GS2 - POLITY AND CONSTITUTION

Portion of Syllabus Covered:

Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments,
Significant Provisions and Basic Structure.

Constitutionalism- Meaning and Relevance

● Context- India is a Constitutional Democracy. There is no King/Queen or Royal
Family on whose diktats our country is running. However, it is necessary that we have
a Constitution that can guide us as a nation in terms of ideology, purpose and vision.
This is the purpose of Constitutionalism.

Definition:
Constitutionalism is a doctrine which states that a government's authority is determined
by a body of laws or constitution

PYQ
‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential
facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial
decisions.

● Relevance of a constitution:
○ An identity card for what it means to be an Indian
○ Establishes a sense of belief, pride and belongingness in the people for the
country

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 ○ Common normative home for diverse population of our nation
○ Symbol and instrument of national identity
○ Grants legitimacy to the democratically elected Government (Authority=
Power+Legitimacy)
○ Authoritative role- Imposes legally enforceable restrictions on legislators
● Interpretations of Indian Constitution:
○ Liberal Interpretation- to interpret each word, each phrase and each text as
mentioned.
■ Eg: Article 21 mentions Procedure established by Law. Liberal
interpretation would not expand it to include due process of law.
○ Progressive interpretation
■ That allows the interpretation to remain dynamic, according to
changing and emergent circumstances of the country.
■ Instead of clause by clause interpretation, it would go for interpreting
all parts in sync with each other
■ Preamble, Constituent assembly debates and Supreme Court
judgements to be used to enhance constitutional interpretation
■ We have moved from Liberal Interpretation to Progressive interpretation
since our independence.
● Ex.: Berubari union Case (1951) ruled that Preamble is not a
part of Indian Constitution, but Kesavananda Bharati case (1973)
ruled that Preamble is a part of Indian Constitution
● Ex. In Maneka Gandhi Case, SC ruled that the phrase ‘Procedure
Established by Law’ in Article 21 expands to ‘Due Process of Law’
● Features of Constitutionalism:
1. Rule of Law- British Concept which states that all people of a nation state are
equally subject to ordinary law of the land, as adjudicated by ordinary law
courts

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 a. Absence of arbitrary and absolutist action
b. Exceptions to Rule of Law:
i. Administrative Tribunals- Article 323A
1. Here, an administrative body exercises judicial power
ii. Preventive Detention (Article 22)
1. People arrested under Preventive detention do not enjoy
equal powers under Article 19 and Article 22
iii. Affirmative action (Article 16(4))
1. Special provisions for backward classes of citizens
iv. Presidential and Governor immune from criminal implication-
Article 361 is an exception to Article 14
2. Indian Constitution is against absolutism
a. (Ex. We have No Confidence Motion to remove a government that
doesn’t enjoy popular support)
b. Exceptions of non-absolutism:
i. Article 34- Martial Law
ii. Parliamentary privileges- Article 105- (Still not codified)
iii. Contempt of Court- Article 129 and 215
3. Constitution is the consequence of India’s rights, not merely a source of rights
a. Nehru Report (1928) clearly mentioned various fundamental rights
for Indians
b. Indians have fought for this right since colonial times (Ilbert Bill
controversy where Europeans cried foul in reaction to equality between
Indian and British Judges.)

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 4. Separation of powers
a. Division of State powers into multiple branches, ensuring that no
branch interferes in the work of the other. It is a bulwark of modern
democracies (as it resolves the issue of concentration of power in the
King- seen till the colonial times)
b. Advantages:
i. Preserves and enhances democratic principles
ii. Ensures specialisation and expertise due to division of labour
iii. Institutionalisation of Checks and Balances (Montesquieu)
iv. Facilitates constructive criticism and vibrant culture of debates.
Eg: Question Hour, Zero Hour
c. Exceptions to Separation of Powers:
i. Parliamentary system of government- Ministers are a part of
both, Executive and Legislature
ii. Administrative Adjudication and Excess- Eg: Redrawing India’s
political map under Article 3
iii. Judicial activism and overreach- Eg: Vishakha Guidelines,
Putting Sedition on Hold
iv. Delegated Legislation- When the democratically elected
members of Parliament delegate their policymaking job to the
Government. Eg: During demonetisation. However, SC
remarked that delegated legislation as a concept emerged due
to practical necessities
v. Ordinance making Power (Article 123)
vi. Independent Regulatory Bodies with adjudicating powers. Eg:
Election Commission (not democratically elected), SEBI etc.
d. Separation of Powers within the executive
i. UPSC, CAG, ECI

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 e. Systems of Separation of Powers followed in various countries:
i. USA- Rigid separation of Powers
ii. UK- Loose Separation of Powers
iii. India- Middle Path
5. Temporary and dissolvable Government
a. Every 5 years , the popular leaders have to prove themselves.
6. Free Press and Freedom of Speech
a. Article 19 guarantees Freedom of Speech and Expression, along with
Free Press
7. Limited Government
a. There is no scope for absolutism in the Government

Constitutionalism- Negative vs positive

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 Framing of Indian Constitution

● Context- India had suffered a dictatorial regime in the face of Benevolent

despotism under the British. Though we had a so-called parliamentary
Government, it was nowhere representative. That is why we suffered havocs like The
Bubonic Plague(1896) , Jallianwala Bagh Massacre (1919), The Bengal Famine
(1944), etc.
○ This is the precise reason why we wanted to have a LIMITATION on how much
power accumulation can happen in the Government. The purpose was to
make the people independent, not the Government.

Why is UPSC interested in this topic?

It wants you to know how our Constitution was framed, as it was a result of sheer hard work
and dedication. It expects an aspirant to value the blood, sweat and tears of our freedom
fighters and Constitution Makers.

● India’s Constituent Assembly:

○ Framed according to Cabinet mission Plan (1946)
■ Partly elected, partly nominated
■ 389 members:
● 296 from British indian provinces (Indirectly elected)
● 93 from Princely States (Nominated)
● Proportional Representation
● Communal Representation- Muslims, Sikhs, General
● Separate electorate- community members electing people from
their own community

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 ○ Working of the Constitution
■ 1st meeting held on 9th December 1946
■ Muslim league did not participate
■ Temporary President- Dr. Sachidanand
Sinha
■ Post elections,
● President- Dr. Rajendra Prasad
● Vice President- HC Mookherjee
■ Sir BN Rau- Constitutional Advisor

■ Total tenure- 2 years, 11

months, 18 days
■ Last Session- 24 January
1950
○ Functions performed by
Constituent Assembly:
■ Acted as provisional
Parliament- Headed by GV Mavalankar (Speaker)

■ December 13, 1946- JL Nehru moved the historic

Objectives Resolutions
■ Elected the first President of India- Dr. Rajendra
Prasad (1950-52)

■ Adopted the National Flag (Tiranga)- 22 July

1947
■ Adopted the National Anthem Jana Gana
Mana- 24 January 1950

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 ■ Adopted the National Song- Vande Mataram- 24 January 1950

○ Criticism of Constituent Assembly:

■ Domination of the Congress:
● 69% of members were from Congress
● This was due to the Provincial legislative elections as well as
the partition
■ Not a sovereign body
● Formulated according to the Cabinet Mission plan, and
functioned with the permission of the British
○ Counter- Indian Independence Act 1947 gave a legal,
sovereign status to the constituent assembly explicitly.
○ Pt. Nehru described Indian Constituent Assembly on
14th Aug 1947 as ‘a sovereign body representing the
sovereign people of India’
■ Domination of the Hindus
● Winston Churchill- ‘The Constituent Assembly represents only
one major community in India’
○ Counter- Dr. Rajendra Prasad condemned this charge as
baseless and irrational. He mentioned that except the
Muslim league, all other communities were
well-represented.
○ After partition, minorities had 88/235 seats allotted to
the Provinces (37%)
■ Unrepresentative
● Members were not elected by Universal Adult Franchise
● Socialist and Communist leaders were very critical of the
Assembly for being unrepresentative.

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 ● Counter:
○ Not practical to hold elections- Dr. BR Ambedkar
○ It had representatives from various communities :
■ All-India Women Conference - Hansa Mehta
■ Landlords of India- Maharaja of Darbhanga
■ Hindu Mahasabha- Dr. Shyama Prasad
Mukherjee
■ Anglo Indians- Frank Anthony
■ Indian Chrishtians- HC Mukherjee
■ Sikhs and Muslims were also represented
○ India was not the only country to adopt indirect
elections
■ US Convention delegates were chosen without
any proper awareness
■ South African Constituent Assembly was chosen
by Provincial Legislatures
■ Dominated by men of law
● It is called a Lawyer’s Paradise. Legal luminaries led to a bulky
and difficult-worded document (elephantine size)
■ Un-Indian and Slavish/Borrowed Constitution
● Most of the provisions were inspired from various sources. So,
very less was left to be original. Even the ideals of a welfare
state like DPSPs were also inspired by Irish Constitution
● Counter- By the time India attained independence, many of the
world’s constitutions were already established.
○ Ideas of liberalism and progressive mindset do not
belong to one country
■ Un-Gandhian

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 ● Gandhi’s Nai Talim, Gram Swaraj and Village-Led society are
not visible in the Constitution. Even when they are, they are a
part of DPSPs(which are not enforceable)
● Counter: India was born as an independent, post-colonial
nation in a cold war era. So, we had to adopt a capitalistic and
forward-looking approach to have an independent,
non-aligned existence.
○ 73rd and 74th Constitutional Amendment Acts
constitutionalized the Panchayati Raj and Municipality
System
○ 97th Constitutional Amendment Act constitutionalized
cooperatives.

SALIENT FEATURES OF INDIAN CONSTITUTION

1. Written Constitution
○ 395 Articles, 12 schedules, 22 parts
○ Started with 395 Articles and 8 Schedules
○ USA, Canada and France also have a written constitution
i. USA- Originally only 7 Articles
ii. Australia- 128 Articles
iii. Canada- 147 Articles
○ Lengthiest written constitution in the world. Reasons:
i. Accumulate the experiences of our haunting colonial times times, so
that history doesn’t repeat itself
ii. Includes the constitution of states also
1. American Constitution has only federal provisions. Each state
has its own constitution

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 iii. Detailed Distribution of executive, legislative, judicial and financial
powers
iv. The Constitution includes provisions for social welfare . Eg: Reservation
for SCs and STs, DPSPs, official language etc.
v. Special provisions for some states are included in the Constitution
itself. Eg: Art. 371-Art. 371F, 5th and 6th Schedule
vi. Detailed provisions on Fundamental Rights, Duties, DPSPs etc.
○ Scholarly opinion on lengthy constitution:
i. Sir Ivor Jennings- Indian Constitution is largely a legacy of its past. He
had otherwise suggested not to put anything in the Constitution that can
be safely left out.
2. Popular Sovereignty
○ Preamble begins with the term ‘We, The People of India’, proving that Indian
masses are the source of authority
○ Article 326 constitutionalizes Universal Adult Franchise
3. Sovereign Democratic Republic
○ Preamble declares India as a sovereign, democratic republic
○ Dominion status of India has expired under Indian Independence Act 1947
○ Sovereign- Not under the influence of any external power
○ Democratic- Enjoys popular support
○ Republic- Head of the State is elected
4. Both Rigid and Flexible
○ Constitutional Amendment Process is both rigid and flexible (Article 368)
○ Rigid- Federal features can be amended only by ratification by half of the
states (And special majority in both houses of Parliament). Eg:
i. Manner of Presidential Election
ii. The Constitutional Amendment Process itself (Article 368)
iii. Provisions with respect of Supreme Court and High Court

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 ○ Flexible- Many provisions can be amended by a simple majority. Ex.
Citizenship
i. We have amended our Constitution over 100 times (105 to be exact)
5. Cabinet Government
○ Both at the levels of Centre and the States
○ Prime Minister is the head of the Cabinet, which includes the most important
and senior ministers involved in policy formulation
○ Executive being responsible to the legislature is ensured
6. Secularism
○ It implies the separation of State and Religion
○ India has adopted positive secularism, ie. Constitutionally Guaranteeing
freedom of religion to all religions (Article 25-28)
○ Further, State has no official religion
○ India has also abolished the concept of communal and separate electorate.
7. Federal System with a Unitary Bias- Indestructible Union of Destructible States
○ Federalism means the division of powers between two or more levels of
government. While separation of powers is a horizontal concept, federalism is
the distribution of power vertically
○ Federal features- necessary to imbibe confidence in the federal units:
i. Independent judiciary
ii. 7th Schedule
○ Unitary Bias- Necessary to maintain the integrity of India and prevent
secession
i. Emergency provisions- Part XVIII
ii. Constitutional position of Governor
iii. Single Citizenship

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 8. Balance between Judicial Review and Parliamentary Supremacy
○ Neither is Indian Parliament as strong as the UK Parliament, nor is our Judiciary
as strong as the American Judiciary
○ We have adopted a via-media to balance judicial and Parliamentary
Supremacy.
i. Judiciary can declare a law unconstitutional
1. Eg: Navtej Singh Johar judgement declaring parts of Section 377
of IPC unconstitutional
2. Judiciary declaring 99th Constitutional Amendment
Unconstitutional (National Judicial Appointments
Commission)
ii. However, there is no explicit mention of the term ‘judicial review’ in
the constitution. Article 13 restricts this power to the scope of Part III-
Fundamental Rights

Article 13. (1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the provisions of
this Part, shall, to the extent of such inconsistency, be void.

○ Commenting on this dilemma, Pt. JL Nehru had remarked “Ultimately, the fact
remains that Legislature must be supreme and must not be interfered with by the
Courts of Law in such measures as social reform”
9. Independent, Impartial Judiciary
○ Indian Supreme Court is one of the most powerful judicial institutions in the
world
○ However, DPSPs call for Separation of Executive and judiciary (Article 50)
○ So, judiciary is not empowered to frame new laws. And no amount of
legitimacy can empower the Judiciary to enact laws.

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 i. Ex. Vishakha Guidelines were succeeded by The Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
○ Still, judiciary enjoys a high degree of freedom:
i. Removal of Judges is possible only through a special majority, on
charges of misbehaviour
ii. High Court and Supreme Court Judges enjoy one of the highest pay
scale in Government services
10. Fundamental Rights
○ Indian Constitution, like the American Constitution, has mentioned
fundamental rights in detail.
○ In Maneka Gandhi case, SC remarked that both the executive and legislative
actions can be declared unconstitutional on the basis of violation of
Fundamental Rights (Due process of Law)
11. Fundamental Duties
○ Though not in the original Constitution, Fundamental Duties are an essential
characteristic of a socialist democracy
○ They were added by 42nd Constitutional Amendment, 1976 (Mini
Constitution) as Part IVA (Article 51A)
○ It was an attempt to balance the individual’s civil rights with his civic duties.
After all, rights and duties are co-terminus with each other.
12. Directive Principles of State Policy
○ Mentioned in the original Constitution, DPSPs are inspired from the Irish
Constitution. They embody the progressive socio-economic aspirations of
the Constitution makers
○ They are directives for the State to follow while policymaking.
○ They are also assurances to the people on what they can expect from the
policies of the State

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 ○ The ultimate goal is to maintain a social order in which “justice , social,
economic and political shall inform all institutions of public life”
13. Emergency Provisions
○ Due to the quasi-federal nature of Indian polity, there can be instances wherein
the Centre has to take control over the State matters as well. Emergency
provisions temporarily transform Indian polity from a federal to a unitary polity.
○ Eg: Automatic suspension of Article 19 under Article 358 in case of External
Emergency under Article 352

STATE REORGANIZATION

Why is UPSC interested in this topic?

There has been a constant dilemma as to how we can ensure State autonomy along with
National Integrity. UPSC wants the candidate to be mature enough to tackle such questions
without being too rigid for either side. In the end, an ideal Officer should be able to tackle
the questions of separatism in a solution-orineted manner.

PYQ:
Indian constitution exhibits centralising tendencies to maintain unity 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.

PYQ
To what extent is Article 370 of the Indian Constitution, bearing 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.

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 PYQ
Starting from inventing the ‘basic structure’ doctrine, the 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.

PYQ
Though the federal principle is dominant in our Constitution and that principle is one of its
basic features, 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.

○ Questions to be addressed:
■ How are new states formed?
■ Is it necessary to have new states for administrative convenience?
■ Benefits and disadvantages of creating new states
■ Historical evolution of India’s Political Map
○ How are states reorganized across the world- Basis:
■ Language
■ Ethnicity (Ex. Tribal Identity)
■ Developmental Deficit
■ Administrative convenience
○ India’s Stance on Separate Linguistic States in Pre-Independence Era
■ 1920 Nagpur Session of INC provided for linguistic Congress
Committees
■ Nehru Report (1928) supported Linguistic provinces
■ However, Nehru’s stance changed after witnessing the horrors of
Partition

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 ○ History of Linguistic States in India:
■ Orissa- 1st Linguistic state to be created (1936)
■ Andhra Pradesh- 1st Linguistic State to be created post
independence (1953)
● After the fast and subsequent death of Potti Sriramulu
● “Nehru was the maker of modern India, Sriramulu is the
mercator (Map-Maker)
■ Pre-1956 arrangement of States
● Part A- Erstwhile British Provinces
● Part B- Erstwhile Princely States
● Part C- Erstwhile chief commissioner’s province of British India
and some of the erstwhile princely states (Forereunners of UTs)
● Part D- Andaman and Nicobar Islands
■ SK Dhar Committee and JVP Committee advocated against Language
as a basis for state demarcation
■ Fazl Ali Committee(State Reorganisation Committee) accepted
Language as one of the basis of reorganization (though it rejected the
idea of one language one state). Financial and administrative viability
must also be considered
● Though Committee recommended 16 states, only 14 were
created (Telangana and Vidarbha were not created)

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LINGUISTIC STATES IN INDIA
○ Issues with Linguistic Reorganization of States
■ Creation of extremely small states is not economically viable. Eg:
Proposed Bodoland will have a population of only 31.5 Lakh (2011
Census)
● Duplication of institutions, capitals, assemblies, courts etc.-
wasting taxpayers’ money
■ Compromise with a strong National Identity- Encourage
sub-nationalism and threaten our unity and integrity
■ Further complication of centre-state relations
■ In a crisis situation, smaller states have shown much more
dependence on centre as compared to bigger states.
■ Problem of defining how small the state should be
■ Can amount to going back to pre-independence era and undoing the
arduous work done by Sardar Patel and VP Menon
■ Smaller size of the state is not a guarantee of its development
potential
● Eg: Highest and lowest spend on Health are both by small
states- Kerala and Jharkhand respectively
○ Arguments in favour of Linguistic States
■ Multi-Lingual states are difficult to administer
● Ex. So-called Kannada vs Hindi Debate flared up in 2022 due
to a celebrity’s instigation
■ Language is a more secular method of demarcation rather than caste
and religion
■ Easier for masses to participate in democratic process
■ Linguistic states would encourage the growth and development of
regional culture

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 ■ Greater participation of people in decision making
■ Some states have developed at a faster pace after separation
○ Process of political reorganization of States
■ Article 3- Parliament can form new states/increase or decrease the
area of existing states/alter the boundaries and name of existing states -
Alter the political map of the country
● State Legislature’s opinion in this regard has to be obtained by
the President, but is not binding. So, it is a non-federal feature
of Indian Constitution
● Article 3 does not contain provisions for international boundary
reorganization
■ However, power under Article 3 cannot be used arbitrarily, as that
would reduce the state to glorified municipalities. Yet, states’ consent
is not mandatory, as it would make the process of reorganization
particularly challenging.
■ Has it been misused?
● No
● In effect, most reorganizations have been done according to
the will of the people, strengthening India’s credentials as a
representative, participative democracy.
● Ex. Separate state of Tripura created in 1972 in line with its
historical identity of Twipra princely state
○ Government’s Response to demands for Linguistic States
■ Creation of Autonomous District Council (Ex. Darjeeling Autonomous
District Council)
■ Inclusion of languages in the 8th schedule
■ Setting up of development boards . Eg: Vidarbha, Saurashtra

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 ■ Creation of semi-autonomous states. Eg: Meghalaya Autonomous
region created within Assam in 1970
○ NEED FOR 2ND STATE REORGANIZATION COMMISSION
■ To lay scientific and administratively sound criteria for reorganization
of states
■ Needed after 30 years of LPG reforms
■ Regional imbalance has grown
■ Population in states has grown exponentially
○ VIABILITY OF DELHI AS A STATE
■ Delhi is the capital of India. By the 69th Constitutional Amendment
Act(1991):
● Delhi was redesignated as National Capital Territory of Delhi
(Special status)
● Delhi’s Legislative Assembly was created , with 70 Members of
Legislative Assemblies, and 7 Members of Parliament
● Except for Land, Police and Public Order, Delhi’s Legislative
Assembly has jurisdiction over all the State Subjects

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 ■ Delhi to be created into a state- Arguments in favour
● Promotion of
representative
democracy - Delhi’s
Legislative Assembly
would become more
accountable to
people
● It would increase the
speed of decision
making, as the
friction between LG
and Chief Minister
would reduce
●
■ Delhi to be created into a
state- Arguments against
● Constitution would
need to be amended
● National Capital Territory is full of historical and cultural
monuments, artefacts etc. , which cannot be restricted to a
certain State population. Capital belongs to the entire nation
● Issue of Financial viability
● NCR would include economic hubs located in other states like
Gurgaon (Haryana), Noida (Uttar Pradesh), leading to state
boundary issues
● Issue of Power and Water Supply .

