices, such as providing incentives to certain caste/religious groups in
return for their votes, or candidate winning over people on grounds of having same
caste/religion etc., defeats the whole purpose of democracy and equality.
 Misuse of Government machinery by party currently in power during elections leading to
misuse of public funds as well as unfair advantage on electoral playground.
 POI– Out of 533 candidates elected to the 17th Lok Sabha (2019-present), 475 Parliamentarians
(accounting for 88%) are ‘crore-patis’ (multimillionaires) implying ‘Rich Parliamentarians, Poor
Indians’.
CRIMINALIZATION OF POLITICS AND POLITICIZATION OF CRIMINALS

 Anti-social elements, and convicted criminals enter electoral politics owing to the strong
nexus between criminals and some politicians through loopholes in the current system.
 Criminals are able to make it in the political arena because of their financial clout.
 These criminals have sufficient money and muscle power to win them elections for
political parties that are only too eager to oblige such a ‘winnable candidate’.
 Parties field criminals in elections in return for their funds and muscle, providing them with
political patronage and protection, and immunity from cases against them.

10
WHY DOES CRIMINILIZATION OF POLITICS PERSIST?

 Previous Court judgements and laws have not been implemented effectively.
 Anonymous feature in Electoral Bonds (2017) – ‘neither the donor nor the political party is
obligated to reveal whom the donation comes from’ allows element of secrecy in political
funding.
 Criminal Justice System is ambiguous on the repercussions of not following recent orders.
 Due to a flawed justice system, it is observed that conviction rates for politicians is very small,
down to just 6% in criminal cases.
 In effect,‘politicians’ with a criminal record go unpunished and are not barred from contesting
further elections.
DATA
 In 2019 as many as 43% of MPs had criminal cases pending against them” according to the
Supreme Court in the case of Rambabu Singh Thakur vs. Sunil Arora & Ors. (February 2020).
 This judgement was
delivered in a contempt
case filed in respect of
the general disregard
shown by political
parties to the
Constitution Bench
judgment in the case of
Public Interest
Foundation v. Union of
India (2018) to publish
the criminal details of
their candidates on
their respective
websites and print as
well as electronic media
for public awareness.
 The Supreme Court ordered political parties to submit their compliance reports with the ECI
within 72 hours of the judgement, or risk contempt of court action.

11
REFORMS UNDERTAKEN PRE 2000
 Reduction of minimum age for voting from 21 to 18 years (61st Amendment to the
Constitution).
 Deputation to E C I to be considered for personnel working in‘preparing, revising, and
correcting electoral rollsfor elections.’
 Widespread use of E V M s as they are fool-proof,efficient and environment friendly.
 Restriction on contesting more than 2 constituencies.
 Liquor sale ban during period of 48 hours ending with the hour fixed for the conclusion
of poll within a polling area.
 By Election time limit of six months – Bypolls to b e held within 6 months of vacancy.
 Reduction in campaign period.
REFORMS UNDERTAKEN POST 2000
 Ceiling on an individual candidate’s spending although there is no check on how much

a party can spend on a candidate or election:
 50 – 70 lakhs for Lok Sabha elections;
 20 – 28 lakhs for assembly election.
 Expansion of reach of postal ballot in 2013 to 6 categories – service voters;special voters;

wives of service voters and special voters; voters subjected to preventive detention;
voters on election duty and Notified voters.
 National Voter’s Da y on January 25th, marking ECI’s founding day to create awareness
about elections.
 Declaring of criminal antecedents, assets, etc. b y the candidates is required and
declaring false information in the affidavit is now an electoral offence punishable with
imprisonment up to 6 months or fine or both.
REFORMS IN THE TIMES OF COVID

 Bihar, wherein elections were due in the coming months of October-November 2020, has an
electorate of over 70 million, larger than that of several countries, and is set to be the pioneer
of elections in the post COVID era.
 2021- elections were due in WB, Assam, TN, Kerala. Keeping in mind the pandemic, free and
fair elections had to be conducted.
 The ECI has issued guidelines ahead of these elections for conducting general/by elections
during the pandemic.
 As per said guidelines –