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 Way Forward:
● Delhi can be reconstituted into two autonomous territories- One
a core region under NDMC which would be directly under
Centre’s control, and the rest of the portion under complete
statehood.
○ Such examples exist for other countries like:
■ Canberra founded in 1913 is located in the
Australian Capital Territory that is a
self-governing city-state with an elected assembly
and chief minister, but has no local government
■ In 1790, the standalone Washington District of
Columbia was announced to be the green field
capital of the United States of America, which
was not to be a part of the neighbouring states of
Maryland and Virginia

Conclusion:
Though Delhi is not a viable territory to be granted complete statehood, we should
progressively aim to grant more autonomy to Delhi by granting the control of Land, Police and
Public Order for the time being.

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 FUNDAMENTAL RIGHTS

PYQ (250 Marks- 2017):

Examine the scope of Fundamental Rights in the light of the latest judgement of the
Supreme Court on Right to Privacy

Why is UPSC interested in this topic ?

Fundamental Rights are the Soul of the Indian Constitution. It has taken a long time for us
to have these basic sets of Fundamental Rights. So, any change in them is of immense
relevance to us as a country, and UPSC wants you to know whether you understand this
impact or not.

● Constitutional Basis
○ Part III - Articles 12-35
○ How do we differentiate Fundamental Rights from other Rights?
■ Fundamental Rights are limited to those mentioned in Part III of the
Indian Constitution.
● Generations of Rights

History:
Rights as an entitlement were born by Magna Carta (1215) - British King’s Royal Charter or
Rights

○ 1st Generation Rights- Civil and Political Rights

■ Negative Rights, restricting State interference and absolutism
■ Eg: Right to life, liberty, property, speech and movement
■ Represented by Fundamental Rights

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 ■ Represented by Article 3 to Article 21 of the UN Declaration and the
International Covenant of Civil and Political Rights of 1966 which
came into force in 1976.
○ 2nd generation rights- Cultural, Social and Economic Rights
■ Emerged after the disastrous results of World War II
■ These are positive rights, empowering people through right to work,
the right to health care, the right to education, the right to social
security etc.
■ Represented by DPSPs in India
■ Key documents to understand the content of second-generation rights
are Article 22 to Article 27 of the UN Declaration and the International
Covenant of Economic, Social and Cultural Rights of 1966.
○ 3rd Generation Rights- Collective rights
■ Collective rights, representing the needs of disadvantaged sections of
the society.
■ Eg: Minority rights, Dalit Rights, Labour rights
■ Also known as solidarity rights, as they are not concerned with an
individual but with a community. Their underlying theme is
‘Fraternity’
■ For example- Feminist movement, Dalit resurgence, Anti-Aparthied
○ 4th Generation Rights- Rights of entire humankind as a whole
■ This is an emerging concept which tackles the rights of entire
humankind as a whole
■ It is defined in various ways by various people. Some of the
interpretations are:
● Internet-based digital rights- In the era when entire humanity
is dependent upon the internet, deprivation of internet access
hampers development.

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 ○ In line with this, Supreme Court has declared Internet
access as a Fundamental Right under Article 21A and
Article 21
● Exploration-based rights- As humanity goes beyond the Earth’s
surface to explore possibilities of a newer life, the benefits of
such exploration must be extracted by all sections of society, and
not just by the elite.
○ Example- Space exploration, Satellite technology,
cosmic discovery of life on other planets, etc.
● Comparing Fundamental Rights of Indian and USA
○ India- These rights encode both Individual and Groups empowerments.
These Restrictions and Empowerments are encoded in the Constitution itself.
○ USA- These RIghts include only individual restrictions and empowerments,
and they are not encoded in the constitution itself.
● Nature of Fundamental Rights (Use these points when asked a question about
features of Fundamental Rights)
○ Reach: Some rights operate vertically (Against the State. Ex- Article 19), while
some operate Horizontally (Against the State as well as other citizens (Ex-
Art. 23-Right against exploitation)
○ Nature: Most of the FRs are negative (Restricting the State. Ex- Article 25),
while some are positive (Encouraging the state to do more - Ex- Article 21A-
Right to Education)
○ FRs are justiciable- Can directly approach High Courts (Article 226) or
Supreme Court (Article 32) in case of their violation.
■ Anuradha Bhasin vs UoI (2019)- The right to freedom of speech and
expression under Article 19(1)(a), and the right to carry on any trade or
business under 19(1)(g), using the medium of internet is constitutionally

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 protected- In context of CrPC Section 144 being imposed in Jammu and
Kashmir

■ Arnab Goswami vs Union of India- Right to free journalism was upheld

under Article 19(1)(a) under Right to free press
○ Applicability: All FRs are available to Citizens, while some of them are also
available to Aliens (Except enemy aliens)
■ Ex- Article 14, 17, 20, 21, 22, 23, 24, 25, 26, 27 and 28 are available to
Friendly aliens too
■ Ex- Articles 15, 16, 18, 19, 29 and 30 are available only to Indian Citizens
○ FRs are not absolute but classified. They are subject to reasonable
restrictions. Eg: Article 19(2) imposes restrictions on right to freedom of
speech and expression
○ FRs can be suspended during emergency under Article 358 (Automatic
Suspension of Article 19 on imposition of external emergency) and Article 359
(Suspension of Fundamental Rights on President’s Order )
○ FRs can be modified in their application for certain services (Ex- Article 33
restricts the application of Fundamental Rights to members of Armed Forces)
○ Most FRs are self-executory, while some need laws to be implemented.
(Example Article 21A is implemented by Right to Education Act , and Article 17
is implemented by Protection of Civil Rights Act 1955.

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 ● Definition of State (As the Fundamental Rights are given against the State)

Article 12- Definition In this part, unless the context otherwise requires, the State
includes the Government and Parliament of India and the Government and the
Legislature of each of the States and all local or other authorities within the territory
of India or under the control of the Government of India

○ Ajay Hassia Case (1981)

■ A body is deemed to be a part of the State if it is:
● Substantially financed or controlled by the Government
● Created by Government order or statute
● A constitutional body
● A statutory body. Eg: RBI
● An Executive Body. Eg: NITI Aayog
■ If it is used as an instrumentality or agency of the State
■ If it performs sovereign functions of the Government
● Amendability of the Indian Constitution:

Quote:
‘This variety in the amending process is wise but rarely found’- KC Wheare

○ Important Facts:
■ Article 368 in Part XX of the constitution: Powers of Parliament to
amend the constitution
● By a Special Majority
● By a Special Majority and Ratification of Half the States
■ Borrowed from the South African constitution
THE JOURNEY OF AMENDABILITY OF THE INDIAN CONSTITUTION (With Respect to
Fundamental Rights)
○ Shankari Prasad v. Union of India (1951)

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 ■ The power of the Parliament to amend the Constitution under Article
368 also includes the power to amend Fundamental Rights.
■ The word ‘law’ in Article 13 includes only ordinary laws and not the
constitutional amendment acts (constituent laws)
● Therefore, the Parliament can abridge or take away any of the
Fundamental Rights by enacting a constitutional amendment
act and such a law will not be void under Article 13.
○ Golaknath v. State of Punjab (1967)
■ Parliament cannot take away or abridge any of the Fundamental
Rights
■ Fundamental Rights cannot be amended for the implementation of
the Directive Principles.
○ 24th Amendment Act declared that the Parliament has the power to abridge or
take away any of the Fundamental Rights by enacting Constitutional
Amendment Acts.
○ 25th Amendment Act inserted a new Article 31C which contained the following
two provisions:
○ No law which seeks to implement the socialistic Directive Principles
specified in Article 39 (b) and (c) shall be void on the ground of
contravention of the Fundamental Rights conferred by Article 14, Article
19, or Article 31.
○ No law containing a declaration for giving effect to such a policy shall
be questioned in any court on the ground that it does not give effect to
such a policy
○ Keshavananda Bharati judgment:
■ Parliament cannot amend those parts which are part of the ‘Basic
Structure’ of the constitution.
■ However, Parliament can amend Fundamental Rights.

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 ○ Indira Nehru Gandhi v. Raj Narain case (1975)
■ The doctrine of the basic structure of the constitution was
reaffirmed and applied by the Supreme Court in the Indira Nehru
Gandhi case (1975).
○ Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by
enacting the 42nd Amendment Act (1976).
■ This Act amended Article 368 and declared that there is no limitation
on the constituent power of Parliament and no amendment can be
questioned in any court on any ground including that of the
contravention of any of the Fundamental Rights.
○ Final Position - Final word on the issue of Amendability can be related to Basic
Structure defined in Kesavananda Bharti case. To name a few, Minerva Mills
case, S. P. Sampath Kumars case and L. Chandra Kumars case are well based
on the principle of Basic Structure and this situation is unlikely to change in the
near future. It is clear that all laws and constitutional amendments are now
subject to judicial review and laws that transgress the basic structure are
likely to be struck down by the Supreme Court. In essence Parliament's
power to amend the Constitution is not absolute and the Supreme Court is
the final arbiter over and interpreter of all constitutional amendments.

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 BASIC STRUCTURE DOCTRINE

Why is UPSC interested in this topic?

This doctrine has changed the face of Indian judiciary and transformed it into the most
powerful judiciaries in the world. Further, it has put an indirect restriction on the amending
power of the Parliament. So, the doctrine can be used by both- the judiciary and the
Parliament to infringe upon each others’ powers. However, it is like a blank cheque given to
the judiciary, which needs to be kept in check

PYQ:
What was held in the Coelho case? In this context, can you say that judicial review is of key
importance amongst the basic features of the Constitution?- 2016

PYQ:
Starting from inventing the ‘basic structure’ doctrine, the 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- 2014

PYQ:
“Parliament’s power to amend the constitution is 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 its
amending power? (15 marks)- 2019

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 ○ What is the Basic Structure Doctrine?
■ Basic structure doctrine includes certain inalienable,
non-compromisable elements of the Indian Constitution, which
cannot be taken away even by Constitutional Amendments.
■ It is the epitome of judicial innovation and activism, created in
Kesavananda Bharati Case (1973). It ends up maintaining the
character of the Indian Constitution.
■ However, neither the Judiciary nor the Parliament has defined what
constitutes the Basic Structure of Indian Constitution. It is not codified.
So, it is based on various judgements.

DEFINITION
The doctrine of basic structure is a judicial innovation to ensure that the power of amendment is
not misused by Parliament. It acts as a check and balance on the power of the executive as well
as the legislature. The doctrine ensures that the basic features of the Constitution of India
should not be altered to an extent that the identity of the Constitution is lost in the process.

The Basic structure though not exactly defined by the court, through its constituents provided
by the judiciary clarifies a scope defining the frame or the structure of the constitution. Some of
its constituents are Rule of law, Sovereignty, liberty and republic nature of Indian polity, judicial
review, Separation of power, secularism, and Republic nature of India etc.

● Evolution of Basic Structure Doctrine (Write these points only when it is a 15 marker.
Otherwise, use particular cases to substantiate your points.):
○ Shankari Prasad vs. Union of India case 1951- The case challenged the 1st
Constitutional amendment act on the ground that it violates the Part-III of
the constitution and therefore, should be considered invalid. The Supreme

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 Court held that the Parliament, under Article 368, has the power to amend
any part of the constitution including fundamental rights.
○ Golaknath vs State of Punjab case 1967- The Supreme Court held that the
Parliament has no power to amend Part III of the constitution as the
fundamental rights are transcendental and immutable. The powers with the
parliament under Article 368 are not absolute in nature.
○ 24th Constitutional amendment act 1971- Following the Golaknath
judgement, the parliament passed the 24th Constitutional amendment act of
1971 which gave the absolute power to the parliament to make any changes
in the constitution including the fundamental rights. The President was
obliged to give assent on all Constitutional amendment bills passed by the
Parliament.
○ Kesvananda Bharti vs State of Kerela case 1973- In this landmark judgement,
the Supreme Court upheld the validity of the 24th Constitution Amendment
Act by reviewing its decision in Golaknath case. The Supreme Court held that
the Parliament has power to amend any provision of the constitution, but
doing so, the basic structure of the constitution is to be maintained.
However, the court did not give any definition of the Basic structure. The
constituents of Basic structure have evolved through Judicial developments.

So, Kesavananda Bharati Case was the Birthing Case of Basic Structure Doctrine

○ What is included in Basic Structure? (No Need to remember the Scholars)

■ As per Sikri, C.J., the basic structure constitutes the following
elements:
● The supremacy of the Constitution
● Republican and Democratic forms of Government
● Secular character of the Constitution

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 ● Separation of Powers between the legislature, the Executive,
and the Judiciary
● Federal Character of the Constitution
■ As per Shelat and Grover, JJ., the following aspects are also part of
basic structure:
● The mandate to build a welfare state contained in the Directive
Principles of State Policy
● Maintenance of the unity and integrity of India
● The sovereignty of the country
■ Hegde and Mukherjee, JJ.,
● The sovereignty of India
● The democratic character of the polity
● The unity of the country
● Essential features of individual freedom
● The mandate to build a welfare state
■ Jaganmohan Redd, J., believed that it was the Preamble that laid
down the basic features of the Constitution:
● A sovereign democratic republic
● The provision of social, economic, and political justice
● Liberty of thought, expression, belief, faith, and worship
● Equality of status and opportunity
○ Application of Basic Structure Doctrine
■ The “basic structure” theory was applied for the first time after its
introduction in the 1975 case Indira Gandhi v. Raj Narain.
● Context of the Case- The Allahabad High Court had ruled
against Indira Gandhi and convicted her of electoral
malpractices in the Lok Sabha election, after a challenge by rival
Raj Narain.

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 ● Emergency was declared and Parliament passed the 39th
Amendment prohibiting any challenge to the election of the
President, Vice-President, Speaker and Prime Minister,
irrespective of electoral malpractice.
● The five-judge Bench, categorised the independent conduct of
elections as “basic structure” and ruled that Parliament could
not amend the Constitution if alterations affected basic issues
like fundamental rights.
■ So, Basic Structure Doctrine has helped us save ourselves from
absolutism.

○ Critical Analysis of Basic Structure:

■ Arguments in favour of Basic Structure Doctrine:

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 ● Acts as a limitation on constituent power of Parliament,
saving Indian democracy from absolutism
● Retains the basic tenets of our constitution
● Delineates a true separation of power where Judiciary is
independent of other two organs.
● Provides certain inalienable, basic Rights to Citizens which no
organ of State can overrule.
● Dynamism- It is open to change and evolves with time.
● It upholds Constitutionalism in cases where the executive
through brute majority seeks to change the character of the
Constitution and democracy.
● Other countries have also adopted similar structures:
○ 1989- Bangladesh Supreme Court applied Basic
Structure Doctrine to their Constitution
○ Article 79(3)- Basic Law of Germany
○ Ugandan Supreme Court- 2019- Basic structure doctrine
and Indian Precedent mentioned
● Philosophy of Constitution- The basic structure doctrine helps
retain the basic philosophy of the constitution around which
the Constitution of India was framed by the founding fathers.
■ Arguments against:
● Unconstitutional- Since neither an amendment nor a law has
been passed to define basic structure, it is considered
Unconstitutional. India’s Vice President Shri Jagdeep Dhankar
recently remarked that courts cannot dilute “parliamentary
sovereignty”, bringing the focus back to the “basic structure”
doctrine of the Constitution.

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 ● Undemocratic- Neither the people were consulted before
constituting this structure, nor has it been devised by people’s
representatives. It is an illegitimate infringement of majority
democracy
● It is an example of Judicial Overreach, as Judiciary has imposed
its philosophical worldview on the people of India. Ex- Declaring
National judicial appointments Commission (99th CAA)
● No consensus among judiciary - It was passed with a narrow
margin of 7:6 in Kesavananda Bharati Case

Conclusion
The basic structure doctrine thus provides a strong foundation to Indian Constitutional
democracy, making it more consistent with the changing times yet protecting and
strengthening the core principles around which the Constitution is based. However, it needs to
be codified to align the vision with India’s democratic credentials.

■ Amendability of the Constitution- In the context of Basic Structure

Doctrine

Context:
India has had executive heads who have tried to engage in Constitutional Overreach. The
basic structure has tried to limit the amending power of executive. This topic will remain
relevant for UPSC for perpetuity, as the Indian Constitution will keep changing its character.
So, aspirants must be very clear with the relation between amendability, 9th Schedule, IR
Coelho Case and Basic Structure.

● 9th Schedule- Added by the 1st Constitutional Amendment, making the laws within
the schedule immune from Judicial Review

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 ○ Basic issue before the Court was whether it was permissible for the
Parliament to insert laws into the Ninth Schedule post-Kesavananda Bharati
case in order to make them immune from judicial review on the basis of the
basic structure doctrine.
○ The 9th Schedule was inserted to save agrarian reforms from judicial review.
However, with the passage of time, more laws were added to it which were
nowhere related to agrarian reforms (Executive excess)
● IR COELHO CASE (2007)
○ The Court unanimously held that it was not permissible for the legislature to
escape the scrutiny of the Basic Structure doctrine by finding manifestly
cunning ways to get around it.
○ The basic structure doctrine is the very essence of the Constitution, and any
acts, rules and regulations that violate its essence cannot be allowed to
continue in this brazen manner.
○ If any laws in the Ninth Schedule were inconsistent with Part III, they are
liable to be struck down by the Court.
● Criticism of IR Coelho Judgement:
○ Such judgements are chipping away at the power of the legislature to enact
laws in order to further their legitimate policies.
○ Court keeps on adding new principles as a part of the basic structure, thus
hampering not only the legislature but also paving the way for new litigation
○ Judiciary has neither given any exhaustive definition of the basic structure nor
has it given an exhaustive list (No clarity on what Basic Structure is)
● Conclusion:
○ While the Judiciary is not empowered to make laws, it is responsible for
creating a fair and just order under Article 142 (Power to do complete justice).
So, to provide legitimacy to the Concept of Basic Structure, Parliament must

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 enact a legislation defining the constituents of Basic structure and what it
entails for the common citizen of India
○ The I R Coelho case has further strengthened the hold of the basic structure
doctrine in the constitutional setup of the country by emphasising that all
amendments, depending on its impact and consequences if violative of the
doctrine of the basic structure, need to be struck down

Fundamental Rights in Detail

Context:
Each Fundamental Right has many sub components, and many of them are in news for
various reasons. So, it is important to understand the practical implication of Fundamental
Rights

○ Right to Equality (Article 14-18)

■ Equality Before the Law (Article 14)
● It is based on every section of society being equally subjected
to the same laws of the land. This principle is based on the
following two aspects:
○ The class identified should be a homogenous unit
○ Classification exercise must have a reasonable nexus of
object- about why are they being classified
■ Exceptions to Equality Before the Law:
● Article 361- Constitutional Immunity of President and
Governor
● Diplomatic Immunity
● Article 105- Parliamentary Privileges

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 Analysis- The Security forces will not be punished for violating Article 21 due to their official
immunity.

○ Article 15- The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them

■ Exceptions to Article 15
● Article 15(3)- special provision for women and children
● Article 15(4)- advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes
■ Article 16- Equality of opportunity in matters of public employment
● (1) There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office
under the State
● (2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible
for, or discriminated against in respect or, any employment or
office under the State

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 ● Exceptions to Article 16 (Use these exceptions to justify
reservations and other affirmative action):
○ Article 16(3)- Parliament can prescribe Residence as a
condition
○ Article 16(4)- In favour of an underrepresented ,
backward class of citizens
○ Article 16(5)- Working of religious denominations- the
head of these denominations can be prescribed
religion as a qualifying factor

AFFIRMATIVE ACTION (Debate within Article 15 and 16)

PYQ:
Whether the National Commission for Scheduled Castes (NCSC) can enforce the
implementation of constitutional reservation for the Scheduled Castes in the religious
minority institutions? Examine.

● What is Affirmative Action?

○ It is a set of anti-discriminatory practices intended to uplift the disadvantaged
and exploited sections of the society, which would otherwise be under
represented
○ Basic idea is to change the social composition of the elite sections of the
society, and make distribution of resources more equitable.