12
 Door-to-door campaign, road shows, public gatherings and rallies are still allowed, but
with accentuated restriction and supervision so that there is no slip-up on corona virus
related precautions.
 A group of five persons, including candidates but excluding security personnel, if any,
will be allowed to do door to door campaigning.
 Convoy of vehicles should be broken after every 5 (five) vehicles instead of 10 vehicles
(excluding the security vehicles, if any)
 Nodal Health Officers, Health advisories and disaster management regulations will regulate
conduct.
 Every person will have to wear a face mask during every election-related activity.
 Thermal scanning of all persons shall be carried out.
 Sanitizer, soap and water shall be made available.
 Number of voters at a polling station stands reduced to a maximum of 1,000 from the
usual 1,500.
 Every voter will wear a glove while pressing the button of EVM.
 Quarantined COVID-19 patients will be allowed to cast their votes at the last hour of the poll
day, besides the facility of postal ballot for those already in home or institutional quarantine
for being positive or suspected of being COVID positive.
 ECI’s SVEEP programme to be engaged to make sure safe arrival and safe exit by voters.
Systematic Voters' Education and Electoral Participation Programme (SVEEP) was introduced
in order to educate the voters.
 Election Material Kit will be prepared in a spacious and sufficiently large hall following all
safety, sanitation, and social distancing measures.
 Candidates may file their nomination and affidavit online, and also deposit security money.
 Cut in number of persons to accompany candidates for submission of a nomination to two
persons.
 He/she may seek his/her elector certification for the purpose of nomination online.
ABOUT ONE NATION, ONE ELECTION
 The idea of “One Nation, One Election” envisages a system where elections to all states and
the Lok Sabha will have to be held simultaneously. This will involve the restructuring of the
Indian election cycle in a manner that elections to the states and the centre synchronise.

13
 Currently, elections to the state assemblies and the Lok Sabha are held separately — that
is whenever the incumbent government’s five-year term ends or whenever it is
dissolved due to various reasons.
 Simultaneous elections are not new to India. They were the norm until 1967. But following
the dissolution of some Legislative Assemblies in 1968 and 1969 and that of the Lok Sabha in
December 1970, elections to State Assemblies and Parliament have been held separately.
 The idea of reverting to simultaneous polls was mooted in the annual report of the Election
Commission in 1983. The Law Commission’s Report also referred to it in 1999. In the working
paper that the Law Commission brought out in April 2018, it said that at least “five
Constitutional recommendations” would be required to get this off the ground.
NEED FOR SIMULTANEOUS ELECTION
 Simultaneous polls will reduce the enormous costs involved in separate elections. The costs
of conducting each assembly or parliamentary election are huge. Directly budgeted costs are
around Rs 300 crore for a state the size of Bihar.
 With the Model Code of Conduct imposed, the government goes into a stand-by mode for
prolonged periods of time, thereby suspending all governance and developmental activity.
 The system will help ruling parties focus on governanceinstead of being constantly in election
mode.
 Visible and invisible costs of repeatedly deploying security forces: There are also huge and
visible costs of deploying security forces and transporting them, repeatedly. A bigger invisible
cost is paid by the nation in terms of diverting these forces from sensitive areas and in terms
of the fatigue and illnesses that repeated cross-country deployments bring about.
 Disruption of public life due to frequent elections, the perpetuation of religion, caste and
communal issues across the country and compelling the government to think about
immediate gains to woo voters instead of working for long-term gains— make simultaneous
polls desirable.

14
ISSUES WITH THE SIMULTANEOUS ELECTION

 There are legal and constitutional challenges to this idea. Article 83(2) of the
Constitution provides for a normal term of five years for Lok Sabha. Article 172 (1) provides
for a similar tenure for the State Legislative Assembly. Implementing this measure will require
multiple constitutional amendments, amendments to the Representation of People’s Act,
and other such laws.
AMENDMENTS REQUIRED
1. Article 83: Defines Maximum Duration Of Lower House Of Parliament.
2. Article 172: Defines Maximum Duration Of State Legislature.
3. Articles 85(1): Defines sessions, prorogation, and dissolution of Parliament.
4. 174(1): Defines sessions, prorogation, and dissolution State Assemblies.
5. Article 75(3): Council of ministers in Lok Sabha.
 The No-confidence Motion would be required to be changed to a Constructive vote of No