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 ■ There can be 2 approaches to upliftment of backward classes:
● Evangelical- Moral upliftment and change in the social
perception. This is a much slower approach, and a much more
difficult one too.
● Secular Approach- Dr. B.R. Ambedkar advocated for this
approach, as he believed that Hinduism could not be reformed.
So, he aimed at Constitutional obligations and restrictions on
any kind of irrational and illegitimate state-sponsored
discrimination.
■ Steps taken for Affirmative action:
● 1902- Shahu Maharaj of Kolhapur took the first step to give
representation to backward classes in public places

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 ● 1931- J.H. Hutton conducted India’s First Caste Census, and
identified temple entry restrictions and the concept of purity and
pollution to pull back the backward classes
● 1936- 1st List of Scheduled Castes was published
● 1950- Indian Constitution was enforced, doing away with the
concept of separate electorates, but retaining reservation as a
Constitutional Method of Affirmative Action
● 1962- In Balaji Case, Supreme Court said that quota can’t be
over 50%
● Mandal Commission, 1979:
○ Suggested 27% reservation for OBCs (52% population)
● Indira Sawhney judgement- 50% limit prescribed for overall
reservation.
○ Arguments in Favour of Affirmative Action:
■ Historical Injustice
● USA- Against black Population
● Australia- Against Aboriginal Population
■ Caste system is not a system of labour, but the division of
labourer
■ Normal process of development does not automatically close
the gap between the marginalized and dominant groups
■ Though in the era of economic determinism, it is said that caste
has ceased to be of significance, this is valid only for the upper
castes. The lower castes are still reminded of their caste
identity on a daily basis
■ Class and Caste coincide. Dalits in rural areas are most
deprived, and are at the risk of being landless

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 ■ Untouchability is still there, but has acquired different forms.
Ex.:
● Honour killing for Pratiloma marriage
● Dalits not given houses on rent

● Labour market differentiation- Outcomes are different for

Dalits and Non-Dalits

● Quota should not be seen as benefiting a certain section of

society, but uplifting the society as a whole.

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 ● It empowers the lowest sections of society and strengthens the
integrity of the nation.
■ Arguments against the Quota System:
● Compensatory Discrimination- It merely replaces one
discrimination with another
● It makes the caste system perpetual, as it is politically
impossible to get rid of caste-based discrimination
● Deepens caste-consciousness - The debate of a ‘General, Male,
Engineer’ being the most disadvantaged group in the country
today
● Compromises merit- Difference in a few marks may be the
result of a huge difference in effort on the part of non-reserved
candidate.
● Benefits of reservation cornered by the affluent classes of
depressed class. Ex- Justice Rohini panel on
sub-categorization of OBCs mentioned that Less than 1% of
OBCs corner 50% of reservation
○ This was the reason for introducing Creamy layer criteria
within OBCs

● Mismatch Hypothesis

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 ○ Students from depressed classes have high dropout
rates, showing that reservation is not sufficient. Remedial
teaching, supplementary classes etc. have to be held.

■ Way Forward:
● Class-Based Quota- Though recommended by various bodies, it
does not suit well with our constitutional scheme because:
○ Article 15(1) and 16(1)- Call for removing horizontal
discrimination
○ Article 15(2) and 16(2)- Call for removing vertical
discrimination
○ Class based discrimination assumes that the poor Dalit
and the poor Brahmin are in the same situation, which
is not true.
○ As a result of caste-based discrimination, the richer
families might end up manipulating the narrative.
○ However, EWS Quota introduced by 103rd
Constitutional Amendment Act has sustained the
scrutiny of Supreme Court

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 ■ QUOTA-PLUS POLICY
● It states that in the current scheme of things, only the urban
backward classes are benefitting, while the rural ones
remain at periphery
● With the Economically Weaker Section Reservation (103rd CAA),
the 50% limit on Quotas has already been breached.
● Now, we need additional policies along with the quota to
actually gain results. After all, even Dr. B.R. Ambedkar did not
want reservation to be a permanent feature of Indian polity.
● The following solutions can be implemented:
○ Bring in the Private sector:
■ Strengthen the diversity index - the private
sector should be hiring diverse sections of the
population- Eg: On the basis of Gender,
Community, Caste
● Indira Sawhney Case(1992)-
○ Quota can’t be beyond 50%
○ Creamy layer criteria has to be introduced
■ It was finally introduced as Rs. 8 Lakh /annum
income by Ramnandan Committee
○ Further, Identification of Backward class shall be
subject to judicial review
○ Reservation in promotion was declared to be
unconstitutional
○ The goal should be equalisation of opportunity, not
equalisation of outcome.

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 ○ Carry forward rule in case of reserved seats can continue
only for 3 years, after which they will lapse back to
general seats
● Nagaraj Case, 2007
○ Backwardness of OBCs must be demonstrated
○ Article 16(4) should be read with Article 334

Article 16(4) (4) Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favor of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under the State

Article 334- Reservation of seats and special representation to cease after forty years

○ Article 17- Right against untouchability

Definition: Untouchability is a perverted form of Indian Caste System, wherein certain

sections of the society are discriminated against solely on the basis of their birth, and being
born in the so-called ‘lower castes’

■ Protection of Civil Rights Act, 1955

● Offences under the Act:
○ Insulting a member of Dalit Community
○ Preaching Untouchability
○ Justifying untouchability on historical, philosophical
grounds

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 ○ Denying admission to any person at public places on
grounds of caste
● Punishment:
○ Minimum 1 month punishment
○ Debarring the person from contesting elections during
punishment time and 6 years
● The Court shall operate on the presumption of guilt
● Offence is cognisable and non-compoundable
■ A glimpse of Untouchability in India

How to use this section :

Do not memorize each and every piece of data. Use some data points to substantiate your
arguments for/against reservation. Multiple data is given to give you choices according to
your preference.

● Human Rights Watch

○ India has over 160 million ‘untouchables’
○ 90% of Indian poor are Dalits
○ 95% of Illiterates in India are Dalits
● National Crime Records Bureau
○ 1,30,000 Anti Dalit Crimes registered in india between
2018 to 2020
■ Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989
● Special courts have to complete the proceedings within 2
months
● 17 new Types of atrocities introduced:
○ Garlanding with Chappals

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 ○ Insulting Dalits
○ Any non SC/ST officer who neglects his duty may be
sentenced to a jail sentence of 6 months to 1 year
○ Abusing using caste name
○ Denying access to forest resources or irrigation
facilities
○ Dispose or carry human carcasses
○ Perpetrating witchcraft atrocities
○ Imposing social or economic boycott
○ Preventing Dalit and Adivasi candidates filing of
nomination to contest elections
○ Hurting the modesty of Dalit/Adivasi woman by
removing her garments;
○ Forcing to leave house, village or residence;
○ defiling objects sacred to SCs and STs;
○ touching a woman or uses words, acts or gestures of a
sexual nature against women.
● Addition of presumption to the offences – If the accused was
acquainted with the victim or his family, the court will presume
that the accused was aware of the caste or tribal identity of the
victim unless proved otherwise.
■ Why are the current laws ineffective?
● Attitude of the Police
● Problem of the Judiciary
○ Conviction rate is very low in these cases- 7%
● Many Dalits are not aware about their rights and cannot fight
long legal battles
● False cases being filed

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 ■ Supreme Court Judgement
● Earlier, SC had ruled that no preliminary enquiry is needed to
register a case under SC/ST act. Arrests can be made on the
presumption of guilt.
● However, in 2019, SC revoked its earlier order and said that
Preliminary enquiry is a must before registering the case.
This has led to better checks on false cases filed with vicious
motives

○ Article 18- Abolition of Titles

■ Except Military or academic titles, no titles can be conferred by the
State
■ This is to remove the exclusionary titles which were violative of
Indian democracy. Eg: Maharaja, Sir, Nawab etc.
■ Balaji Raghavan vs UoI:
● Supreme Court upheld the validity of civilian honors like
“Bharat Ratna”, “Padma Vibhushan”, “Padma Shri”, etc.
(introduced in 1954)
● SC also criticized the government for not exercising restraint
in awarding these.
■ Reforms suggested:
● Conferring titles posthumously should be stopped

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 ● Government discretion in this aspect must be curtailed. A
Board should be appointed to give suggestions about
appointment and giving titles
● Those who abuse these titles as decorations should be
deprived of these titles
○ Article 19- Protection of certain rights regarding freedom of speech etc

■ (1) All citizens shall have the right

■ (a) to freedom of speech and expression;
■ (b) to assemble peaceably and without arms;
■ (c) to form associations or unions;
■ (d) to move freely throughout the territory of India;
■ (e) to reside and settle in any part of the territory of India; and
■ (f) omitted
■ (g) to practise any profession, or to carry on any occupation, trade or
business

DEBATES RELATED TO ARTICLE 19

● Contempt of Court:
○ Constitutional Provisions:
■ Article 129: It grants the Supreme Court the power to punish for
contempt of itself.
■ Article 142(2): It enables the Supreme Court to investigate and
punish any person for its contempt.
■ Article 215: It grants every High Court the power to punish for
contempt of itself.
○ Contempt of Court Act, 1971

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 ■ Meaning of Contempt- any behavior or wrongdoing that conflicts with
or challenges the authority, integrity, and superiority of the court.
■ It divides the contempt of court into 2 parts- Civil and Criminal

Civil Contempt Criminal Contempt

'Civil contempt' means willful disobedience Publication of any matter or doing of any act
to any judgment, decree, direction, order, which:
writ, or other processes of the court or Scandalous Or Lowers The Authority Of
willful breach of an undertaking given to the The Court.
court. Prejudice Or Interfere With The Due
Course Of Any Judicial Proceedings.
Interfere Or Obstructs The Administration
Of Justice.

○ Issues in Criminal Contempt:

■ The issue of Contempt of Court vs Contempt of Judge. Eg: SC finding
Prashant Bhushan guilty of serious contempt for tweeting about
Chief Justice of India
■ Vaguely defined- No clarity about what constitutes scandalous
■ Violates the principle of Natural Justice- The complainant is a judge
her/himself, hearing own case
■ Unchecked power on courts breach the thin line between maintaining
judicial independence and transgressing to judicial excess

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 ■ Goes against the democratic principle of people’s supremacy and
sovereignty through their elected representatives
○ Malgaonkar Case, 1978- Guidelines regarding contempt of court (Mulgaonkar
Principles)
■ Economic use of contempt power is desirable
■ There should be harmonisation between free criticism and judicial
independence
■ Media should be given the free play within reasonable limits even if
the focus of critical attention is the courts
■ Judges should not be hypersensitive
■ Judges should be able to take in scrutiny

Additional Information:

Mulgaonkar was the then editor of The Indian Express.

The case was related to an article by AG Noorani in
The Indian Express criticising certain judicial decisions
during the Emergency period, especially the Habeas
Corpus case. This article had displeased the then CJI
M.H. Beg. Finally, the verdict had a 2:1 majority,
leading to the upliftment of freedom of speech, and
also creating the Mulgaonkar Principles

○ Contempt of Court (Amendment) Act, 2006

■ Act was amended to include the defence of truth under Section 13 of
the original legislation.

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 ■ Section 13 that already served to restrict the powers of the court in that
they were not to hold anyone in contempt unless it would
substantially interfere with the due process of justice, the
amendment further states that the court must permit ‘justification by
truth as a valid defence if it is satisfied that it is in public interest and the
request for invoking the said defence is bona fide.’

● FREEDOM OF CINEMA

What do you understand by the concept “freedom of speech 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

○ Hicklin Test
■ The Hicklin Test permitted a conviction for purveyors of obscenity if
a publication had a mere tendency to arouse lustful thoughts in the
minds of the people. Isolated passages could be used to determine
whether there was sufficient evidence to infer a defendant’s intention to
corrupt public morals
■ This meaning can be interpreted in a narrow way- Any and every piece
of expression which is even slightly corrupting or hampering the
values and morality of our society is to be taken down
○ Miller Test
■ A broader interpretation of freedom of speech would be the Miller Test
■ Miller Test is the primary legal test for determining whether
expression constitutes obscenity. It has a 3-pronged test:
● Whether an average person applying contemporary
community standard finds it obscene
● It depicts sexual conduct in a patently obscene manner

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 ● It lacks serious, scientific, literary or artistic value
○ Cinematograph Act 1952
■ Central Board of film Certification set up under this act as a Statutory
Body
■ Issues in the working of CBFC
● Poor Finances
● Corruption
● Biases of the individual members leading to setting up
unreasonable moral and social standards
● Political interferences
● Even when CBFC certifies as a film , state governments end up
banning the films altogether. To lift the ban, court proceedings
need to be undertaken, making the process arduous
● Public order is used as a figleaf to justify bans on creative
freedom.
○ KM Kacharappa, 2000
■ Government responsibility is to only provide a broad policy framework,
and nothing more. After that, there should be no interference in
day-to-day functioning.
○ Justice Mudgal Committee , 2013 was appointed to review this matter
■ They recommend that new cinematograph bill to replace previous act
1952
■ There should be proper norms for selection of right person to CBFC
■ Objections with respect to films should first be presented before the
FCAT ( Film Certification Appellate Tribunal)
○ Shyam Benegal Committee (2016)- Recommendations:
■ Shift from Censorship to certification (by increased categorisation
into suitable age-groups)

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 ■ The categorisation of films should be more specific and apart from U
category, the UA Category can be broken up into further sub-categories
– UA12+ and UA15+. The A category should also be sub-divided into A
and AC (Adult with Caution) categories
■ Resorting to censorship in the extreme case with proper justification.

● PUBLICATION OF BOOKS
● Laws with respect to publication of Literature
○ CrPC Section 95 - Power to declare certain publications forfeited and to
issue search-warrants for the same
■ Where any newspaper, book or document relates to punishable offences
under the following acts, State Government will be empowered to
forfeit all copies of such publication, and ban further copies of it:
● IPC section 124A - Sedition
● IPC section 153A - Offense committed in places of worship
● IPC section 153B - Imprisonment of 5 years for offences in
religious places
● IPC section 292 - Any piece of literature which is obscene and
shows excessive interest in sexual matters
● IPC section 293 - Sale, etc., of obscene objects to young
persons under 20 years
● IPC section 295A - outraging the religious feelings of any class
of citizens of India

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 SEDITION- SECTION 124A

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 Context:
Recent NCRB report data suggested the indiscriminate application of sedition law, and poor
conviction rate with regard to the same. Further, SC has put a stay on the application of
sedition law, till the time the central government completes the promised exercise to
reconsider and re-examine the provision.

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© EdSarrthi 1
 Sedition- Meaning and Background

Definition- Sedition is a conduct or speech inciting people to rebel against the authority
of a state or monarch

● Historical Background
○ Sedition laws were enacted in 17th century England when lawmakers
believed that only good opinions of the government should survive,
as bad opinions were detrimental to the government and monarchy.
○ The law was originally drafted in 1837 by Thomas Macaulay, the
British historian-politician, but was inexplicably omitted when the
Indian Penal Code (IPC) was enacted in 1860.
○ Section 124A was inserted in 1870 by an amendment introduced by
Sir James Stephen when it felt the need for a specific section to deal
with the offence.
○ Today, Sedition is a crime under Section 124A of the Indian Penal
Code (IPC).
○ Stalwarts of the freedom movement such as Lokmanya Tilak,
Mahatma Gandhi, Jawaharlal Nehru, Bhagat Singh, etc., were
convicted for their “seditious” speeches, writings and activities under
British rule.
● Section 124a defines the act of sedition as an act to bring or attempt to bring in
hatred or contempt , exciting or attempting to excite disaffection towards the
government established by law.
● As per Section 124a, Sedition is a non-bailable offence, punishable with
imprisonment from three years up to life, along with a fine.

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 ● ·The person charged is also barred from a government job and their passport is
seized.

Section 124A of IPC

Whoever by words, either spoken or written, or by signs, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to
excite disaffection towards, the Government established by law in India, a shall be punished
with imprisonment for life, to which fine may be added, or with imprisonment which may
extend to three years, to which fine may be added, or with fine.

Offense- Imprisonment for Life + Fine or 3 Years + Fine or Fine

Cognizable, Non-Bailable, Non-Compoundable

● After the enactment of the constitution, this law was retained as a part of the
Indian Penal Code.

NCRB Data on sedition:

● Data on Sedition is given under headline ‘Offences against the State’

● Between 2014-2021 , a total of 475 cases have been registered under Sec
124a.
● 6 States I.e. Haryana(42), Jharkhand(40), Karnataka(38), Andhra
Pradesh(32) and Jammu and Kashmir(29), account for more than half of
total recorded cases.

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Issues related to Sedition law in India-
1. It is a Colonial era law seeking to arrest criticism and impose allegiance to the
British empire. Mahatma Gandhi, Lokmanya Tilak were arrested for their
‘Seditious’ speeches, writings etc.
2. Ambiguous definition of sedition- The definition including ‘exciting or
attempting to exciting disaffection’ or ‘attempt to bring hatred or contempt’ ,
leads to a vague and wide definition making space for misuse.
3. Restricts freedom of speech- Imposing a constraint on the legitimate exercise of
Art. 19 i.e. Freedom of speech and expression.
4. Enforcers silence- Sedition imposes the enforcers silence where due to fear of
punishment, one avoids speaking up leading to a chilling effect on free speech.
5. Low conviction rate- In 2019, out of the 93 cases of sedition, only 2 were
convicted. This highlights a low conviction rate that explains the inefficiency of the
section, and instances of misuse.
6. International practices- British Government abolished sedition in 2010, so has
other countries such as Canada, Australia etc.
7. Critique by leaders- JL Nehru described sedition as ‘obnoxious’ and Gandhi
called it as “The prince among the sections of IPC to suppress liberty of citizens.”
8. Constituent assembly’s opposition – While framing of the constitution, the
assembly opposed inclusion of sedition as a restriction on freedom of speech
and expression.
9. Promotes absolutism by curbing dissent against the Government.
10. Romesh Thapar v State of Madras- Justice Patanjali Shastri cited the Constituent
Assembly’s deliberate omission of the word sedition from the Constitution for
the liberal reading of the law.

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 Need of sedition law

1. Maintaining unity and integrity of the Nation by promoting a spirit of fraternity

(Article 51A- Fundamental Duty)
2. Combating anti-national, secessionist and anti-social elements.
3. Reasonable restrictions to free speech under Art 19(2), describes limit to free
speech and expression.
4. Stability of the state by removing instances of incitement of violence, or a violent
overthrow.
5. Judicial pronouncements such as KedarNath judgement of 1962 where hon’ble
Supreme Court upheld the constitutionality of Section 124a of IPC.

Centre’s Stand:
○ The Central Government on May 9, 2022, had announced its decision of
reviewing the sedition law, however, it argued that while it reviews the law, it
should not be paused.
○ The Central Government also suggested that for now, a police officer of the
level of Superintendent or above could decide whether a Sedition charge
should be filed.
○ The Government further added that there may be terrorism charges too in
the cases filed under Sedition law. These pending cases are not before the
government or police but are before the court.
○ AG Noorani(Lawyer and Political Commentator) called Sedition a racist
law, because it is often politically misused.

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 Judicial developments

1. Kedarnath vs State of Bihar (1962) – SC upheld the constitutional validity of

Sec 124a of IPC.
· SC observed that mere dissent cannot be a ground of sedition unless the
seditious speech tends to ‘Incitement of violence’ and ‘public disorder.’
2. P. Alavi vs State of Kerela (1982)- SC held that sloganeering , criticising the
parliament or judiciary does not amount to sedition.
3. Rajat Sharma vs Union of India (2021) – SC observed that disagreeing with the
views and policies of the government cannot attract offence of sedition. It
cannot be invoked to quiet the disquiet.
4. S.G. Vombatkere vs Union of India (2022)- SC kept the sedition law in abeyance
and the union of India has decided to re-examine and reconsider the provisions
of Sec 124a of IPC.

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 ● Sedition as a cognizable offense:
○ Sedition was made a cognizable offense for the first time in history in India
during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest
without a warrant was now permissible.
○ In 1962 the Supreme Court of India interpreted the section to apply only if there
is, say, “incitement to violence” or “overthrowing a democratically elected
government through violent means”.

Way forward
1. Law commission of India’s 2018 report - Section 124a should be invoked only in
cases where the intention behind any act is to disrupt public order or to
overthrow the government with violence and illegal means.
· Section 124a must remain, however the word ’Sedition’ can be
substituted with another.
2. The definition of sedition should be narrowed down , limiting the issues related
to sedition to sovereignty and territorial integrity of the Nation.
3. SC order in Kedarnath judgement should be followed in letter and spirit.
4. Government review of Sedition law on the basis of judicial pronouncements and
law commission suggestions.
5. Parliamentary debates- MP Shashi Tharoor introduced a private members bill in
2015 to amend sec 124a and to term only those actions/words as seditious that
directly result in use of violence or incitement of it.

Conclusion
The government must take a comprehensive review of the law and must walk the talk to
ensure the concerns of public order and sovereignty of the Nation are balanced by the
fundamental rights of Free speech and expression, thus upholding the core democratic
values.

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 Uniform Civil Code

Context:
The Debate on Uniform Civil Code and its implementation has intensified over the years,
especially because NDA II government has promised UCC as a part of its manifesto.

Definition:
A Uniform Civil Code (UCC) is one that would provide for one personal civil law for the
entire country. This would be applicable to all religious communities in their personal
matters such as marriage, divorce, inheritance, adoption etc.

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 ● Article 44, one of the Directive Principles of the Constitution lays down that the state
shall endeavour to secure a UCC for the citizens throughout the territory of India.

Arguments for UCC-:

1. Simplification of personal laws- Personal laws are segregated on the basis of
religious beliefs, which leads to complexity in enforcement and reforms in the
same. A uniform civil code will bring uniformity and simplicity in formulation and
implementation of such laws.
2. Gender Justice- The religious personal laws are often biased against the female
gender, thus bringing injustice to the same. A uniform civil code will help develop laws
based on equity of gender thus bringing Gender Justice. Ex: Coparcenary laws in
Hindu personal laws. No Woman can be the chief of Hindu Undivided Family (HUF)
3. Protection of Vulnerable sections- Personal laws often include the criteria of caste,
sects etc. which leads to discrimination against certain vulnerable sections of the
society. A uniform Civil code built on the Constitutional principles of Justice and
Equality will help address the same. Eg: Polygamy is allowed for men in Islam,
making it difficult for the women and children to feel safe.
4. Promote the idea of Secularism- Secularism forms a part of the basic structure of
Indian Constitution. This secularism should also be a part of the personal laws which
makes legal jurisprudence go beyond religious to constitutional principles.
5. National integration- A uniform civil code will bring a sense of oneness of identity
which is fragmented as different personal laws perpetuate religious fragmentations
amongst the populace.
6. Removing inter religious difficulties- With increasing inter religious marriages and
syncretism, it is necessary to remove the difficulties in inter religious legal
jurisprudence. Ex: Under Special marriage act,As per Section 16, the marriage
officer on receiving an application shall give a public notice allowing a period

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 of 30 days to raise objection to the marriage in reference to the conditions
mentioned under Section 15.
7. Previous experience- Goa is the only Indian state that has a uniform civil code. Its
experience can be emulated on a National level.

Arguments against UCC:

1. Constitutional protection- Indian constitution through Fundamental rights provides
certain rights to practice, propagate religion which also includes following personal
laws based on the same. Ex: Article 25(Individual’s Fundamental right to religion),
Article 26 (Right to manage its own affairs in religious matters).
2. Secularism- Indian model of secularism is of principled distance approach where the
state doesn’t interfere in the religious matters unless to reform dogmatic practices.
Imposing a UCC over the prevalent religious personal laws might violate the same.
3. Concurrent list matter: Constitutional Framers did not intend total uniformity. Ex:
Personal laws were placed in Concurrent List(power to legislate being given to
Parliament and State Assemblies).
4. Tribal Customary laws: Many tribal groups in the country, regardless of their religion,
follow their own customary laws. Imposing a Uniform Civil Code violates the tribal
policy of protecting rights of tribal communities.
5. Communal Politics: The demand for a uniform civil code is considered to be framed in
the context of communal politics which defeats the purpose of reforms and limits it
to religious hegemony.
6. Law commission suggestions- A uniform civil code “is neither necessary nor desirable
at this stage” in the country, the Law Commission of India argued in 2018.

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Way Forward
● Awareness generation: Awareness generation amongst the individuals regarding the
true nature and positive effects of UCC through media support and social media.
● Eradicating discrimination: Law Commission underlined the need to eradicate
discrimination within personal laws .Women’s groups and human rights lawyers’
organisations have prepared drafts containing gender-just and secular family laws.
● Adopting a gradual and piecemeal approach: UCC should be approached in a Step
by step process gradually ensuring public trust and increasing acceptability. Example-
Allowing entry of women in Sabarimala, Criminalizing Triple Talaq
● Approaching religious leaders across lines- Religious leaders of all religions should
be approached and brought together to discuss and debate on the viability of a
Uniform Civil Code. Example- Historical Episode of Din-I-Ilahi of Akbar
● Codification of all personal laws: Through codification, one can arrive at certain
universal principles that prioritise equity over imposition of uniform code in
procedure .

Conclusion
As legal luminary Dr. Faizan Mustafa asserts, A gradual and piecemeal approach towards
UCC should be taken which should be based on proper deliberations and discussions across
religious divide. Such a law would be well formulated to fulfil the constitutional
commitments under Article 44 .

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 Anti-conversion laws

Context:
Anti-Conversion Laws have now started being implemented across states. So, it is important to
understand the relevance of these laws, their impact on the social structure of India, and also
their pros and cons.

Definition:
Anti-conversion laws refer to laws that are designed to prevent or prohibit the conversion
of one religion to another. These laws may be used to prevent individuals from leaving a
particular religion or to prevent religious groups from proselytizing or recruiting members from
other religious groups

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▪ Recently Hon’ble Supreme Court observed that Religious conversion by force is a
serious issue which affects freedom and security of country, citizens. This resurfaces the
debate around Religious conversion laws and their applicability.

Arguments for retaining anti-conversion laws:

● Control rather than blanket ban: The anti-conversion laws are not brought to stop
the conversion but are intended to prohibit fraudulent conversions.
● Promote and protect religious freedom: The anti-conversion laws provide stringent
provisions against forced conversion, they are considered as necessary safeguards
for the protection of religious freedom.
● Prevention of change in demography: They are considered a remedial measure to
the problem of conversion which is considered to bring demographic change.
● Constituent assembly debates: During the Constituent assembly debates, several
leaders including Sardar Patel had expressed concern about forceful conversions in
India which later became the moral base of anti-conversion laws in India.
● Propagation rather than forceful conversions: The Constitution confers on each
individual the fundamental right to profess, practice and propagate his religion.
The Supreme Court in Stanislaus' judgement pointed out that this right does not
include conversions.
● Marriage as a Means towards religious conversions- In recent times, marriages are
being used as potent means to further the ends of religious conversions. Often these
marriages are done through coercion which leads to a societal problem.

Argument against anti-conversion laws-

● Burden of proof: The burden of proof that the conversion was ‘lawful’ lies on the
person who has ‘caused’ the conversion. This may lead to violation of
Fundamental rights under Article 20(3) i.e. protection against self-incrimination.

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 ● Vague Terminology and scope of misuse: The uncertain and vague terminology like
misrepresentation, force, fraud, allurement presents a serious avenue for misuse.
● Religious and social biases: Anti- conversion laws might be a tool to implement
social control and by favouring one religion over other, it may lead to a religious
turmoil.
● Coercive actions leading to fear: Prosecution or arrest rarely happen, but it leads
to an atmosphere of fear amongst religious institutions as well as individuals
propagating one’s religion.
● Social control- Anti-Conversion laws also create an atmosphere of fear amongst the
couples willing to do inter-faith marriages. This leads to reinforcing the social
stereotypes against inter faith marriages and might lead to affecting inter faith
interactions.
● Against freedom of religion: Religion or spirituality is the most integral part of
human nature and thus any undue ban on it can be a gross violation of human
rights.
● Fundamental rights of individuals- It has a scope of hampering upon the
fundamental rights of individuals such as that to choose their partners or practice
religion based on conviction. Ex: SC in Hadiya case pointed out choosing one’s
partner is a part of Right to life under Article 21.

Court cases
1. Rev. Stainislaus vs State of Madhya Pradesh & Ors (1977): It examined the earliest
anti-conversion statutes in Madhya Pradesh and Orissa. Court upheld the
constitutionality of both the Acts on the ground that these efforts to restrain the
conversion are for securing freedom of conscience and public order.
Any challenge to anti conversion laws passed would require the Supreme Court to
relook at its Stainislaus judgment while also taking the right to privacy judgment
into account.

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 2. Hadiya case 2017- Neither the State nor the law can dictate a choice of partners or
limit the free ability of every person to decide on these matters.
The principle that the right to marry a person of one’s choice is integral to Article
21.
3. Puttaswamy Judgement- Autonomy of the individual was the ability to make
decisions in vital matters of concern to life, forming a part of the right to privacy.

Conclusion:
1. The laws need to strike a balance between freedoms provided as fundamental rights
and conversions with malafide intent.
2. Burden of proof must be put on the complainant rather than the person accused,
which will be more in line with legal jurisprudence followed in India.
3. Studying the matter thoroughly with proper data and information regarding the same
to improve the formulation and implementation of laws.

Conclusion
● As the hon’ble Supreme Court observed, Religious conversions by force becomes a
serious issue which should be dealt sensitively and effectively. The anti-conversion
laws must be formulated and implemented in such a way that it fulfils the mandate
and resolves the problem of forced conversions while upholding Fundamental rights
of the Individual.

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 Caste Census

Definition and Context:

A Caste census is the procedure of systematically acquiring and recording the
caste-wise tabulation of India's population . Census in India began in 1881
institutionalizing the collection of data regarding population of India. The last caste census
was taken in 1931 but was stopped by the British with the 1941 Census, citing financial
constraints. Recently, the demand of a caste census has resurfaced due to several
socio-political developments.

Caste- Based Census in India- A History:

● Every Census until 1931 had data on caste. However, in 1941, caste-based data was
collected but not published.
● Since 1951, India has published separate data on Scheduled Castes (SC) and
Scheduled Tribes (ST), but it does not include data on other castes.
● In absence of such data, the estimation of OBC population was based on other criterias
such as The Mandal Commission estimation at 52%.
● A Socio –Economic Caste Census was conducted in 2011 but its data about caste
was not made public. The SECC data excluding the caste data was published by the
government in 2016. The raw caste data was handed over to the Ministry of Social
Justice and Empowerment, which was studied but not released or used for any further
purposes.

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 Need for a Caste Census in India

1. Rationalizing and Streamlining Reservations – Reservations amongst caste also

suffers from horizontal proliferation i.e. some subcastes enjoy the benefit of it
while others fall behind in doing the same. Caste census can help the government in
identifying the most benefited section and reduce their share in the overall reservation
to provide an opportunity to others.
2. Evidence based policy making- India runs one of the largest affirmative action’s
campaign in the world. It is necessary that such a large campaign is based on evidence
and data rather than assumptions to make it more effective.
3. Better targeting of government schemes- Caste census will help identify the sections
which have fallen behind and need more social support . This will lead to better
targeting government schemes to such sections.
4. Breaking the stereotypes- Caste system in India comes with many stereotypes
associated with the same. A census will help go beyond such stereotypes and myths
and represent an honest and clear picture regarding the same.
5. Minority rights- Minorities in India often fall behind the majority in socio-economic
progress. A comprehensive caste census will help address this developmental gap and
bring minority at par with the majority. Ex: Sachar committee report suggested data
based policy making.
6. Constitutional mandate- Article 340 mandates the appointment of a commission to
investigate the conditions of socially and educationally backward classes and make
recommendations as to the steps that should be taken by governments.

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Why caste census is not a good idea-
1. Fuelling demand for reservations- Caste based census might lead to demand for
sub-quotas or separate quotas which can fuel the demand for reservation further thus
defeating its purpose of rationalizing reservations. Ex: Maratha reservation demand.
2. Changing dynamics of reservation- In the Janhit Abhiyan vs UOI judgement 2022,
the SC upheld the validity of 103rd Constitutional amendment act which gave rise to
EWS reservations. This changes the dynamics of reservation from a caste based to
economic based thus defeating the purpose of a caste census.
3. Strengthening caste notions and mobilization- A caste census can lead to a
resurgence of caste consciousness thus leading to strengthening of caste notions and
easier mobilization for the caste leaders.
4. Credibility of data- Castes vary from state to state in India. Also, often same surnames
are used by different caste groups. This makes it difficult to collect and enumerate
caste based data and difficult to uphold the credibility of the same.
5. Politicization of caste- Caste has always been integral to politics in India and the
demand for caste census as well as real time enumeration can lead to further
politicization of caste.

Government arguments against caste census-

● The Centre, in response to a petition filed by State of Maharashtra, seeking directions
to Union of India to disclose the Socio Economic and Caste Census 2011 (SECC-2011),
told the court that “a caste-wise enumeration in the Census has been given up as a
matter of policy from 1951 onwards and thus castes other than SCs and STs have not
been enumerated in any of the Census since 1951 till today.
● Other reasons for not carrying Caste Census of OBCs is administrative difficulty and
cumbersomeness. Analysis of OBC data collected by SECC 2011 showed that caste
enumeration was fraught with mistakes and inaccuracies and “is not reliable”.

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 ● Unlike the SC and ST list, which are exclusively Central subjects, there are multiple
state and union territory lists of OBCs.
● According to the Centre, Population Census is not the ideal instrument for collection
of details on Caste, and the operational difficulties are so many that there is a grave
danger that basic integrity of Census data may be compromised.
● Administrative incapacity as the enumerators (mostly drawn from a pool of
schoolteachers) do not have means to verify the authenticity of information.
Inadequate Knowledge of Sub Castes.

What can be done?

1. Sub-categorization of castes- Instead of a full-fledged caste census, the government
can subcategorize the castes and enumerate the same data for policy usage. Justice
Rohini Commission has been appointed for subcategorization of OBCs which can be a
step in the right direction.
2. Release SECC 2011 data- The caste data collected by the SECC 2011 must be analysed
and released to utilize it properly.
3. Technology based data assessment: The government can use technologies like
Artificial Intelligence and machine learning to assess the already available data sets
such as the SECC 2011 and condense them into meaningful categories which can
reveal some important caste-based information.
4. Rationalizing entitlements using SECC 2011 data- The SECC will help to move to the
principle of 'program-specific indicators for program-specific
entitlements'. Recognizing many dimensions of poverty and tackling them with
different programs, in multiple fields like health, education, sanitation, and mid-day
meal can be universal; others like affordable housing and disability can be targeted.

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Conclusion
● India being a welfare state focuses heavily on Affirmative action to bring about
social justice. Caste Census is a way to ensure the ends of Social justice are effectively
met. The government should employ effective alternatives so that the need of caste
census is fulfilled without relying completely on a Population census for the same.

Reservation policy in India

● Reservation in India is a form of affirmative action under which a certain percentage of
seats are reserved in the public sector units, union and state civil services, union and
state government departments and in all public and private educational institutions,
for the socially and educationally backward communities who are inadequately
represented in these services and institutions.

Rationale behind reservation-

1. Undoing the historical wrongs- The sections of the society to which reservation is
provided have been historically disadvantaged due to certain socio-economic wrongs
such as discrimination, untouchability, caste based occupations etc. The Reservation
policy aims to compensate for such wrongs and provide a level playing field for such
communities.
2. Constitutional mandate- Article 15(4) and 16(4) of the Constitution enabled the State
and Central Governments to reserve seats in government services for the members of the
SC and ST.
3. Positive discrimination and Affirmative action- Certain sections of the society are
disadvantaged as they lack access to education, economic standards and social stature.
Reservation works as positive discrimination to provide certain conditions for the
removal of such circumstances .

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 4. Social justice – Reservation through its mandate to promote all the sections of the
society through representation at all levels of economy as well as governance
participation.
5. Advancement of weaker sections - Article 15 (4), Article 15 (5), and Article 15 (6), works
for the advancement of Scheduled Castes (SC) and the Scheduled Tribes (ST) OR any
socially and educationally backward classes of citizens (Eg: OBC) OR economically
weaker sections (EWS) .
6. Representation- Article 16(4), 16(6) promotes Adequate representation of any
backward class of citizens OR economically weaker sections (EWS) in the services under
the State.

Issues raised by the current policy-

1. No real equity translation- Disadvantaged sections although provided with reservation
for representation in various spheres of life, still are unable to integrate and stand on
equitable terms with other advantaged sections. The social stratification still remains
deep rooted in minds of people.
2. Asymmetrical distribution of reservation- While reservation is provided as a blanket
action for SC/ST/OBC communities, it remains inaccessible by certain sub-groups which
are still more discriminated among the same groups and lie at the bottom of social
pyramid.
3. Lack of vertical penetration- Certain advantaged caste groups among the reserved
sections benefit the maximum from reservation and the most disadvantaged still remain
aloof of the same.
4. Perpetuating caste consciousness- Reservation divides the society on the basis of caste
and thus perpetuating the caste consciousness in society where the castes getting
advantages from reservation do not want to leave the caste identity behind whereas the
upper castes mobilize against the same.

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 5. Argument of meritocracy- It is often argued by the experts that reservation impinges
upon meritocracy in a system where the more meritorious and worthy candidates fall
behind the less meritorious due to the same. However, recently Justice DY
Chandrachaud observed that the narrow concept of ‘merit’ is not limited to ability or
agency and the notion of merit in India needs to be redefined.
6. Politicization of caste- Reservation and demand for the same also leads to politicization
of caste where politicians make promises for increasing or doing away with reservations
just for electoral gains, disregarding its social outcomes. Ex: Demands of Patidar
reservation.
7. Changing notions of reservations- The notion of reservation in India is being shifted
from social disadvantages to economic disadvantages. The recent SC judgement in the
Janhit Abhiyan case which upheld the validity of 103rd Constitutional amendment act
providing reservation to the Economically Weaker Sections highlights the same.
8. Lack of timely readjustments and revisits- The reservation policy has been stagnant
and similarly applied without timely readjustments in the same. Also, experts such as
Justice Bela Trivedi and Justice Pardiwala in the EWS judgement have argued that,
”We need to revisit reservation system in the larger interest of society, it cannot
continue indefinitely”.

Cases related to reservation in India

1. Champakam Dorairajan case 1951- The Supreme Court in the case pointed out that
while in the case of employment under the State, Article 16(4) provides for
reservations in favour of backward class of citizens, no such provision was made in
Article 15.
2. Indra Sawhney v. Union of India (1992) case - The court examined the scope and
extent of Article 16(4). The Court has said that the creamy layer of OBCs should be
excluded from the list of beneficiaries of reservation, there should not be reservation
in promotions; SC in the case had upheld 27% quota for OBCs but had struck down the

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 10% quota based on economic criteria. The SC had further held that reservation
cannot cross 50%, unless a special case was made out in “extraordinary situations
and peculiar conditions”. This condition was revisited in the Janhit Abhiyan case of
2022.
3. M. Nagaraj v. Union Of India 2006 case- The court while upholding the
constitutional validity of Art 16(4A) held that any such reservation policy in order to
be constitutionally valid shall satisfy the following three constitutional requirements:
a. The SC and ST community should be socially and educationally backward.
b. The SC and ST communities are not adequately represented in Public
employment.
c. Such reservation policy shall not affect the overall efficiency in the
administration.

4. Jarnail Singh vs Lachhmi Narain Gupta case of 2018- Supreme Court holds that
reservation in promotions does not require the state to collect quantifiable data on the
backwardness of the Scheduled Castes and the Scheduled Tribes.
5. Janhit Abhiyan vs UOI case 2022- A 5-Judge Bench of the Supreme Court has upheld
the validity of the 103rd Constitutional Amendment Act (Janhit Abhiyan v. Union Of
India). The Act has introduced 10% reservation for the Economically Weaker Sections
(EWS) in education and public employment.

What all reforms can be brought in the reservation policy-

1. Outcome oriented policy- The policy of reservation must focus on actual realisation
of outcomes to make the affirmative action’s more consistent with its goals. Justice
Pardiwala in the EWS judgement rightly pointed out that ,”Reservation is not an end
but a means to secure socio-economic justice. It should not become a vested interest.”
2. Sub Categorization of castes- The caste groups under SC/ST/OBCs should be sub
categorized to gather further data on vertical penetration of reservation benefits. The

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 policy should be further tweaked to ensure that benefit of reservation is accrued to all
sub-groups equally, uplifting them all. The government appointed Justice Rohini
Commission for subcategorization of OBCs.
3. Caste mobility- Caste mobility is a reality. A number of caste groups that were known
as ‘backward’ have passed the grade to be called as ‘forward’. It is time now to evolve
and design a more nuanced framework for analysing backwardness and
discrimination based on real social experiences of citizens and communities.
4. Equal opportunities for education and capacity building- Equal opportunities
to quality and affordable education will reduce the struggle among more and more
communities to get classified as ‘backward’.
5. Focus on removing caste based discrimination- Unless, the caste-based
discrimination is eliminated completely from the society, the grounds for caste based
reservation will exist and remain valid
6. Equal opportunities commission- An Equal opportunities commission based on the
USA model can be set up which can take up tasks such as make a deprivation
index taking data from the socio-economic censuses of different communities
including caste, gender, religion, and other group inequalities and rank them to make
tailor made policies.

EWS judgement and outcomes

1. The 103rd Amendment Act Introducing the Economic Weaker Sections (EWS) criteria
provides for reservation of jobs in the Central Government jobs as well as admissions in
the Government educational institutions. It is also applicable on admissions to private
higher educational institutions. This reservation is “in addition to the existing
reservations and subject to a maximum of 10% of the total seats in each category”
adding the Article 15(6) and 16(6) in the constitution of India.

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 2. Economic disadvantages valid criteria for providing reservations. The policy of
reservation must evolve and take into consideration other deprivations for which
affirmative actions can be provided.
3. Revisiting Indra Swahney judgement and the 50% upper limit for reservation- the SC
held that the 50% ceiling is for backward classes and it “overstretched to the
reservation provided for entirely different class, consisting of the economically weaker
sections”.
4. Reservations in private institutions is not per se violative of the basic structure.
Reservations as a concept cannot be ruled out in private institutions where education is
imparted. The view concurred with the earlier Judgment in the Pramati & Society for
Unaided Private Schools (2014).
5. Exclusion of SC/ST/OBCs from EWS criteria- Article 16(4) has exhaustive provisions for
reservation in favour of backward classes. The provisions of the Amendment Act have
introduced another affirmative action that is separate and distinct .

Minority view in the Judgement-

1. Economic criteria cannot be sole criteria for reservation as the Constitution says
that reservations can only be about the community and not about the individual.
While access “to public goods” such as tax breaks, subsidies can be allowed,
reservation in public employment would not be permissible.
2. The exclusion of SC/ST/OBCs is unconstitutional as it goes against the idea of
Fraternity enshrined in the preamble. Also it denies the chance of “mobility from the
reserved quota (based on past discrimination) to a reservation benefit based only on
economic deprivation”. The exclusion of socially backward communities on the
grounds that they already enjoy quota benefits will be arbitrary.
3. Breaching of 50% limit could “eat up the rule of equality” and become “a gateway of
further infractions” which in fact would result in compartmentalisation.