Confidence. This again would require a Constitutional Amendment.
 National and state issues are different, and holding simultaneous elections is likely to affect
the judgment of voters.
 Regional parties which reflect local aspirations/issues may not have a level playing with
national parties. This will reverse the process of deepening democracy.
 Since elections will be held once every five years, it will reduce the government's
accountability to the people. Repeated elections keep legislators on their toes and increase
accountability.
 When an election in a State is postponed until the synchronised phase, President’s rule will
have to be imposed in the interim period in that state. This will be a blow to democracy and
federalism.
 It may not be a feasible proposal since it would place an enormous burden on the Election
Commission to ensure that there are enough government resources, officials, voting
machines, security troops, etc. who can be deployed simultaneously across the country at
once.
 The deployment of security forces and officials in 700,000 polling stations located in widely
varying geographic and climatic conditions all at the same time will be extremely difficult. It

15
is precisely these problems that now cause elections to be held in multiple phases and on
different dates even in the same state.
WAY FORWARD
 Independent administration of ECI instead of relying on Central and State Government staff
during elections. Elimination of ‘Chalta hai’ attitude by ECI with regards to corrupt electoral
practices.
 Non-Partisan role of media to ensure true transparency and democracy.
 Curbing corruption by providing funds to parties whose expenses are accounted for,
disqualification of candidates involved in corruption.
 Secure voter’s rights to allow citizens to make free choice and having secrecy of voters.
 Awareness among voters about the value of each vote and their significant role in governance
of the country.
 Capping permissible expenditure by parties to ensure elevated morals and less abuse of
money power.
 Bringing political parties under Right to Information Act (2005) to ensure transparency.
 Reforms in justice system to ensure effective tackling of Criminalisation issue of Politics.

16
REPRESENTATION OF PEOPLE’S ACT (RoPA)
WHY WAS RoPA, 1950 ENACTED?

• A. 171 of the Constitution lays down the maximum and minimum number of seats in a
Legislative Council. The actual number filled by the method established has been left to be
provided by law.
• Hence, this act of 1950 was brought in.
• The Act also sought to confer on the President, the powers to delimit, after consultation with
the ECI, the various constituencies.
• Limitations: It merely provided for allocation of seats and power to delimit. It did not contain
all provisions related to elections.
RoPA, 1951
This law was enacted to provide for the provisions that were lacking in the previous one. Broadly
speaking, it contains:
• Qualifications and disqualification for membership of Parliament and State Legislature
• Notification of general elections
• Administrative machinery for the conduct of elections

• Registration of political parties
• Conduct of elections
• Disputes regarding elections
• Corrupt practices and electoral officers
DISQUALIFICATION UNDER RoPA, 1951

Grounds of disqualification:
• Section 8- if a person has been charged with any criminal charges or has been convicted for
the same, earlier
• Section 123- offense of promoting enmity between different groups on grounds of religion,
race, place of birth, residence, language etc.
Loophole, showing inadequacy:

17
• Lily Thomas case- Any MP, MLA, MLC who is sentenced for a crime and granted at least two
years of imprisonment, loses membership of the House (Example- Election of CM of Sikkim)
• Lalu Prasad Yadav was not debarred until he was convicted.
REFORMS/ SUGGESTIONS
• The ECI suggested amending the RPA to include paid news and declare it a criminal offence.
• Revising the list of corrupt practices, and taking prompt actions accordingly fast-tracked by
means of setting up of special courts
• Amending IPC and the RP Act
• These would not let those who make the law break it.

18
BODIES
VARIOUS TYPES OF BODIES
Constitutional Statutory Regulatory Executive Judicial
Origin Constitution Act of Independent Non- Courts of

Parliament in nature, constitutional India
established non-statutory,
by legislative formed by
acts goat’s action
Objective Agencies Provide
responsible justice by
for exercising following the
autonomous laws of the
authority land
over some
area of
human
activity
Examples UPSC, ECI, CAG, SEBI, NHRC, RBI, IRDAI, NITI Aayog, SC, HC
NCSC, NCST, NCW, NCM PFRDA, BSI, NDC, CBI
NCBC FSSAI
Note: For Prelims specific preparation, add parameters of Mandate, Composition and Function for
Govt. body
SOME DERIVATIVES
 Constitutional Bodies, Statutory Bodies and Executive Bodies:
 Executive Bodies usually do not have blanket powers
 A regulatory body is one that issues the rules of the game in a sector
 All regulatory bodies are either constitutional or statutory bodies
 All regulatory bodies that are statutory bodies are usually passed as Financial Bills
 Members of regulatory bodies that are statutory bodies are usually removed by President in
the advice of the Council of Ministers