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 4. While formulating the reservation policies, the observations of Dr.Ambedkar have to
be kept in mind that reservations are to be seen as temporary and exceptional or
they could eat up the rule of equality.

Conclusion
● Reservations in India are potent means to ensure socio-economic equity and bring all
the sections of the society on equal standing. However, the status quo on reservation
leading to further demands of the same becomes a long term social issue for India.
The solution to Actualize Social Justice in India lies in sensitization and eliminating
discrimination of all kinds through social and political mobilization. Along with the
same, data based policies might help ensure that the benefits of reservations reach to
the last man in the line, fulfilling the Gandhian objectives of Sarvodaya and
Antyodaya.

Local self-government:
● Local self-government is the third-tier of government in India which is responsible for
management of local affairs and become the institution of Governance on the ground.
These can be both urban and rural local self-governments.

Provisions for local self-government in India-

● Ashok Mehta Committee (1977)- Recommended a two-tier Panchayat Raj
institutional structure consisting of Zilla Parishad and Mandal Panchayat.
● V.K. Rao Committee (1985)- Recommended making the “district” as the basic unit of
planning and also holding regular elections
● M. Singhvi Committee (1986)- Recommended providing more financial resources and
constitutional status to the panchayats to strengthen them

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 ● 73rd and 74th Constitutional Amendments were passed by Parliament in December,
1992. Through these amendments local self-governance was introduced in rural and
urban India. Article 243 to 243O (panchayats), 243P to 243ZG (municipalities) .

SECTION 66A OF IT ACT, 2000

Context
○ In 2015, Supreme Court delivered a judgement (Shreya Singhal vs UoI) striking
down Section 66 A of the Information Technology Act, 2000
● About the IT Act 2000
○ It provides for legal recognition for transactions through electronic
communication, also known as e-commerce
○ It also penalizes various forms of cyber crime
○ It was amended in 2009 to insert a new section, Section 66A
● Section 66A, IT Act 2000
○ It criminalises the sending of offensive messages through a computer or other
communication devices.
○ any person who by means of a computer or communication device sends any
information that is:
■ grossly offensive;
■ false and meant for the purpose of causing annoyance, inconvenience,
danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or
ill will;
■ meant to deceive or mislead the recipient about the origin of such
messages, etc, shall be punishable with imprisonment up to three years
and with fine.

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 ● Issues with Section 66A of IT act, 2000
○ In November 2012, there were various reports of alleged misuse of the law, and
the penalties imposed were said to be disproportionate to the offence.
○ A PIL was filed in the Supreme Court, challenging this provision on grounds of
unconstitutionality, and hampering Article 19 (1)(a)
○ So, in the Shreya Singhal Case (2015), SC said that Section 66A of IT Act has a
chilling effect on constitutional mandate
■ Further, SC said that it does not cover the offences mentioned under
Article 19(2)

FREEDOM OF MEDIA

Context-
● Media functions as the fourth pillar of a democracy along with Legislature, Executive
and Judiciary. Importance:
○ It is a civic forum, ie. it is run by the civil society (non-state actors). Basically, it
is a parliament of citizens
○ Acts like a watchdog by controlling and checking state absolutism
○ Plays a protective role and carries the voice of the neglected to the decision
makers.
○ Shapes the agenda of the government
○ Promotes freedom of speech and expression
○ Informative Function- informs people about the plans and policies of
government
○ Informs even the Government about happenings of the country and enables
them to tackle law and order issues
○ Leads to constructive criticism and formation of new ideas

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 ● Concentration of Media Ownership
○ There are a few major players in media ownership- This phenomena is called
Murdochisation of Media Space-

○ ‘Murdochization of the Media’, a phenomenon that started in the mid-1990s,

thanks to the omnipotent media mogul Rupert Murdoch who actively
promoted what later came to be known as infotainment-driven television
news

○ The same media house controls the 4 kinds of media- Print, Radio, TV, Digital
● Issues:
○ Corruption in media- Godi Media
○ Paid News
○ Fake News
○ Post-truth era- Reporting is done not for telling the truth, but showing what
masses want to see (high drama news reporting)
○ Manipulating TRPs to gain legitimacy- Eg: TRP scam wherein certain
channels paid money to households to keep their respective channels playing-
Data breach by BARC
○ Increasing reliance on Ad revenue leading to screen-gluing content.
○ Yellow Journalism- newspaper
reports that are written in an
exaggerated way in order to shock the
readers
○ Gonzo journalism is a style of
journalism that features the author
as its protagonist, simultaneously
experiencing and reporting on a
story from a first-person point of
view. The writer becomes part of the story, portraying events through their

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 own experience, which offers readers their version of the truth. It fills the report
with emotions, and distracts the viewer from real subject matter.
○ "Gotcha journalism" is journalism designed to elicit damaging answers or
information from people - leading questions that get them to admit guilt,
shame and other dramatic emotions on screen
○ Post-truth represents a situation when facts take the backseat and emotional
appeals and personal beliefs start shaping public opinion.
○ Private treaties between corporates and media houses in terms of equity and
trade
○ Media trial- As seen in the Sushant Singh Rajput Case, Hyderabad Veterinarian
Gangrape Case etc. Issues:
■ Right to Privacy
■ Right to Reputation
■ Contempt of Court
○ Kangaroo Court
■ An unofficial court held by a group of people in order to try someone
regarded, especially without good evidence, as guilty of a crime or
misdemeanour
○ Doctrine of Postponement- As a preventive measure to protect the press from
getting prosecuted for contempt and also to prevent administration of justice
from getting perverted or prejudiced.
● Test of Reasonable Proportionality
○ A commonly employed legal method used by courts around the world, typically
constitutional courts, to decide cases where two or more legitimate rights clash
○ In the context of Media, it is used to decide between Freedom of Speech and
Integrity of the Nation. It means:
■ There cannot be any one formula to test reasonableness
■ It would depend on prevailing conditions of time

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 ■ Restrictions cannot go beyond the requirements of censure

● FREEDOM OF SPEECH AND EXPRESSION- THREATS AND RELEVANCE

○ Threats to Freedom of Speech
■ Archaic and Absolutist
■ Shows weakness of Political class
■ Shows weakness of Judiciary
■ Corrupt enforcement machinery
■ Complacency of media houses and publication houses
○ Relevance of Freedom of Speech
■ Valuable for its intrinsic value
■ Cornerstone of democracy
■ Essential to sustain
■ Ultimate good is better for free trade of ideas
■ Greater the freedom of speech, greater would be society’s movement
towards new ideas, new values and new discoveries
■ When it comes to freedom of speech, it is always more relevant to go for
the side of freedom

● Article 19(1) (b)- Freedom of Assembly and Association

○ All citizens shall have the right to assemble peaceably and without arms
○ They enable citizens to achieve their collective goals
○ Enable political mobilization of people
○ Laws around Freedom of Assembly
■ Police Act, 1861
● Police can direct conduct of assembly and procession
● The assemblies that are likely to cause breach of peace are
required to obtain license.

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 ■ Prevention of seditious meetings act
■ CrPC, 1872, 1973
■ AFSPA, 1958
■ Section 144, CrPC
● Court has upheld its constitutional validity, but it has still not laid
down the guidelines for its use.
● It has also justified the prior permission norm (that prior
permission is needed to assemble in case the section is applied)
○ Article 19(1) (c ) Right to Association
■ Unlawful Activities (Prevention) Act, 1967
● Apex Court said that due process has to be followed , in the
following way:
○ Giving notice in advance
○ Giving a chance of hearing
● Mere membership without any linkage to any violent act does
not amount to a crime
● Right to form association does not include the right to achieve
the aims of that association
● Article 19(1)(d),(e) - Freedom to move and reside freely throughout the territory of
India
○ These twin rights were envisaged as protection against sub national restriction
on movement and residence
○ Basic reason- Overwhelming majority of Migrant Workers are Intra-State.
Reasons:
■ Restrictions on acquisition of property in many states. Eg: Jammu and
Kashmir, North Eastern States, Himachal Pradesh
■ Quotas for locals in educational institutions. Eg: Delhi University
Colleges have 85% seats reserved for Delhi domicile

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 ■ Resistance of locals towards outsiders. Eg: Son of Soil movement in
Maharashtra
○ Gunda Acts in many states:
■ They provide for externment of persons who are likely to commit crime
■ The court had upheld the same and offer minimal procedure safeguard

RIGHT TO INFORMATION

PYQ
“Recent amendments to the Right to information Act will have profound impact on the
autonomy and independence of the Information Commission”. Discuss (Answer in 150
words)

● Basics
○ According to Thomas Jefferson “Information is the currency of democracy,”
and critical to the emergence and development of a vibrant civil society.
○ Genesis of RTI law started in 1986, through judgement of Supreme Court in
Mr. Kulwal v/s Jaipur Municipal Corporation case, in which it directed that
freedom of speech and expression provided under Article 19 of the
Constitution clearly implies Right to Information, as without information
the freedom of speech and expression cannot be fully used by the citizens.

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 ○ Important Section of the RTI Act:
■ Section- 2(j) : "Right to Information" means the right to
information accessible under this Act which is held by or under the
control of any public authority and includes the right to:
Inspection of work, documents, records;
● Taking notes, extracts or certified copies of documents or
records;
● Taking certified samples of material;
● Obtaining information in the form of diskettes, floppies,
tapes, video cassettes or in any other electronic mode or
through printouts where such information is stored in a
computer or in any other device.

● Recognition:
○ No mention of RTI in the Indian Constitution
○ However, the Apex Court in various cases has included RTI under articles of
Indian Constitution like Article 19(1)(a), 21, 39(b), 39(c)
■ Raj Narain Case, 1975
■ S.P. Gupta Case, 1982
● Background of the demand of democratisation of information:
○ 1250- Magna Carta
○ After Colonisation
○ 1970s, in South East Asia, Africa
○ Arab Spring

● Need for RTI Regime:

○ Deepening democratic consciousness

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 ○ Global and domestic advocacy
■ Transparency international, world bank, National Campaign of People
of Right to Information(NCPRI)
○ Growing awareness about perceived benefits of RTI
○ Potent tool against corruption
○ Can help in correcting power asymmetry between government and citizens
○ Help in demystifying the Government
○ Can be a key to realize other rights
○ Can also help in improving the quality and pace of decision making in
government
○ Will improve record keeping in Government
● Criteria to assess a sound RTI regime
○ Wide access:
■ Low fees
■ Free for BPL
■ Easily understandable format
○ Penalties for denial of access
○ Independent appeal mechanism
○ Maximum disclosure, minimum exceptions
● What is a Public Authority in RTI Act 2005?
○ "Public authority" means any authority or body or institution of self
government established or constituted—
■ by or under the Constitution;
■ by any other law made by Parliament/State Legislature.
■ by notification issued or order made by the appropriate Government,
and includes any—

○ body owned, controlled or substantially financed;

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 ○ non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate
Government.
○ The following doubtful bodies are covered under Public Authority under RTI
Act
■ The Office of President and Governor- In 2011, the Governor of Goa
moved to Supreme Court against Bombay High Court’s order declaring
his office to be a public authority
■ Sporting federations
■ Political Parties- Chief Information Commissioner declared that 6
National Parties should be covered under RTI, on the following grounds:
● They get concession under Income Tax Act
● Free air time on state media
● Prime Real Estate to set up offices
● Issues and Challenges wrt RTI:
○ Bureaucratic mindset and delays
○ Most government departments have not made any specific budgetary
allocation for RTI Machinery
○ Lack of Political Will for Information dissemination
○ Right to reject frivolous applications is often misused
○ Shallow awareness- Partial knowledge about RTI and its implication
○ The Railway Coach Syndrome- Once you get in the system, you do not allow
anyone else to get in
○ Several vague terms and phrases
■ Reasonable Fees
■ Larger Public Interest
■ Substantially Financed

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 ○ Information Commissioners have come to be dominated by retired
bureaucrats, and the extent of penal provisions have hardly been utilized.
○ No organic links between state Information commission and Central
Information Commission
● RTI AMENDMENT ACT, 2019
○ The Bill amends Sections 13 and 16 of the Right to Information (RTI) Act, 2005.
○ Appointment- Section 13 of the original Act sets the term of the central Chief
Information Commissioner and Information Commissioners at five years (or
until the age of 65, whichever is earlier). The amendment proposes that the
appointment will be “for such term as may be prescribed by the Central
Government”.
○ Salary- Again, Section 13 states that salaries, allowances and other terms of
service of “the Chief Information Commissioner shall be the same as that of the
Chief Election Commissioner”, and those of an Information Commissioner
“shall be the same as that of an Election Commissioner”. The amendment
proposes that the salaries, allowances and other terms of service of the Chief
Information Commissioner and the Information Commissioners “shall be such
as may be prescribed by the Central Government”.
○ Term- Section 16 of the original Act deals with state-level Chief Information
Commissioners and Information Commissioners. It sets the term for state-level
CICs and ICs at five years (or 65 years of age, whichever is earlier). The
amendment proposes that these appointments should be for “such term as
may be prescribed by the Central Government”.
● IMPACT OF RTI
○ It has emerged as a Grievance Redressal Tool
○ Exposing corruption and wasteful public expenditure
○ Sections of Rural Population are also able to access information now

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 ○ RTI has set the trend towards other rights based legislation like Right to
Education, Food Security Act etc.
● Recommendations of 2nd ARC with respect to Right to information
○ Repeal of Official Secrets Act
○ Make public officials take an oath of transparency
○ Periodic review of Second Schedule (Allowances, Privileges, Emoluments)
○ Classification of Confidential Documents:
■ Top Secret- Disclosure will lead to very grave Damage
■ Secret- Disclosure will lead to grave Damage
■ Confidential- Disclosure will lead to Damage
■ Restricted- For Internal Security
○ Changes in selection procedure of Information Commissioner
■ Selection Committee to include Chief justice of India instead of union
minister, and a civil society representative
■ Atleast half of the members should be from non-services background
○ Access to information (A2I)
■ Set up 4 regional offices of Chief Election Commissioner
■ All organizations having more than 1 PIO to designate a Nodal PIO
■ Single Window Agency in district to receive request on behalf of all
PIOs in the district
■ Suo Motu disclosure to be available in the print form and available free
for reference
○ Professionalize record management
○ Funding, Training, Awareness Generation about RTI
○ Set up a National Coordination Committee chaired by CIC
○ Bodies substantially Funded by Government should be brought within the
ambit of RTI

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 ■ Any organization which receives 50% funding or 1 crore in last 3 years
should be deemed to have received substantial funding
○ Take steps for checking frivolous complaints

● Article 21- Right to Life

Article:
Protection of life and personal liberty - No person shall be deprived of his life or personal
liberty except according to procedure established by law

○ Article 14, 19 and 21 - Form the golden triangle of Fundamental Rights

○ A.K. Gopalan Case (1950)- Supreme Court endorsed procedure established
by law. This means that security as provided only against executive action, not
legislative action
○ Maneka Gandhi Case (1978)- Article 19 and 21 are no watertight
compartments and test of reasonableness must also apply to Article 21.
Therefore, court introduced due process of law in Article 21

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 Right to Die

○ Arguments in Favour of Decriminalizing Suicide:

■ Would bring Indian laws on parity with global laws. England has
given it up in 1961
■ Right to die has been recognized in Indian Philosophy (Body is the
prison of our soul, Santhara in Jainism, and the Belief that Life is a
suffering in Buddhism)
■ A high rate of suicide reflects failure of society
■ Commission of crime vs attempted crime: there is a distinction. It
can’t be applied to suicide

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 ● Article 309 of IPC- Attempt to suicide and jail for 1 year
● Article 305 of IPC - Abetment to suicide and punishment upto
10 years
○ Arguments against decriminalisation
■ It is based on individualistic tradition of capitalism, wherein
everything is viewed as a private property
■ Government has the duty to prevent violence in the society, even
when it is self-inflicted
■ It is a mirror opposite of right to life , as one has no option to resume
it.
○ P. Rathinam Case (1994)
■ Penalizing attempt to suicide violates right to life
○ Gyan Kaur, 1996
■ Criminality of attempt to suicide restored
○ The court emphasized the distinction between constitutionality and
desirability of law
○ Right to life does not include right to die, but right to die with dignity. So, it
opens upo the debate on Euthanasia.
○ EUTHANASIA/ Mercy Killing
■ Passive Euthanasia- Removing life support voluntarily
■ Active Euthanasia- Injecting a legal drug
■ Arguments in Favour:
● It is already practiced informally in many countries
● It ends individual suffering

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 ● Opportunity cost of hospital bed dedicated for the purpose
● Very high cost of keeping patient on life support
■ Arguments against Euthanasia
● Violates the Hippocratic Oath
● Leaves no room for recovery and miracles

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 ● Can be abused in case of involuntary euthanasia
● Would slow down the research on crippling illnesses
■ Aruna Shanbaug Case, 2011- Passive Euthanasia
● Every request will be adjudicated by 2 High Court Judges after
seeking the opinion of 3 doctors
■ Living Will- Advanced Medical Directive (AMD)
● It is a legal document in which a person specifies what actions
should be taken for their health if they are no longer able to
make decisions for themselves because of illness or incapacity

PLIGHT OF UNDERTRIALS

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 Context-
In 1922, Mahatma Gandhi was sentenced to a six-year jail term on the charge of sedition.
But was the charge ever proved? No. The father of our nation was an undertrial when he
wrote the first part of his autobiography ‘My Experiments with Truth’. Sadly, the issue of
undertrials has continued to plague our society TILL DATE.
The issue is so severe that in November 2022, President Droupadi Murmu pointed out to the
rising number of undertrials in India.

DEFINITION:
An undertrial is a person who is being held in custody awaiting trial for a crime.

○ Law Commission report from 1979 noted that the share of those in pre-trial
detention was 57.6% as of January 01, 1975, and the Commission lamented
that “jails should
primarily be meant for
lodging convicts and
not for housing
persons under trial.”
○ As of 2022, 77% of
Indian prisoners are
actually undertrials
(NCRB Data)
○ India currently has the
sixth highest share of
pre-trial detainees in the world, according to data collated by the World
Prison Brief

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 ○ Causes of High rate of undertrials:
■ Socio-economic status- The lower classes do not have enough means
to defend themselves. They cannot raise bail money
■ Inadequate police and investigative force
■ Separation of law and order from investigative part has not been
carried out
■ The list of non-bailable crimes is increasing
■ Prakash Singh Case,
2005- Corruption in
police
■ Poor prosecution
and low rate of
conviction
■ Ineffective legal aid
system
■ Shortage of Judges
■ Section 436A of CrPC
added in 2005
● It allows undertrials to be released on his own surety if s/he
has already spent half of the maximum sentence for his
alleged offence (except death penalty)

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 ○ This section is hardly being implemented
■ Bhimsingh Case (2014)
● Apex court directed to Government to implement the section
effectively (Section 436A)
○ Issues with high rate of undertrials
■ According to a report by Amnesty International (2017):
● It can violate the rights to liberty and fair trial
● Adversely impact the lives and livelihood of those
incarcerated.
● Prolonged undertrial detention also increased the risk of
torture or other ill-treatment.
○ Recommendations
■ Law Commission Recommended:
● Parole- if punishment is greater than or equal to 7 years, and
a person completed 1/3rd of it, then s/he is eligible for parole
on his own security
■ As per Apex Court, State has the responsibility to protect all residual
rights of inmates

● ISSUE OF TRANSGENDERS

○ Nalsa VS Union of India, 2014-

■ Transgender as the 3rd Gender was recognized
■ Article 14 - The word person in Article 14 includes all the three
categories:
● Male
● Female
● Transgender

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 ■ Any discrimination against transgenders is a violation of Article 15
and Article 16
■ Court rejected the binary concept of sex and gender
■ Article 19(1)(a) also includes the freedom to express one’s chosen
identity. Gender is not essentially determined by biology, but it is
also the felt experience of a person
■ Further, Self-Determination of gender is an integral part of one’s
autonomy and liberty under Article 21
■ Courts had directed the Government to provide quotas for the third
gender

■ The courts invoked the Yogyakarta principle on the rights of sexual

minority
● They provide authoritative guidance on the human rights of
gay, lesbian, bisexual, transgender and intersex persons and
the obligations of States to promote and protect these rights,
ensure full equality and address discrimination.
● ‘The right to non-discrimination on the grounds of sexual
orientation and gender identity is both fundamental and

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 universal and we call on all States to comply with the
Yogyakarta Principles in developing and implementing laws,
policies and practices in this regard,’
■ Implication:
● It would be easier for them to get basic government services
like voter ID card, ration card etc.
● Adoption rights, right to marry etc.
■ Kerala became the first Indian state to recognize Transgender as the
3rd gender officially
○ Naz Foundation Case
■ It held that treating consensual homosexual sex between adults as a
crime is a violation of fundamental rights protected by Indian
Constitution
■ The verdict resulted in the decriminalization of homosexual acts
involving consenting adults throughout India
■ Section 377 of the Indian Penal Code, introduced during British rule of
India, criminalized "carnal intercourse against the order of nature".
■ Court held that this section:
● Is unreasonable in its classification
● Violates the right to dignity and privacy under article 21
● Violates Article 19(1)(a), wherein every person has the right
to express sexual orientation
○ Apex Court overruled the judgement of Delhi High Court in 2013, and the
matter referred to the Constitutional Bench with following questions :
■ Can the order of nature form the basis of classification?
■ Does the term ‘sex’ in Article 15 and 16 include ‘sexual orientation’?
■ Does Article 377 violate dignity and privacy under Article 21?
■ Does Article 19(1)(a) include the right to express sexual orientation?

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 ○ Navtej Singh Johar & Ors. v. Union of India
■ Landmark decision of the Supreme Court of India that decriminalised
all consensual sex among adults, including homosexual sex.
■ IPC Section 377 - While the statute criminalises all anal sex and oral sex,
including between opposite-sex couples, it largely affected same-sex
relationships. On 6 September 2018, the court unanimously declared
the law unconstitutional "in so far as it criminalises consensual sexual
conduct between adults of the same sex"

Right to Life extended to River Bodies

Context:
The degrading condition of the environment has prompted us to devise innovative
measures to save it. Indian mythology has always treated River Ganga as the holiest river,
providing life to millions. However, this status was revoked by Supreme Court. It overruled
an order made in March by the High Court in Uttarakhand state, which said that the two
rivers had the same legal status as human beings.

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 ○ Whanghanui River (New Zealand) was the first river to be declared as a
living entity
○ In 2017, Uttarakhand High Court declared Ganga and Yamuna as living
entitites having all rights, liabilities and duties of a living person
■ Director of NAMAMI, Advocate General and Chief Secretary of
Uttarakhand are the parents.
■ This matter went to Supreme court , as River is inter-state, and one state
official cannot be responsible for other states.
● Right to Life for Animals
○ Included in Article 21
○ Prevention of Cruelty to Animals Act- Animals included in this list should
not be used for exhibition, training etc.
■ Bull was included in this act in 2011, and Supreme Court upheld it.
○ Supreme Court also invoked the universal declaration of animal rights that
laid down 5 basic principles (which it said should be included as Fundamental
Rights of Animals):
■ Freedom from Hunger, thirst and Malnutrition
■ Freedom from physical discomfort
■ Freedom from Pain, injury and disease
■ Freedom from fear and distress
■ Freedom to express normal patterns of behaviour
○ Further, speciesism should be treated the same way as racism

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 RIGHT TO PRIVACY

Context:
Imagine how would you feel if there was no provision for you to keep secrets. Your
preferences, your wishes, your aspirations- everything would be open for the world to
know.
It is difficult to imagine, but in North Korea, listening to foreign music and watching foreign
language cinema is a criminal activity.

PYQs:
Examine the scope of Fundamental Rights in the light of the latest judgement of the
Supreme Court on Right to Privacy.

● The long and arduous journey towards Right to 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.
○ B N Srikrishna Committee:
■ Government appointed a committee of experts on data protection
under the chairmanship of Justice B N Srikrishna that submitted its
report in July 2018.
○ In People’s Union for Civil Liberties vs Union of India, Kharak Singh vs State
of UP — Supreme Court held that the right to privacy is a part of the right to
protection of life and personal liberty under Article 21.

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 ○ Art.12 of Universal Declaration on Human Rights and Art.17 of the
International Covenant on Civil and Political Rights provide for the right of
privacy.
○ Justice K.S. Puttaswamy (retd.) vs Union of India case(2017):
● It formally recognised the right to privacy as being a fundamental
right stemming from the right to life and personal liberty,
guaranteed under Article 21 of the Indian Constitution.
● While the right to privacy is intrinsic to an individual’s ability to
exercise bodily autonomy, it is still not an “absolute right”.
● What is the debate around privacy about?
○ It is about the right of citizens to retain their private information, especially
in a digital age. So much of crucial digital information about citizens is on the
common public web, that it is difficult to protect crucial information
● Privacy and Aadhar issue:

Context:
In September 2018, the Supreme Court of India upheld the overall validity of the Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the
“Aadhaar Act”) dismissed apprehension that the Aadhaar scheme violates citizens’ Right to
Privacy.

○ Petitioners argue that the Aadhaar scheme which collects personal details and
biometrics is a breach of privacy. Security concerns:
■ a. Aadhaar is mass surveillance technology which undermines
security.
■ b. Concerns about rising data leaks of sensitive information online
■ c. Cyber security architecture is not very strong in India.
○ About Aadhar:

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 ■ Aadhaar is a unique 12-digit identification number issued to the
citizens of the country by the Government of India as identification
proof
■ UIDAI issues it
■ Supreme Court has said the Aadhaar metadata cannot be stored for
more than six months. Aadhaar Act had a provision to allow storage of
such data for a period of five years.
● So, Supreme Court has read down Section 2(d) of the Aadhaar
Act to refrain government authorities to store Aadhaar
metadata of transaction
■ Part of section 57 which allowed providing private corporations to
verify Aadhaar data was also struck down. It was held
unconstitutional.
■ As per the judgement of the Supreme Court on September 26, 2018, it
said, that Aadhaar is meant to help the benefits reach the marginalised
sections of society and takes into account the dignity of people not only
from a personal but also community point of view

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 ● Issues with Enforcing Right to Privacy
○ No law has been passed and the term “privacy” has also remained
undefined.
○ Huge multinationals are taking data of millions of Indians abroad.
○ Privacy consciousness is rather low in India compared to western countries.
○ Indian institutions like joint family, temple festivals, marriage celebrations
and community life do not encourage privacy.
○ It is difficult to enforce due to the wide expanse of the internet
○ It will impact Right to Information, and may also amount to censorship.
● Conclusion:
○ It needs to be defined what Constitutes public interest and what does not.
Public interest cannot be used as a blank cheque to hide information.
○ Balance must be maintained to protect privacy and to promote national
interest
○ The Right to Privacy shall not be limited against the State, but also a right
aginst the private corporations which collect citizen data.

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 TELEPHONE TAPPING

Context:
Phone tapping began in 1895 in New York when a city police officer suggested that
criminals’ calls should be tapped. In the series ‘Khakhee- The Bihar Chapter’, IPS Amit
Lodha is shown tapping the phone of the Gangster Chandan to catch him. So, telephone
tapping lies on the delicate line of privacy and state interest.

● Statutory Provisions
○ Section 5 of Indian Telegraph Act, 1885 allows phone tapping.
■ According to Section 5(2) of the Act on the occurrence of any public
emergency, or in the interest of public safety, phone tapping can be
done by the Centre or states.
■ The order can be issued if they are satisfied it is necessary in the
interest of public safety, “sovereignty and integrity of India, the
security of the State, friendly relations with foreign States or
public order or for preventing incitement to the commission of an
offence”.
○ Exception for Press:
■ Press messages intended to be published in India of
correspondents accredited to the Central Government or a State
Government shall not be intercepted or detained, unless their
transmission has been prohibited under this sub-section.
■ The competent authority must record reasons for tapping in
writing.
● Who can authorize Phone tapping?
○ Secretaries at the State or Union Level

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 ● Issues:
○ People’s Union for Civil Liberty (PUCL) remarked that authorizing Telephone
tapping is a violation of Article 19 and Article 21

Article 22- Protection against arrest and detention in certain cases

○ It includes the following 3 rights

■ Right to be informed about the grounds of the arrest
■ Right to be defended by the lawyer of one’s choice
■ Right to be presented to the nearest magistrate within 24 hours
(excluding journey time)
○ Exceptions to Article 22:
■ Enemy Alien:
● Subject of a country we are at war with
OR
● Indian citizen who is illegally in communication or trade with
enemy aliens
■ Detainees under Preventive Detention

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 PREVENTIVE DETENTION

Context:
The basic tenet of jail term is that a crime should have been committed. However, if a
person is jailed for Preventive Detention, it is on the basis of fear and apprehension that the
person CAN commit a particular crime.

Definition:
Preventive detention means detention of a person without trial and conviction by a
court. Its purpose is not to punish a person for a past offence but to prevent him from
committing an offence in the near future

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 ● Constitutional and Statutory Basis (No need to remember all the acts. You can add
2-3 of them as examples in your answers):
○ 7th Schedule
■ Union List- defence, foreign affairs, or security of India
■ Concurrent List- security of a State, the maintenance of public order,
or the maintenance of supplies and services essential to the
community; persons subjected to such detention
○ Preventive Detention Act, 1950
■ It expired in 1959
○ MISA, 1979 (Maintenance of Internal Security Act)
■ Repealed in 1978
○ COFEPOSA, 1979
■ Conservation of Foreign Exchange and Prevention of Smuggling
Activities
○ National Security Act, 1980
○ Prevention of Black Marketing and maintenance of supplies of Essential
Commodities Act, 1980
○ TADA, Terrorist and Disruptive Activities (Prevention) Act 1985- Repealed
○ POTA- Prevention of Terrorism Act, 2002- Repealed
○ Unlawful Activities Prevention Act, 1967
■ Amended to overcome some of the difficulties in its enforcement and to
update it in accordance with international commitments.
● Important Cases:
○ ‘Ashok Kumar vs Delhi administration’ case - SC said “preventive detention
is devised to afford protection to society.”
● Recent SC remarks:
○ Recently, the Supreme Court (SC) of India observed that preventive detention
laws in India are a colonial legacy that confers arbitrary power to the state.

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 ○ The Court warned that these laws are extremely powerful and have the
potential to provide the state with free discretion.
○ Implication of these remarks:
■ It emphasizes the importance of ensuring checks and balances on
government power.
■ It underscores the importance of protecting individual and civil
liberties while balancing the need to maintain public order and
national security
■ It aims at safeguarding fundamental rights and ensuring the rule
of law in India.

Article 23- Prohibition of traffic in human beings and forced labour

Article 23(1)- Begar and other forced labour is banned

Article 23(2)- Imposition of compulsory military service

Context:
This Article has been inserted to ensure that slavery and related crimes do not continue in
our country. So, this article and related laws can be cited when a question about slavery or
exploitative laws comes up.

○ Statutory Provisions
■ Immoral Traffic Prevention Act, 1956
■ Bonded Labour Abolition Act
○ DEVADASI SYSTEM

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 Context:
In 2019, The National Law School of India University (NLSIU), Bengaluru, and the Tata
Institute of Social Sciences (TISS) in Mumbai have studied the exploitative system of
Devadasis.
Though widely believed to have been abandoned decades ago, the practice has not died
down completely in several parts of the country.

■ About the Devadasi System:

● It is the practice of dedicating young girls to temples as an
offering to appease the gods. This practice persists mainly in
south India especially in the states of Karnataka and Tamil
Nadu.

■ Issues:
● Legal Issues:
○ Karnataka is yet to draft State Rules for the Karnataka
Devadasi (Prohibition of Dedication) Act, 1982 (KDPD
Act) despite three decades of the Act being in existence
○ Dedicated children are not explicitly recognized as
children in need of care and protection under the
Juvenile Justice Act 2015 (JJ Act), despite the
involvement of family and relatives in their sexual
exploitation.
○ Immoral Traffic Prevention Act, 1956 (ITPA Act) and
Trafficking of Persons (Prevention, Protection, and
Rehabilitation) Bill 2018 does not recognize

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 dedicated girls as victims of trafficking for sexual
purposes.
● Social
○ 92% of the respondents were dedicated when they
were minors
○ Special children, with physical or mental
disabilities, are more vulnerable
○ Very low reporting of cases of Devadasi dedication
was found, only four cases filed under the KDPD Act
(between 2011-2017)
○ Social Acceptance- Girls who are a victim of this
system are celebrated and venerated by the
society.
● Administrative and Executive
○ Only 48% of the Devadasis and the community knew
of the legislation banning dedication.
○ Law enforcement agencies were unaware that the
practice of devadasis dedication is taking place.
○ Lack of Suo-Motu Police Action
■ Recommendations
● Legislative
○ Make devadasi system a separate offence under
Juvenile Justice Act
○ KDPD Act 1982, Indian Penal Code 1860, Juvenile
Justice Act 2015, Trafficking of Persons (Prevention,
Protection, and Rehabilitation) Bill 2018 must be
adequately amended to address the issue of
Devadasis

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 ● Administrative
○ Identify the victims of Devadasi system and provide
scholarships, vocational training etc.
○ Devadasi Dedication Prohibition Officer must
identify the places which are more vulnerable to
Devadasi system
● Legal
○ Generate awareness about legal implications and
support available to devadasis.
● Educational
○ Adult education should include education against
superstitions, including the Devadasi system
● Article 25- Freedom of conscience and free profession, practice and propagation of
religion
○ (1) Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion
○ Context- Right to freedom of religion is constantly in news due to excessive
media spotlight. So, Supreme Court has asked the Centre to step in and make
very serious and sincere efforts to tackle the issue of Forced Religious
Conversion.
○ Does Right to Freedom of Religion include Right to Convert?
■ What is Religious Conversion?
● Religious conversion is the adoption of a set of beliefs
identified with one particular religious denomination to the
exclusion of others.
● Religious conversion would amount to leaving your previous
faith and adopting the new one.

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 ● Though Right to Freedom of Religion includes the right to
convert to another religion voluntarily, forced conversions are
against the Right to Freedom of Religion
■ Need for Anti-Conversion laws:
● Fraudulent Marriages:
○ In the recent past, several instances have come to the
notice that whereby people marry persons of other
religion by either misrepresentation or
concealment of their own religion and after getting
married they force such other person to convert to
their own religion.
● SC Observations:
○ Recently, the Supreme Court took judicial notice of
instances of people marrying by either misrepresentation
or concealment of their own religion.
○ According to the court, such incidents not only infringe
the freedom of religion of the persons so converted but
also militate against the secular fabric of our society
■ A petition in Supreme Court sought a declaration that fraudulent
religious conversion by “intimidation, threatening, deceivingly luring
through gifts and monetary benefits” offends Articles 14, 21, 25 of the
Constitution
■ court has said that forced conversion is very dangerous and may
affect security of the nation and freedom of religion and conscience.
■ Status of Anti-Conversion Laws in India:
● As of now, there is no central legislation restricting or
regulating religious conversions.

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 ● in 2015, the Union Law Ministry stated that Parliament does
not have the legislative competence to pass anti-conversion
legislation
● However, various states have passed anti-conversion laws .
Example- Orissa Freedom of Religion Act, 1967, Gujarat Freedom
of Religion Act, 2003, Jharkhand Freedom of Religion Act, 2017,
Uttarakhand Freedom of Religious Act, 2018, The Karnataka
Protection of Right to Freedom of Religion Act, 2021.
■ Issues with Anti-Conversion Laws:
● Antithetical to Minorities:
○ Present anti-conversion laws focus more on the
prohibition of conversion to achieve religious freedom.
○ However, the broad language used by the prohibitive
legislation might be used by officials to oppress and
discriminate against minorities
● Uncertain and Vague Terminology:
○ The uncertain and vague terminology like
misrepresentation, force, fraud, allurement presents a
serious avenue for misuse.
○ These terms leave room for ambiguities or are too
broad, extending to subjects far beyond the protection
of religious freedom.
● Antithetical to Secularism:
○ These laws may pose a threat to the secular fabric of
India and the international perception of our society’s
intrinsic values and legal system

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 ■ Rev. Stanislaus vs State of Madhya Pradesh- SC explained the
constitutionality of these state acts and denounced forceful
conversions. The court also remarked that:
● There is no constitutional right to convert
● Right to Propagate does not include the right to convert
● There can be no conversion through force, fraud or allurement
● Critique of this Judgement:
○ If the right to propagate does not include the right to
convert , the former becomes an illusory right
○ To propagate religion is not merely to impart knowledge
and spread it widely but to produce a moral and
intellectual conviction leading to action
○ Force, fraud and allurement are difficult to define. State
being made the judge of the same amounts to dangerous
form of interference in a matter which is strictly private
● PROBLEM OF SECULARISM
○ Context- In a country which is filled with religious diversity, and often religious
conflict, secularism is a narrow road to travel. It is not easy to draw the line
between secularism, freedom of religion and a national counsciousness.
○ History of Secularism in India:
■ Before 1905 (Partition of Bengal), the idea of a separate religious state
had not entered the national consciousness. However, it was being
deliberately instilled by the British after the Revolt of 1857, when they
started the practice of Hindu appeasement by isolating Muslims from
the administration.
■ Further, emergence of Sir Syed Ahmed Khan’s 2-Nation theory also
started the development of a separate religious consciousness

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 ■ With the introduction of Separate Electorates in Morley-Minto
Reforms (1909), the British government institutionalized the policy of
Divide and Rule. This was the time when enlightened Indians started
realizing that the British are trying to instill the feeling of separatism.
■ Bipin Chandra in his book “Communalism in Modern India” has
mentioned 3 stages of Communalism:
● 1st Stage- originated mainly in the second half of the 19th
Century, due to the social religious reform movement. These
reform movements were brought about to bring certain positive
changes in their respective communities
● 2nd Stage- where a particular group of people or community
starts believing that their political, economical, social and
religious interests are different from the other community.
● 3rd Stage- when a group of people, start believing that their
interests are not only divergent but also begin to clash, or are
contradictory. It is this that leads to violence
○ Secularism - Issues in India
■ The idea of secularism is perceived in India narrowly
● It is centered around the perspective of the State, rather than
that of an individual
● It is set against a narrow vision of religious tolerance, as if
Indians are ready to engage in communal violence at the drop of
a hat. Eg: Article 27 restricts the imposition of religious taxes.
● It is not focused on instilling scientific temper and reducing
the over-emphasis on religious knowledge. The Fundamental
Duty of instilling scientific temper is not enforceable in the court
of law

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 ● It focuses on Inter-religious communalism, but not on
intra-religious communalism. Eg: It does not address the
Shia-Sunni divide, the inter-caste divide within Hindus.
● It does not try to create a national identity, but focuses on
loosely defined religious identities, invariably strengthening it.
● Absence of legal and institutional framework to check
communalism
○ The Communal Violence Bill was introduced in 2005 and
again in 2014, but hasn’t been passed even today.
● Ineffectiveness of National Integration Council (NIC)
○ It is an extra-constitutional body chaired by the Prime
Minister of India.
○ It was constituted in the backdrop of communal violence
in 1961
○ However, till 2019, only Sixteen meetings have been held

○ Recommendations
■ Puncchi Commission (2007)
● National Integration Council should be given a clear mandate
○ It should prepare an annual action plan and authorized
its oversees its implementation
■ Ek Bharat Shresth Bharat should be transformed into a scheme of
national integration (As announced by Government of India in 2015)
■ An institutional and legal framework needs to be built to promote
secularism
■ Amend the RPA to empower Election Commission to de-register political
parties and de-recognize political parties violating the undertakings
given to EC

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IMBALANCE IN DEVELOPMENT ACROSS RELIGIONS

● Sacchar Committee Report on Status of Muslims (2006)

○ Suggested the setting up of an equal opportunities commission
○ NCB regularly published statistics on crimes against minorities. However, in
2015, it suggested that such data should not be published
Article 26- Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right—
a. to establish and maintain institutions for religious and charitable purposes;
b. to manage its own affairs in matters of religion; Prohibition of employment of
children in factories, etc. Freedom of conscience and free profession, practice
and propagation of religion. Prohibition of traffic in human beings and forced
labour. Freedom to manage religious affairs. THE CONSTITUTION OF INDIA (Part
III.—Fundamental Rights.—Arts. 23—26.) 13
c. to own and acquire movable and immovable property; and
d. to administer such property in accordance with law.
● How to regulate religious practices?
○ SANTHARA PRACTICE
■ Santhara is the peaceful and gradual path to the extinguishing of life. It
is an integral part of Jainism. Chandragupta Maurya took Santhara
■ Is Santhara Suicide?
● Rajasthan High Court in Nikhil Soni Case criminalised
Santhara/Sallekhana, or fast-unto-death. The court equated
Santhara to “suicide” under the Indian Penal Code
● Supreme Court is yet to rule on this matter, and it is under
temporary stay order.
■ Arguments against Santhara:

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 ● Supreme Court (Gian Kaur v. State of Punjab) has held that the
“right to life” does not include the “right to die.
● it is an ancient practice that doesn’t fit into modern thinking
(Nikhil Soni Judgement)
● The Supreme Court equated Santhara to assisted suicide
■ Arguments for Santhara
● “right to die with dignity”, has been construed to fall within the
ambit of Article 21.
● intention of the individual in taking up Santhara is not to give up
life but to take death in its own stride.
● While suicide is the unnatural and untimely termination of life,
Santhara is the peaceful and gradual path to the extinguishing of
life. It is not unnatural or sudden
● The individual also has the option of pulling out from this
process as and when she chooses to.
● Declaring it illegal affects a religious group’s freedoms
guaranteed in the Constitution under Part III
○ ESSENTIAL PRACTICES TEST
■ Context- The recent ban on wearing Hijab in educational institutions by
Karnataka High Court instilled a huge debate, and even violence at
some places. The HC cited Essential Practices Doctrine to ban Hijab. So,
this topic becomes extremely sensitive and important for UPSC in the
domain of secularism
■ About Karnataka High Court’s Judgement on Hijab (No Need to
remember. Just understand the context):
● Essential practice- It held that the use of a hijab is not essential
to the practice of Islam. Thus, the right to freedom of religion
was not violated.