19
GENERAL ANALYSIS OF NON-CONSTITUTIONAL BODIES

CHALLENGES
When we are studying non-constitutional bodies, the most notable issues arise from their
appointments, functions and enforceability.
 Appointments by Government officials make it an extension of the Government and not an
autonomous agency.
 Functions assigned to such agencies become limiting at times. Example: NHRC cannot take up
issues that are more than a year old.
 These bodies are merely advisory in nature, but carrying out some of the most important
functions pertaining to an informed and good, qualitative life of an individual
 Suffer from being understaffed

 Lack of funds for infrastructural support & investigative purposes become a limiting factor
POSSIBLE SOLUTIONS
 Appointments to be made from a wider pool of candidates
 Political representatives should be strictly limited in their engagement as members of such

agencies so as to ensure independence.
 Better infrastructural support in terms of more offices and easier accessibility via ICT
 Investigate, review and examine all matters relating to these bodies, provided under the
Constitution and other laws
 Reports tabled in the Parliament should demand accountability
 Role clarity, no vacancies and proper earmarked funds could go a long way for their efforts
to, naturally and seamlessly be integrated with the government efforts to build a better,
prosperous nation.
CURRENT AFFAIRS CONTEXT

• NCW & COVID-19: The National Commission for Women (NCW) registered an increase of at
least 2.5 times in domestic violence complaints since the nationwide lockdown, according to
official data.

20
• NHRC & COVID-19: The National Human Rights Commission (NHRC) has asked the Centre to
issue an advisory to all States and Union Territories to implement
the ongoing lockdown without violating the human rights of the
public. Previously, the NHRC has also asked the Ministry of Home
Affairs to address the concerns of the mentally ill people on the
streets during the lockdown to check the spread of the novel
coronavirus.
To deny people their human rights is to challenge their very humanity. —

Nelson Mandela
CONSTITUTIONALIZATION OF COMMISSIONS
Process of Constitutionalization of a Commission
 When something is constitutionalised, it is made subject to the provisions of a country’s

constitution. Some commission can make a decision to approach the government for granting
it constitutional status. Usually, the demand, at large, is raised to constitutionalise a particular
commission, and subsequently, parliament passes a bill to provide constitutional status to the
commission. Article 368 provides for the power of parliament to amend the constitution.
 Parliament can amend by way of addition, variation or repeal any provision of the constitution
in accordance with the procedures. An amendment is initiated only by the introduction of a
bill for the purpose in either House of parliament, and when the bill is passed in each House
by a prescribed majority, subject to President’s assent, the constitution stands amended in
accordance with the terms of the bill.
 Article 338 was amended and a new Article 338A was inserted in the constitution through the
Constitution (89th Amendment) Act, 2003 to establish the National Commission for
Scheduled Tribes (NCST).

21
ARGUMENTS: FOR & AGAINST
Arguments against Arguments for Way forward

Constitutionalization Constitutionalization
• NCST, NCSC lack • Mandatory discussion of • Better implementation of

effectiveness as they are reports A. 14, 15, 15(3), 16, 39(a),
mere advisory bodies 39(b), 39(c) and 42
• Powers of civil courts
• Lack of implementation • Threats to vulnerable
of recommendations • Can directly interact with groups in the physical and
media without virtual world need to be
• Lacks the independence hinderances recognized
as appointments are
made by executives • Need for legislative and
dominantly social changes
• Raising awareness &