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 ● Right to freedom- It ruled that there exists no substantive right
to freedom of expression or privacy inside a classroom and,
therefore, these rights were not at stake here. In High Court’s
belief, classrooms are “qualified public spaces” where individual
rights must give way to the interests of “general discipline and
decorum”.
● State discrimination- It held that the ban did not stem directly
out of the government’s order, which only called for a uniform
dress code to be prescribed by the State or school management
committees. Hence, the law did not discriminate, either directly
or indirectly, against Muslim students.
■ What is the essential practices doctrine?
● Essential religious practice (ERP) test is a doctrine evolved by the
supreme court (SC) to protect only such religious practices under
fundamental rights, which are essential and integral to religion.
● The doctrine of “essentiality” was invented by the SC in the
Shirur Mutt case in 1954.
● Dr. Ambedkar’s Argument- the state should be allowed to
intervene in matters that are connected to religion but are not
intrinsically religious.
■ Important Judgement
● Entry of women into the Sabarimala temple
● Muslim women’s entry into mosques- violative of the
fundamental rights guaranteed under Articles 14, 15, 21 and
25 of the Constitution”
● Female genital mutilation among Dawoodi Bohras-
● In Bijoe Emmanuel vs State of Kerala (1986), students belonging
to the denomination of Jehovah’s Witnesses were allowed to

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 abstain from singing national anthem that they claimed to
contradict their religious faith.
● In 2004, the Supreme Court held that the Ananda Marga sect had
no fundamental right to perform Tandava dance in public
streets, since it did not constitute an essential religious practice
of the sect.
● The Supreme Court of Canada in Multani case (2006) upheld the
right of a Sikh student to wear a Kirpan while attending the
class, without harming others.
● In 2016, the Supreme Court upheld the discharge of a Muslim
airman from the Indian Air Force for keeping a beard,
distinguishing the case from that of Sikhs who are allowed to
keep a beard.
● Entry of Parsi women married to non-Parsis in the Agyari-
Special Leave Petition in ‘Goolrukh Gupta vs Burjur
Pardiwala’
■ Article 27- Freedom as to payment of taxes for promotion of any
particular religion No person shall be compelled to pay any taxes, the
proceeds of which are specifically appropriated in payment of expenses
for the promotion or maintenance of any particular religion or religions
denomination
● HAJJ SUBSIDY ISSUE
○ Context- The government on Tuesday abolished the
subsidy being given to Haj pilgrims every year. The
government said it will use the subsidy funds to empower
the minorities.
○ What is the Hajj Subsidy- Haj subsidy refers to discounted
airfares given by the government-owned airlines, Air

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 India. It also includes assistance to Muslim pilgrims for
domestic travel to reach specially designed Haj departure
airport terminals, lodging, medical care and meal.
○ History- The policy to support Muslims in making the
pilgrimage to Mecca in Saudi Arabia, can be traced back
to 1932, when the British enacted the Port Haj
Committees Act.
○ Reason for introducing Hajj Subsidy
○ Criticism against Hajj Subsidy:
■ government subsidies have resulted in major
profits for Air India, benefiting the airlines far
more than the pilgrims.
■ f booked months in advance, it is possible to buy
cheaper air tickets, thereby doing away with the
need for subsidy.
■ minority appeasement
○ Arguments in support of Hajj Subsidy
■ Government is spending on other pilgrimages like
pilgrim facilities at the four Kumbh melas in
Haridwar, Ujjain, Nashik and Allahabad. The
Kailash Manasarovar yatra from North India to the
mountains of Tibet
■ This step can be used by separatist elements to
instill hatred
■ Article 29 and 30

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

Article 30- Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice
(2) The state shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority,
whether based on religion or language

Federalism in India

Context:
When India gained independence, there were 562 Princely states in India. There was a high
probability of secessionism and separatism. So, it was clear that power will have to be
suitably distributed, delegated and decentralized to federal units.

Definition:
Federalism is a system of government in which power is divided between a central
authority and constituent political units.

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 ● Indian Vs American Federalism
○ The United States of America is called the first federation of the world. It
has a literal federal model wherein states enjoy equal powers vis-a-vis the
Union.
○ Indian federalism, on the other hand, is termed as ‘federation sui generis‘ or
federation of its own kind. It is a quasi-federal system as it contains major
features of both a federation and union. Federation has not been mentioned in
the constitution. Rather, the Constitution terms Bharat, that is India as a union
of states (Art. 1).

Why is UPSC interested in this topic ?

India is plagued by the issue of separatism due to various external and internal factors. A
healthy federal model will help us curb the demands of separate statehood and autonomy.
So, UPSC wants an aspirant to provide solutions regarding this persistent problem of
balancing federalism and autonomy of the states.

PYQ (2015)
The concept of cooperative federalism has been increasingly emphasized in recent
years. Highlight the drawbacks in the existing structure and the extent to which
cooperative federalism would answer the shortcomings.

PYQ(2016)
Did the Government of India Act, 1935 lay down a federal constitution? Discuss.

PYQ (2019)
From the resolution of contentious issues regarding distribution of legislative powers
by the courts, ‘Principle of Federal Supremacy’ and ‘Harmonious Construction’ have

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 emerged. Explain.

Federal features in India

● Two governments – Indian system of federalism consists of a Union government at centre

and state government at state level. Post the 73rd and 74th Constitutional Amendment
Acts 1993, the third level of federalism was also constitutionalized
● Division of powers- The seventh schedule divides the power between the Central and
the state governments. For Example: Atomic energy is a part of Union List while
Agriculture is a part of State List
● Written Constitution - India has a written Constitution which is uniform for both the
centre and states. The amendment procedure which affects the federal structure can be
amended only with the ratification of half the states under Article 368.
● Supremacy of the Constitution - In systems such as the UK, the Parliament is supreme,
ie. capable of making any law by itself. In the Indian system, it is the constitution that is
supreme, not the parliament. Parliament is restricted by the Basic Structure Doctrine. Ex:
103rd Constitutional amendment with respect of Economically Weaker Section
reservation was pronounced valid by Supreme Court on the basis of Basic structure
doctrine.
● Rigidity of the Constitution- Article 368 provides for a rigid way to amend the
constitution. The federal features can only be amended by ratification of half of the states.
Recently, 97th Constitutional Amendment was declared partially unconstitutional by
Supreme Court as it infringed upon the State Subject of Cooperatives
● Independent judiciary- Article 50 of the constitution provides for separation of powers
between executive and judiciary. Example: Selection of Supreme Court Judges by
Collegium system, and declaring 99th Constitutional Amendment Act and NJAC (National
Judicial Appointments Committee) as unconstitutional proves that our judiciary is fiercely
independent

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● Bicameralism- Indian Parliament consists of the house of people(Lok sabha) and The
council of states(Rajya Sabha). While the Lok Sabha has people’s representatives, the
Rajya Sabha has representatives of the states. 91st Constitutional Act of 2002 has frozen
the representation of states in Rajya Sabha according to 1971 census
● Electoral federalism- Federalism is not merely a legal division of power, but a wider
penetration of democratic ideas. So, the electoral system and voters are becoming federal
too, as voters vote for different parties at the levels of centre and states. The concept
of One Nation One Election is being criticized on the grounds of compromising voter
integrity and autonomy of thought.

Non-Federal features of Indian Polity

● Single Constitution- Unlike the USA, Indian states do not have a separate constitution.
As a result, one uniform constitution is applicable to all the states. Article 370, which
provided for a separate constitution for Jammu and Kashmir, was abrogated in 2019.
● Single Citizenship- Single Indian citizenship of India unlike USA’s separate national and
state citizenship.
● Integrated judiciary- Unlike the USA, there is no separate state and federal judiciary in
India. Rather, we have an integrated judiciary with the Supreme Court at its apex.
● Strong Centre- Indian system is often called federalism with unitary bias. KC Wheare
called India ‘Quasi Federal’. This means the centre in India is strong vis a vis states. For
Ex: Indian polity assumes a unitary character during National emergency (Article 352).
● Flexibility of the Constitution – Certain parts of the Constitution can be Amended by a
simple majority(outside 368). Ex: Formation of new states and altering the areas of an
existing state. This makes India an indestructible unit of destructible states (Article 3)
● Centralised nature of fiscal architecture – Centrally sponsored schemes (CSS) form a
sizable chunk of intergovernmental fiscal transfer. For Ex: Centrally sponsored schemes
form 23% of transfers to states in 2021-22 financial year. Further, Finance Commission

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 appointed by the President (Article 280) decides upon the distribution of revenue
with the states
● Majoritarianism at Centre- The design of India federalism places fewer checks on the
power of national majorities. This means the parties which are strong at the centre are
often favoured in states as well by the voters. Ex: Election campaign of ‘Double Engine
Sarkaar’
● Emergency provisions- Part XVIII with Article 352, 356 and 360 etc. can turn the
constitution from a federal to unitary character without even the need of a constitutional
amendment.

Phases of Indian Federalism

How to use this portion:

You can mention the phases of Federalism in case a question is asked about evolution of
Indian Federalism.

● The dynamics of Indian federalism can be temporally categorised into four phases
from independence to the present time which is:
○ One-party Federalism (1952-1967):
■ Congress party enjoyed absolute political hegemony, both at the
Centre as well as the states, which prompted political scientist Rajni
Kothari to call it the ‘Congress System’.
○ Expressive Federalism (1967-1989):
■ The Congress party was still in power at the Centre but lost power in
many states where many regional party-led and anti-Congress coalition
governments were formed. This phase marked the emergence of an era
of “expressive” and more direct conflictual federal dynamics

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 between the Congress-led Centre and the opposition parties-led state
governments.
○ Multi-party Federalism (1989-2014):
■ During the third phase called the ‘multi-party federalism’ period, a
‘reconfiguration of Indian politics’ took place creating conditions for
the regionalisation of national politics.
○ The return of the Dominant Party Federalism (2014 to present).
■ In the current phase, since 2014, the ‘dominant party’ federalism has
returned with the rise of the BJP party. The party has captured power
in several states establishing the party’s hegemony almost similar to the
‘Congress System’.

Asymmetric federalism

Context:
Due to India’s gigantic diversity, even the federal units (states) are not carved out on the
same lines. They are drawn on various basis like political, administrative, ethnic, tribal etc.
So, many states have been given special provisions to maintain the fine balance between
autonomy and federalism.

Definition:
Asymmetric federalism implies that federalism is based on unequal powers and
relationships in the political, administrative and fiscal spheres between the units constituting
a federation. Asymmetric federalism in India is indicated by the fact that different states as
federating units have different powers.

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 https://www.thehindu.com/opinion/op-ed/in-a-system-of-asymmetrical-federalism-india-
must-remain-a-mosaic/article65769808.ece

Provisions indicating Asymmetric federalism in India:

1. Union territories- Union territories in India have different

politico-administrative structures. While, Puducherry and Delhi have
legislatures, the other territories under the Centre do not have legislatures or a
ministerial council to advise the administrator.
2. Article 370 (Now abrogated) - Under Article 370, the State of Jammu and
Kashmir was allowed to have its own Constitution, and certain other privileges
such as its own definition of ‘permanent residents’, the right to bar outsiders from
holding property, and the distinction of not having any Indian law automatically
applicable to its territory.
3. Article 371- The article 371 provides certain ‘special provisions’ which are
applicable to some other States mainly in the form of empowering the Governors
to discharge some special responsibilities. These States are Maharashtra, Gujarat,
Manipur, Nagaland, Sikkim and Arunachal Pradesh.

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 4. Sixth Schedule- The Sixth Schedule to the Constitution contains provisions for
autonomous districts and autonomous regions for the administration of tribal
areas in Assam, Meghalaya, Tripura and Mizoram.
5. Fifth Schedule- Contains provisions for the administration of scheduled areas
(having tribal population) under the article 244(1) of the constitution.
6. Unequal representation in Rajya Sabha- Indian council of states does not have
equal representation like USA, rather the representation of the states in India is
unequal and depends upon the size of the state, population of state etc.​​
7. India as an ‘Indestructible Union’ of ‘Destructible States’
▪ Article 3—>Empowers Indian Parliament to form new states and alter
the area of existing one.
Constitutional provisions that strengthen the asymmetric model of federalism
● Article 248 —>Residuary Powers with Parliament- Parliament has exclusive power to
make any law with respect to any matter not enumerated in the Concurrent List or State
List
● Article 256 —> Obligation of States and the Union—>The executive power of the Union
shall extend to the giving of such directions to a State as may appear to the Government of
India to be necessary for that purpose
● Article 356—>Provisions in case of failure of constitutional machinery in State
● Article 352—> Proclamation of Emergency
● The office of Governor as the centre’s extended hand in the affairs of the state
government—>Constitutional discretionary powers are given to governor
1. Article 163—> “Except in so far as he is by or under this constitution required to
exercise his functions in his discretion” —> Constitutional discretion.

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 ▪

Importance of asymmetric federalism:

● Overcoming initial differences of assimilation - The Constitution's special clauses
aids in the protection of rights of the regions as well as its people and compensates for
initial differences in the socio-political and administrative structure. Ex: Special
provisions for Vidarbha under article 371 to overcome initial developmental
differences.
● Protecting indigenous identities- Certain regions such as the North Eastern states
have different socio-political structures, customary practices and governance
needs. Certain special provisions such as Article 371 provides special powers to such
regions. Ex: Article 371A related to Nagaland.
● Curbing separatism and regionalism- Autonomy and special powers make the
historically excluded people feel empowered and included in the mainstream, thus
preventing the secessionist and separatist tendencies. Ex: 5th Schedule and
administration based on tribal structures in scheduled areas.
● Strengthens democracy- Hearing the voice of concern and demands of people of
different regions and providing specific solutions for the same.
● Promotes Unity in diversity – Providing special powers to protect the vulnerable
groups makes them integrate easily into the mainstream.
● Public welfare and Social justice- India being a welfare state focuses on social justice
as the ends of administration and governance. Thus, special provisions help to further

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 the same ends. Ex: Art. 46 calls to Promote the educational and economic interests
of SCs, STs, and other weaker sections of the society and to protect them from
social injustice and exploitation

Challenges to asymmetric federalism:

● Rising demand for statehood and a Source of conflict – The asymmetric model of
federalism generates a demand for special provisions among other states which leads
to conflict between the centre and the states. Ex: Demand of special category status
by Bihar.
● Discriminatory terms – The asymmetric model is often criticized for its
discriminatory terms which leads to a debate about the rationale behind them. Ex:
Domicile status for property purchases in certain hilly states.
● Arbitrariness – Arbitrary terms of justifying an asymmetric model between the
federating units generates dissatisfaction. Ex: Questions on special category status
and the states such as Jharkhand not getting Special Category Status despite
fulfilling the criteria.

Contemporary discussions- Abrogation of Article 370

Context:
Use these points in questions about Article 370 and its abrogation

● Effectiveness of asymmetric model- In 2019, when Article 370 was diluted, the debate about
the need and effectiveness of asymmetric model arose.
● Fear of imposing symmetry- Symmetry in Indian federal structure is feared to be imposed by
the dilution of Article 370 in 2019 and the subsequent discussions over the dilution of the
omnibus Article 371.

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● Sunset date for such provisions- There might be the need for special provisions under
certain circumstances, however there should be a sunset date after which the federal
structure should be uniformized and brought on similar lines.

Conclusion:
● The idea and arrangement of asymmetrical power-sharing can be unsettling if not
utilised properly. Such features in our Constitution are neither marginal nor merely
provisional. These features touch upon a considerably large number of States. And
without these features and provisions, it would not have been possible to
undermine the secessionist tendencies of a highly diverse society. Asymmetrical
federalism will continue to have its relevance in the future because to pave the way
for cooperative federalism we must be able to accommodate various groups and
provide them with a share in the governance of the country at the same time.

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 Cooperative federalism

Definition:
Cooperative federalism is a model of intergovernmental relations that recognizes the
overlapping functions of the national and state governments. This model can be contrasted
with the model of dual federalism, which maintains that the national and state
governments have distinct and separate government functions.
In general, cooperative federalism asserts that governmental power is not concentrated at
any governmental level or in any agency. Instead, the national and state governments share
power.

Instances of cooperative federalism in India:

● Separation of Powers: Schedule 7 of Constitution provides delineation of powers

between center and states so that they do not engage in overlapping functions.
(Except during emergencies which comes under judicial review)
● Coalition governments: The rise of regional political parties has increased states’
bargaining power. Eg: UPA Government had representatives from 13 political parties.
● GST Council: Passing of GST bill is a shining example of cooperative federalism
wherein States and Centre have ceded their power to tax and come up with a single tax
system to realize the dream of one Economic India with ‘One Nation, One Market’.
● NITI Aayog: Replacing the erstwhile Planning Commission, the Aayog is promoting
bottom-up approach to development planning.

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 Issues related to cooperative federalism in India-

1. Unitary bias in federal structure- The power in Indian polity is tilted towards the
centre which widens the trust deficit between centre and states.
2. Complexity of Article 131- States often challenge centre’s decisions under Article 131
(SC’s exclusive jurisdiction). Thus, litigation between centre and states is increasing.
Ex: Kerela moved SC under Article 131 in CAA 2019 case.
3. Improper use of institutional mechanisms- Institutional mechanisms such as
Interstate councils are being sparingly used which makes cooperation between centre
and states difficult.

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 4. Electoral federalism- Different parties ruling different states and the centre. The
cooperative spheres thus become the spheres of contestation and confrontations
leading to electoral opposition . Ex: State CMs walking out of COVID-19 meetings.
5. Concurrent jurisdiction of bodies – Bodies such as CBI, NCB take over the powers
of jurisdiction over cases from state police. This leads to a confrontation between
states and centre and the issues of over centralisation of policing which is a state
subject.

Way forward:
1. Rajamannar committee- It recommended that all bills affecting the federal
structure must be passed through Inter State councils before passing in the
Parliament.
2. Sarkaria Commission- Interstate councils must have mandatory sittings twice a
year. Also, utilizing Interstate councils for federal issues must become the norm.
3. Defining jurisdiction of bodies like CBI, NCB etc. There should be a principle of
subsidiarity which includes definite grounds of jurisdiction and withdrawl of general
consent by the states.
4. Democratic Decentralization of administration and strengthening governments at all
levels in true spirit. Power should be decentralized based on the principle of
subsidiarity.

Conclusion:
COVID-19 pandemic must become a wakeup call about the need of a proper functioning
cooperative federal mechanism which will help fulfil the needs and concerns of Indian
society and polity , thus ushering in an era of Good Governance.

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 One Nation One language

● Context- Recently, the Union Home Minister at the Parliamentary Official Language
Committee urged the use of Hindi as the lingua franca, rather than English, in
inter-State communication thus bringing to light again the debate around One
Nation One language.

Arguments for One Nation One language:

1. Spirit of Fraternity- A uniform language will bring together people from all the
different socio-political backgrounds thus promoting the spirit of fraternity as
provided in the constitution.
2. Administrative efficiency- One language can address the issue of language barriers
people face in administration and service delivery.
3. Enhancing service delivery- Language barriers often hamper efficient service delivery,
and a single language used across all spheres can help address the same. Ex: Hindi in
Healthcare across India.

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 4. Economically viable- Having one language saves a lot of money spent in translations
and explanations across government as well as private spheres.
5. Promotes cooperation- One Nation One language will promote understanding of each
other’s issues and help ensure socio-economic cooperation and proper communication
of ideas, beliefs, culture etc.

Arguments against One Nation One language-

1. Against diversity of India- Language is an important feature of diversity in India with
more than 19000 languages as per the Census 2011. The idea of one Nation one
language hampers upon this diversity.
2. Federal divisions- As per the census 2011, people in only 12 states and UTs chose
Hindi as their first choice of communication. Imposing Hindi uniformly goes against
the idea of Federalism.
3. Pluralistic society- India being a pluralist and heterogeneous society is based upon
multiple social and linguistic identities. Thus, principles governing homogeneous
societies such as that in the west cannot be applied in India.
4. Secessionist tendencies- Language has often been the reason for conflict and
secessionist tendencies. The demand for liberation of Bangladesh began with the
issue of imposition of Urdu in East Pakistan.
5. Economic impacts- One Nation One language can slow down migration, reduce
regional linkages and capital flow thus giving a blow to India’s economic growth.
6. Minority rights- Indian constitution upholds the rights of linguistic minorities (Art
29,30). These rights must be protected and preserved to preserve the unique culture
they represent.
7. Endangered Languages- According to UNESCO, India is home to many endangered
languages which will be on the verge of extinction if one nation one language is
imposed. Ex: Asur language.

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Way forward:
1. Three language formula: It was first devised by the central government in 1968 and
incorporated in National Education Policy. All State governments should adopt and
implement three language formula i.e. Hindi, English and Regional language to bridge
the language gap.
2. Respect diversity: India is a country of different languages and every language has its
own importance. Article 29 states that any class of citizens who have their own
specific language, script and culture will have the right to protect it.
3. Strengthen local languages: To preserve ancient philosophy, culture and memory of
freedom struggle, it’s important to strengthen local languages simultaneously without
being biased towards any one language.