compliance with the law

22
REGULATORY POLICY
INTRODUCTION
 The global surge in independent regulatory agencies is a relatively recent phenomenon in
much of the developing world, including India. Originating in the United States (US), the
concept of independent regulation spread to the European Union (EU), and to the developing
countries in the 1990s
 Independent regulators are defined as “a body with its own powers and responsibilities given
under public law, which is organisationally separate from ministries and is neither directly
elected nor managed by elected officials.”
 While regulators have independence in performing their role, they still fall within the broad
definition of the executive branch of the state, and are accountable to the legislature.
 Given this, the question arises as to how the performance of regulators is monitored to
ensure that the public interest is properly served. To simultaneously ensure regulatory
independence and implementation of regulations consistent with government policies,
legislative oversight of regulators is necessary.
INDEPENDENT REGULATORS IN INDIA
 India’s economic liberalisation in the 1990s opened the economy allowing the private sector
to operate in areas which were earlier government monopolies.
 The shift in the approach necessitated the regulation of sectors where private operators were
permitted.
 Following the broad model adopted by several countries, India established independent
regulators to guarantee a level playing field for public and private agencies and to ensure their
independence from government departments.
 It established independent regulators through statutes in a variety of sectors such as

electricity, telecommunications, insurance, securities market, and oil and gas.
 Primary regulators are : RBI, TRAI, SEBI, CERC, IRDA, PNGRB, CCI, AERA, PFRDA
 Policymakers find significant advantages in governance through a regulator. It generally does
not share the “social” obligations of the government; nor is it expected to be affected by the
pressures of “interest” groups.
 It can provide a level playing field to all participants without fear or favour. It can build
expertise matching the complexities of the task and evolves processes to enforce authority
rapidly and proactively. It is better placed than the government to take unpleasant, but
necessary decisions

23
 But regulators need to be accountable for their actions too. Therefore, it is important to
understand the extent to which their activities are monitored by the Parliament and to what
extent they are accessible to the public and the regulated.
PARLIAMENTARY OVERSIGHT
 The challenge is to strike a balance between the advantages of governance through the
regulator and the apparent threat to democratic accountability. This can be achieved, to
some extent, through parliamentary oversight of regulators.
 In India, the Parliament scrutinises regulators by the following means:
(i) question hour
(ii) discussions in Parliament

(iii) parliamentary committees- Committee on Estimates & Public Accounts Committee.
An example through ad hoc committees is the scrutiny of the working of SEBI and RBI by the
JPC on the stock market scam
 Other means of legislative oversight, such as annual submission of reports by regulators to
Parliament, are sometimes provided in enactments or are laid down in the Rules of
Procedures of the Parliament.
REGULATION OF REGULATORS: RECOMMENDATIONS

 The Planning Commission in 2008 and the Second Administrative Reforms Commission (ARC)
in 2009 have made recommendations on strengthening parliamentary oversight of
regulators. Both of them recommended that regulators should be present before the
standing committees to explain their actions and be subjected to legislative questions. They
have also suggested that regulators submit annual reports periodically which should include
the progress made on achieving their objectives.
 These reports should be accessible to the public. The second ARC suggested that regulators
be scrutinised by sector-specific committees. It also advised that once in five years, a body of
reputed experts should be constituted to propose guidelines for the evaluation of the
regulator, which should be taken into account by the government while finalising the
principles on which the regulator should be held accountable.
INDEPENDENCE OF REGULATORY BODIES

• In 2013, the Report of the Financial Sector Legislative Reforms Commission delineated four
arguments in favour of having independent regulators:

24
(a) the regulator is able to set up a specialised workforce that has superior technical
knowledge;
(b) this is assisted by modified human resource and other processes, when compared
with the functioning of mainstream government departments;
(c) with such knowledge, and close observation of the industry, an independent regulator
is able to move rapidly in modifying regulations, thus giving malleability to laws; and
(d) the presence of independent regulators improves legal certainty by ensuring that the
regulatory approach does not fluctuate with political changes
 The report also pointed out that independence was a mixed blessing. When unelected officials
are given strong powers, this needs to be accompanied by appropriate accountability
mechanisms. However, its preferred mode of accountability was not parliamentary scrutiny
but judicial review, which came under severe criticism from Raghuram Rajan, the ex-RBI
Governor.
• Direct accountability of regulatory bodies to Parliament was recommended by the
Damodaran Committee in 2013
• In addition, a draft regulatory reform bill, approved by the government in 2013, which also
made similar recommendations, did not come up for consultation.
ACCOUNTABILITY OF REGULATORS
 The appointment process can make regulators more accountable. In the United Kingdom and
the US, the appointment of a regulator is subject to ratification by Parliament or an agency
appointed by Parliament. In contrast, the appointment of a regulator in India is at the
discretion of the executive.
 Second, currently, most regulators are financially self-sufficient, raising fees and charges for
services, and consequently come under less scrutiny by Parliament. Requiring the approval of
Parliament for budgets may be a way to exercise control on regulators.
 Third, effective scrutiny depends on the skill and resources available to the parliamentary
committees. Committees, as compared to the regulators they seek to oversee, may often be
under-resourced and thus fail to ensure accountability.
 Fourth, ad hoc scrutiny of the regulator was not adequate for effective oversight. There needs
to be parliamentary reporting requirements on a regular basis.
 Fifth, Parliament should address the question of coordination in its scrutiny of regulators.
Different regulators, while complying with their respective statutes, and executive orders,
may take regulatory decisions that are in conflict with the overarching policy or the objectives
of other regulators. Establishing a dedicated joint parliamentary committee to oversee
regulatory bodies would address this issue.

25
 Sixth, there needs to be a proper mechanism for appeals against regulatory orders. Each
regulator needs to come out with a charter and timelines for the provision of their services
(PRS Legislative Research 2012 and Select Committee on the Constitution 2004).
CONCLUSION
 Some regulators have achieved useful outcomes. However, the creation of independent
sectoral regulators in India has not been accompanied by critical reflection on their role, or
attention to the political, legal, and institutional contexts within which they operate.
 The existing mechanisms of legislative oversight over regulators’ performance need to be
strengthened considerably to be more effective. The centrality of legislative oversight comes
from the design of regulators—the functions of the executive, legislature and judiciary are
combined in the role of the regulator.

26
COMPTROLLER AND AUDITOR GENERAL OF INDIA (CAG)
CONSTITUTIONAL AND LEGAL PROVISIONS

 Article 148 of the Indian Constitution mandates the
appointment of Comptroller and Auditor General of
India by the President of India by warrant under his
hand and seal and shall only be removed from office
in like manner and on the like grounds as a Judge of
the Supreme Court
 The CAG 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
 Thus, the Parliament accordingly enacted the CAG’s (Duties, Powers and Conditions of
Service) Act, 1971 which specifies the CAG’s duties and powers pertaining to government
accounts, audit of receipts and expenditures of three tiers of the governments at the union,
states and urban and rural local bodies
 As per Article 151, the reports of the CAG relating to the accounts of the Union shall be
submitted to the President, who shall cause them to be laid before each House of Parliament.
 The reports of the CAG of India relating to the accounts of a State shall be submitted to the
Governor of the State, who shall cause them to be laid before the Legislature of the State
 Duties of CAG includes audit of public companies, autonomous bodies, regulatory bodies and
other public entities, where there is a specific legislative provision to make CAG audit
mandatory in the acts by which these bodies were created.
BASICS
 Appointed by the President of India by a warrant under his hand and seal
 Term- 6 years, or age of 65 years, whichever is earlier
 Resignation letter to President

 Removal- By the President, in the same manner as that of a SC judge
 Head of the Indian Audit and Accounts Department - created in 1753.
 Guardian of the public purse and controls the entire financial system of the country at both
the levels–the Centre and the state.
INDEPENDENCE

27
 Security of tenure
 Not eligible for further office
 Salary and service conditions decided by Parliament; cannot be altered to disadvantage after
appointment
 The above is charged from the Consolidated Fund of India
CLASSIFICATION OF AUDITS DONE BY CAG

 Compliance Audit: It is sometimes called transaction audit in which some selected
transactions of an entity for a particular financial year are chosen for audit scrutiny. It is seen
whether transactions are done as per rules and regulations, with proper sanctions and
whether it adheres to principles of financial propriety
 Financial Audit: Under this, audit reports prepared by various departments, statutory
corporations, government companies and other autonomous bodies and authorities are
checked for their veracity and truthfulness and whether financial statements are presented
with adequate disclosures
 Performance Audit: It seeks to establish at what cost and to what degree the policies,
programme and projects are working. In addition to all the financial audit checks, the
Performance Audit seeks to assess whether a programme, scheme or activity deploys sound
means to achieve its intended socio-economic objectives
 Propriety Audit: Look into the ‘wisdom, faithfulness and economy’ of government
expenditure and comment on the wasteful essay. This, however, is discretionary
 The Secret service expenditure is a limitation on the auditing powers of CAG
 It’s role in auditing of public corporations is limited.
ROLE OF COMPTROLLER AUDITOR GENERAL

• Uphold the Constitution of India and laws of Parliament in the field of financial administration
• In a way, agent of the Parliament as it conducts audit of expenditure on behalf of the
Parliament
• Britain vs. India- CAG of Britain has powers of both Comptroller as well as Auditor General,
unlike India. We only have the latter.
• In other words, in Britain, the executive can draw money from the public exchequer only with
the approval of the CAG

28
VARIOUS ISSUES
• Much of the government expenditure is kept out of CAG Audit by Governments: Now only
60% of the government expenditure comes under CAG. PPPs are also out of it’s ambit.
• Politicization of the office- former CAGs have been appointed as Chairman of Bank Board
Bureau and joined political parties to contest elections
• Issue with redacted pricing- in the Rafael case, citing security concerns.
• In India, Internal Audit is very weak and government departments see the external audit
mechanisms as fault finding exercise rather than constructive recommendations for their
working.
• Government agencies don’t give the information required by the CAG because of mistrust.
There is no provision regarding time frame

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4 Comparison of the Indian Constitutional scheme with that of other countries

5 Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers

6 Structure, Organization and Functioning of the Executive and the Judiciary—Ministries

8 Appointment to various Constitutional Posts, Powers, Functions and Responsibilities of

9 Statutory, Regulatory and various Quasi-judicial Bodies

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PREVIOUS YEARS’ QUESTIONS

Year Ques Context

2019 GS : Parliament’s Power to amend the Constitution is a Theory

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Polity Mains Syllabus 1: Topics

 Miscellaneous Topics in Handouts:

 Meaning of Words & Utility

 Art 368 Basic Structure

 Important Constitutional Amendments (Landmark and Recent)

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INTRODUCTION- WHAT IS ARTICLE 368?

HOW HAS IT EVOLVED OVER TIME?

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INSIGHTS & CONTEXT

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 Shift in the balance of democratic power it caused

 Unprecedented number of separate opinions delivered by the court

 The Basic Structure Doctrine is the pinnacle of Judicial Creativity

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 Doctrine of Basic Structure (Originally, a German Idea) would be a series of

▪ Minerva Mills v. Union of India (1980) :

ART 368’S CURRENT STATUS

IMPLICATIONS OF ART 368’S CURRENT STATUS

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KESAVANANDA AND EMERGENCY

CRITICAL VIEW- BASIC STRUCTURE

 SC was the unmatched authority when it came to Constitutional Matters

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ANALYSIS AND FUTURE OF BASIC STRUCTURE DOCTRINE

 Minimum 13 judges would be required to reconsider Kesavananda Bharti case

IS THE EVOLUTION OF ART 368 JUSTIFIED?

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▪ to move freely throughout the territory of India

RESTRICTIONS ON FREEDOM- REASONABLE OR UNREASONABLE

1. Sovereignty and integrity of the country. 5. Decency or morality.

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SIGNIFICANCE OF FREEDOM OF SPEECH AND EXPRESSION

FACETS OF FREE SPEECH

IMPORTANT JUDGEMENTS: LANDMARK

IMPORTANT JUDGEMENTS: CONTEMPORARY

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SEDITION VS. RIGHT TO FREE SPEECH AND EXPRESSION

 The colonial-era law of sedition has been widely criticized

 Even though the explanations to the section make it clear

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HATE SPEECH VS. RIGHT TO FREE SPEECH AND EXPRESSION

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FAKE NEWS/ DISINFORMATION

▪ Reasons for prevalence:

▪ Proliferation of technology, cheaper devices and affordable access to internet has

Proposed amendments in the Cinematograph Bill, 2021

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NEW IT RULES, 2021

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FEATURES OF THESE RULES

• Identification of the “first originator of the information” would be required in case of an