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 Conclusion:
India should have a robust language policy that emphasises on the quality of language
learning rather than running language departments, both classical and modern, in almost
all its public universities.
Language in India must not become a divisive factor. Rather language can become a factor
promoting unity in diversity and thus ensuring fraternity and spirit of brotherhood in India.

Centre state relations

Context:
In a federal system of governance, such as that of India, cooperative and harmonious
relations between the Centre and the States are critical for the stability, security and socio-
economic progress of the country . In this regard, The constitution of India provides for
three types of relations between centre and states.

● Legislative Relations – The legislative relations between centre and states are
described by the Articles 245 to 255 of the Indian constitution. Further, The seventh
schedule divides the legislative powers under three lists i.e. Union list, State list and
the Concurrent list.
● Administrative relations - Articles 256 to 263 of the constitution of India deals with
the administrative relations between the Centre and the states. The administrative
jurisdiction of the Union and the State Governments extends to the subjects in the
Union list and State list respectively.
● Financial relations - Article 268 to 293 deals with the provisions related to the
financial relations between Centre and States. For Ex: Article 280 argues for setting
up a Finance Commission by the President of India every five years to fulfil the
principles of fiscal federalism.

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 Phases of Centre state relations-

1. 1950-67- Centre’s domination over states- This phase saw a Single party rule at
center and states which led to single party governance over the country. Through the
Zonal council, Planning commission and National Development Council, the
influence of the center was exerted over the states.
2. 1967-77- Process of centralization- There was strong centralizing tendencies during
this period, which is evident from the fact of imposition of a National emergency. This
phase was also characterized by emergence of multiple political parties. Through
multiple parties ruling in states as well as center, electoral opposition i.e. state
opposing the decisions of the central government was observed. Ex: Misuse of article
356 opposed by states.
3. 1977-89- Coalition and accommodation- This phase saw the emergence of coalition
governments as no strong single party could form the government. State demands for
autonomy also came to the forefront. Ex: Khalistani movement.

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 4. 1989-2014 – In this phase, there was greater federalization. A strong Multi-party
system emerged and various regional and national parties came to the forefront. While
there were coalition governments at center, regional parties dominated in states.
5. 2014 onwards- The phase of 2014 and onwards saw a strong center as well as
emphasis on Cooperative and competitive federalism. Ex: GST council and state
wise ease of doing business rankings. Exigencies such as COVID-19 also highlighted the
need for cooperation while handling such a disaster.

Issues in center state relations-

● Misuse of Article 356- Article 356 has been misused to impose President’s rule in the
state due to political or other reasons. This provision has been used more than 125
times which shows the frequency of recurrence. Ex: imposition of President’s rule in
Maharashtra after the 2019 polls.
● Appointment and removal of the Governor – Change of governor when a new party
comes to power as Governor is often considered to be the agent of the centre. Ex: change
of Governors in several states like West Bengal after the NDA government came to
power in 2014.
● Discriminatory and partisan role of the Governor- Governor acts as an agent of the
party in power at the Centre thus advocating the centres policies and motives. Ex:
reservation of bills passed by the state government with a scrupulous motive.
● Increasing Centralizing tendencies- There are increasing centralizing tendencies which
reduce the capacity of states to deal with certain issues as well as tilt the balance of
power towards centre. Ex: GST subsuming state’s power to impose taxes.
● Allocation of financial resources- Although state’s share in central pool of taxes has
been increased, states have complained of discrimination in allocation of financial
resources. Ex: allegation of discrimination by the southern states against 15th
Finance Commission. (Reliance on 2011 census, penalising south for population
control.)

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 ● Management of All India Services- State governments have no power to take
disciplinary action against the officials although they work for the state.
Ex: Recently centre recalled the West Bengal Chief Secretary after the controversy
related to cyclone review meeting.
● Encroachment of Centre on the subjects mentioned in the state list- Centre often
takes over the state list subjects and make laws imposing uniformity across the Nation.
Ex: Farm laws were said to intrude into state list subject- Agriculture
● Asymmetric federalism- Asymmetry in Indian Federalism is brought about by the
provisions according to which some states are given unequal treatment with respect to
others. Ex: Special provision to some states like Gujarat, Maharashtra etc. (articles
371 A-H )
● Power of Centre to form or destroy states- Article 3 of the Indian Constitution gives
power to the Centre to create new state or alter the boundary states even without the
consent of the state. Ex: Recently Centre bifurcated the state of Jammu and Kashmir
into two Union territories viz. Jammu and Kashmir and Ladakh.

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 Commissions on Centre state relations:

Note: Every Recommendation by every commission is not to be memorized by heart. Just

have a broad idea about what these commissions aimed at while giving these
recommendations. Read them 3-4 times, and use them in test series. You will automatically
be able to replicate them in the exam.

Sarkaria commission-
● Permanent Inter-State Council : A permanent Inter-State Council should be set up
under Article 263.
● Article 356 (President’s rule) should be used as a last resort.
● Strengthen institutions: The institution of All-India Services should be further
strengthened and some more such services should be created.
● President should communicate reasons for withholding a bill to the state
● The Zonal Councils should be reactivated to promote the spirit of federalism.
● States should be consulted with respect to armed forces’ deployment: The Centre
should have powers to deploy its armed forces, even without the consent of states.
However, it is desirable that the states should be consulted.
● 7th Schedule subjects- The Centre should consult the states before making a law on
the subject of the Concurrent List.
● Appointment of governor after CM’s consultation- The Chief Minister of the
concerned state should be consulted in the appointment of the Governor.
● Term of the governor should not be disrupted- The Governor’s term of five years in a
state should not be disrupted except for extremely compelling reasons.

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Punchi commission-
● Limit Governor’s discretionary powers(Article 163): The scope of discretionary
powers given to Governors under Article 163 has to be narrowly construed.
● Finance Commission should be made a permanent body with membership changing
every five years
● Equality of seats in Rajya Sabha- There should equality of seats to states in the Rajya
Sabha
● President should communicate to the states when a bill is pending for his/her
consideration

Conclusion:
● As hon’ble PM asserted, Federalism is no longer the fault line of Centre-State
relations but the definition of a new partnership of Team India. This new
partnership should be exploited effectively to make the states work in tandem with the
centre as well as each other and strengthen the polity of India.
● Federalism should be a meeting point of all groups. -Khil Raj Regmi “Though the
country and the people may be divided into different states for convenience of
administration, the country is one integral whole, its people a single people living
under a single imperium derived from a single source.” - Dr. B.R.Ambedkar

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 7th Schedule

Article 246 of the Constitution mentions three lists in the Seventh Schedule — union,
state and concurrent lists. While the Centre can make laws on subjects specified in the
Union list, the state governments have jurisdiction over items in the state list.

Article 246:
Subject matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to
make laws with respect to any of the matters enumerated in List I in the Seventh Schedule
(in this Constitution referred to as the Union List)
(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the
Legislature of any State also, have power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this Constitution referred to as the
Concurrent List)
(4) Parliament has power to make laws with respect to any matter for any part of the
territory of India not included (in a State) notwithstanding that such matter is a matter
enumerated in the State List

Context-
7th Schedule and distribution of subjects has been a bone of contention between Centre
and States since independence. So, consider this a running and perennial topic which UPSC
will always be interested in.

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 Significance of the 7th schedule of the Indian constitution

▪ Clear Division of Powers: The 7th schedule provides a clear division of powers
between the centre and states which prevents conflict between centre and states.
▪ Clear Responsibilities: The division of subjects into the state list, central list, and
concurrent list makes the constituent units of the federation conscious of their
respective roles.
▪ Maintains sanctity of the Constitution: The clear separation of powers between the
centre and states in the 7th schedule prevents the union from changing the
fundamentals of the constitution, thus, it helps in maintaining peace and harmony
between the centre and states.
▪ Unity and Integrity of India: After partition, national integration was of utmost
importance, and only a strong central government could protect the nation against
external threats.
▪ Autonomy to states: The devolution of legislative powers to states makes the state
independent of a union in their respective sphere.

Need for Reforms in the 7th Schedule:

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 ▪ Redundant and old: The present Seventh Schedule and union (at that time Federal)
list, state (at that time Provincial) list and concurrent lists are inherited from GoI Act
1935.
▪ Delivery of Public goods is done best at the Local Level: Most public goods people
think of are efficiently delivered at the local government level, not the Union or state
level. But without delegation of funds, functions and functionaries, presently left to
the whims of state governments, local governments are unable to respond.
▪ Increasing Centralization: Items have moved from the state list to the concurrent list
and from the concurrent list to the union list. Hitherto, such limited movements have
reflected greater centralisation, such as in 1976.
▪ Empowering Local Bodies by a Fourth List: There should be a fourth list for local
bodies along with the central, state and concurrent lists. It will lead to the devolution
of powers to local bodies and will help them in dealing with diverse matters of local
importance.
▪ Deletion of the concurrent list: The concurrent list creates a lot of confusion between
centre and state and creates a situation of dispute over the framing of legislation. Its
removal from the constitution will reduce the friction points between the centre and
states.

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 ▪ Colonial relic- The Seventh Schedule was inherited from the Government of India
Act, 1935. Therefore, it is a relic of the colonial past. The lists do not reflect
the complex realities of India in its 75th year of independence. For Ex: despite
having health as the state subject, the Union government was in a better position to
legislate on some issues related to health during COVID-19 (vaccination, for instance) .

Why the 7th Schedule needs to be retained:

● Ensuring Unity and Integrity of India: Due to partition, there was an emphasis on
national integration and only a strong central government could protect the nation
against external threats and invasions and maintain international relations.
● Enabling responsive governance: Local governments under the state list are seen as
encouraging political participation, bolster rights of minorities and communitarian
values.

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 ● Achieving Balanced economic development: Seventh Schedule favours the Union
Government to ensure economic development at the national level in a coordinated
manner and bring parity in socio-economic development across states.
● Promoting Diversity: Allocation of legislative powers to state can promote cultural
autonomy, given the unique diversity in India with respect to its geographical area,
population and number of languages spoken.
● Others: To bolster the spirit of cooperation between union and states.
● Centre State Conflict: Federal tensions in post-independence India such as state
demand for greater autonomy, further highlight the need for reforming the Seventh
Schedule.

Way forward

● Sarkaria Committee Recommendations (1998 Report): Residuary powers be

transferred from the Union List to the Concurrent List. States should be consulted
by the Centre before exercising power over Concurrent List.
● Punchi Comission- Transfer only those subjects to the concurrent list in which
uniformity is needed
● N K Singh, Chairman of 15th Finance Commission argued for transfer of subjects
such as health, water from the state list to the concurrent list as these subjects
have a nation-wide implications.

Conclusion:
● Bommai judgement: SC underlined that India is a union of states, which means to
fulfil the needs of the people, the states should be given more responsibility.

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 Demand for Special category status to the States

Special category status

● Genesis: The concept of a special category state was introduced in 1969 by the Fifth
Finance Commission. Jammu & Kashmir was the first state to get SCS.
o Over the years, more states were added namely, Assam, Nagaland,
Arunachal Pradesh, Himachal Pradesh, Manipur, Meghalaya, Mizoram,
Sikkim, Tripura and Uttarakhand.
● The rationale for special status is that certain states, because of inherent features,
have a low resource base and cannot mobilize resources for development.
● The decision to grant special category status lies with the National Development
Council. . Now, it is done by Central Government
● After the formation of NITI Aayog, 14th Finance Commission recommendations were
implemented and effectively removed the concept of SCS.
o 14th Finance Commission restricted SCS only to north-eastern and three hilly
states.

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 ● No provision in constitution: The Constitution of India does not include any provision
for the categorization of any state in India as a special category state.
● Recent demands- States such as Bihar, Andhra Pradesh have recently advocated for
the special category status for them.

Criteria for special category status

● Hilly and difficult terrain,

● Low population density or sizeable share of tribal population,
● Strategic location along borders with neighbouring countries,
● Economic and infrastructural backwardness
● Non-viable nature of state finances

Special status vs Special category status-

● Special status is provided through the Constitution whereas the special category
status is granted by the National Development Council, which is an administrative
body of the government.
○ For example, Jammu and Kashmir enjoyed a special status as per Article 370
and also special category status. But now, with revocation of special status,
Jammu and Kashmir has only special category status.

Benefits to special category status states

● The central government bears 90 percent of the state expenditure on all

centrally-sponsored schemes and external aid while the rest 10 percent is given as a
loan to the state at zero percent rate of interest.
● Preferential treatment in getting central funds
● Concession on excise duty to attract industries to the state.

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 ● 30 percent of the Centre's gross budget also goes to special category states.
● Debt swap: These states can avail the benefit of debt-swapping and debt relief
schemes.
● Exemptions: States with special category status are exempted from customs duty,
corporate tax, income tax and other taxes to attract investment.
● No lapse: Special category states have the facility that if they have unspent money in
a financial year; it does not lapse

Lacunas in implementing the Special category status-

● No Uniformity in Assigning SCS criteria: Lack of consent among states on criteria

used to assign SCS status to a state has been a persistent issue.
● Economic Progress: Data reveals that even after awarding SCS states like Jammu and
Kashmir, Uttarakhand etc. they still lag behind non category states like Haryana,
Punjab etc.
● Increased allocation: Amount of proceeds that states receive has increased (42%)
after 14th finance commission making SCS redundant.
● Pandora Box: Considering special status to any new State will result in demands from
other States and dilute the benefits further.
● Debt sustainability: Outstanding guarantee of the State governments pose a
challenge to Debt Sustainability in a situation when the borrower defaults. Ex: 20% in
J&K.

Why is special category status no more relevant ?

● Discontinuation of Gadgil formula: After the dissolution of the planning commission
and the formation of NITI Aayog, the recommendations of the 14th Finance
Commission were implemented which meant the discontinuation of the Gadgil
formula-based grants.

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 ● No improvement: States having Special category status have not shown any
perceptible improvements in the areas where they received tax incentives.
● Intensification of demand by other states: Granting status to some states like Bihar
and Andhra Pradesh would lead to the intensification of demand by other states.

Conclusion-
● A new concept of least developed states can be introduced after removing the
concept of special category status as recommended by Raghuram Rajan Committee
based on certain parameters such as per capita consumption expenditure,
urbanization rate , financial inclusion etc.

Relevance of Rajya sabha

About Rajya Sabha

● The Rajya Sabha, constitutionally the Council of States, is the upper house of the
bicameral Parliament of India. The genesis of the Rajya Sabha can be traced to
the Government of India Act, 1919, which provided for a second federal chamber of
Parliament.
● Asserting the federal nature of the Indian polity, Rajya Sabha ensures
healthy bicameralism not only as a House for second thought but is also a guardian
of a State’s rights as a House of correction.
● Given the prevailing political scenario in the country, a careful appraisal of the
functions of the Rajya Sabha in strengthening the fundamentals of our
parliamentary democracy becomes even more necessary.

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Rajya Sabha still remains relevant because-
● Upholding and protecting India’s Federal polity- Rajya Sabha giving representation
to state and Union territories promotes the voice of federal India and thus ensures
power sharing between centre and states.
● Permanent Body: Unlike the Lok Sabha, the Rajya Sabha is not subject to dissolution
but one-third of its members retire after every second year. This ensures
continuity and also brings about a fusion of new and old in the House
● Review and Revaluation Role: Rajya Sabha helps in a deeper review of laws, as
it complements the first chamber in securing greater executive accountability. It
checks hasty, defective and ill-considered legislation made by the Lok Sabha by
making provision of revision and thought.
● House of Checks and Balances: Since the ‘Lok Sabha’ decisions may go in favor of the
populist sentiment and force the members to go contrary to the best judgment, the
Rajya Sabha keeps a check and balance on it.
● Experts participation: Twelve members are nominated to the Rajya Sabha by the
President of India. This feature of the Rajya Sabha makes it even more democratic
and participatory as eminent people making significant contributions to
society, make their way to the highest echelons of Indian Politics.
● Deliberative body- Rajya sabha becomes the body of deliberations based on heated
public issues which affect the people all over India. Ex: Rajya Sabha discussions
during COVID-19.

Why Rajya Sabha is becoming irrelevant-

● Not a representative body- The 2003 amendment to RPA 1951 has done away with
the domicile requirement for the election to the Rajya Sabha. This goes against the
mandate of representation of states in Rajya Sabha.
● Low attendance- Nominated members rarely participate in the proceedings of the
house thus bringing low value to the debate.

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 ● Delaying key legislations- Rajya Sabha being a revisionary chamber has been used
by the opposition to delay and stall key legislations in the past. Ex: passage of Lokpal
bill.
● Frequent disruptions – Due to frequent disruptions in Rajya Sabha , the relevance
and value for parliamentary proceedings is falling down.
● Bypassing Rajya Sabha- Certain mechanisms such as money bill bypasses the much
needed Rajya Sabha scrutiny. Such mechanisms are increasingly being used by the
executive of the day. Ex: Aadhar act passed as a money bill.
● Compensatory House- People who are not mass leaders often go for Rajya Sabha
membership for the fear of not winning Lok Sabha elections, undermining
democratic principles
● Joint sitting- Since the Lok Sabha has a larger membership in a joint
sitting generally the will of the Lok Sabha prevails over Rajya Sabha. Thus, defeating
the purpose of a joint sitting.

Way forward:
● Representation: A federal arrangement can be devised to enable equal representation
for each state.
● Election: Rajya Sabha members can be directly elected by the citizens of a state. This
would reduce cronyism and patronage appointments.
● Use of technology: Make Bio metric attendance compulsory, and pay and
allowances proportionate to attendance in order to address low attendance.
● Parliament (Enhancement of Productivity) Bill, 2017: The bill seeks for
establishment of an effective system to prevent and address the decline in
productivity of Parliament due to disruptions of sittings, by means of:
o Legal framework to fix the minimum number of days (100 days as recommended
by National Commission to review the working of the Constitution i.e. NCRWC) in a
year.

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 o Introduction of special session in addition to the existing three sessions.
o Compensation for the hours unutilised due to disruptions.
● Improve Nomination: Better procedure of nomination to improve the quality of
discussion in the House can be adopted.
● Rajya Sabha despite certain limitations has remained a vanguard for political and
social values, a melting pot of culture and diversity and over all, a relentless
flag-bearer of sovereign, socialist, secular, democratic republic called India.

Separation of powers

Definition:
● Separation of powers refers to the division of government responsibilities into
distinct branches to limit any one branch from exercising the core functions of
another. The intent is to prevent the concentration of power and provide for checks
and balances.

PYQ (2019)
Do you think that constitution of India does not accept principle of strict separation of
powers rather it is based on the principle of ‘checks and balance’?

PYQ (2015)
Resorting to ordinances has always raised concern on violation of the spirit of
separation of powers doctrine. While noting the rationales justifying the power to
promulgate ordinances, analyse whether the decisions of the Supreme Court on the
issue have further facilitated resorting to this power. Should the power to promulgate
the ordinances be repealed?

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Articles
1. Art 50- Separation of executive from judiciary.
2. Art 74 & 163- restricts courts from enquiring into advice tendered by CoM to pres
and gov.
3. Art 121 and 211- restricts parliament and state legislature from discussing
judicial conduct except on a substantive motion.
4. Art 122 and 212- restricts courts from questioning validity of proceedings in
parliament and state legislature.
● Comparison:
▪ USA- Strict separation of powers
▪ India- More checks and balances(art 13, 32,21) . Both
functional overlaps and personnel overlaps

Functional overlaps(Executive and legislature)

1. Ordinance making power (art 123)- Krishna Kumar Singh Case 2017: The Supreme
Court held that the authority to issue ordinances is not an absolute entrustment,
but is “conditional upon satisfaction that circumstances exist rendering it necessary to
take immediate action”. It further stated that the re-promulgation of ordinances is a
fraud on the Constitution and a subversion of democratic legislative processes.
Ordinance overreach: The re-promulgation represents an effort to overreach the
legislative process which is the primary source of law-making in a parliamentary
democracy. Leads to ordinance Raj which is undemocratic.
2. Delegated legislation -It refers to the executive government assuming vast
legislative powers through a wide legislation and framing rules which endow it
with wide powers.
3. Constitutional objectivity- Justice Chandrachud in NCT vs UOI case, 2018
mentioned the term “constitutional objectivity” as the key to checks and balances

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 between the legislature and executive. Both stay in allotted spheres as
constitutional trust is based on checks and balance.
4. Authority to make rules for regulating their respective procedure and conduct of
business subject to the provisions of this Constitution.
5. MPLADS – Seeks to provide a mechanism for the Members of Parliament to
recommend works of developmental nature for creation of durable community
assets and for provision of basic facilities including community infrastructure, based
on locally felt needs. Under this scheme, legislatures play the role of executive by
sanctioning projects etc. SC upheld MPLADs as constitutional as there is no strict
separation of powers in India.

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 Functional overlaps(Judiciary and executive)

1. Judicial overreach – Judicial overreach is when the judiciary starts interfering with
the proper functioning of the legislative or executive organs of the government,
i.e., the judiciary crosses its own function and enter the executive and legislative
functions. Ex: highway liquor ban
2. Judicial challenge to executive actions- Executive actions can be challenged in the
courts on the grounds of it being arbitrary and against the letter and spirit of the
Constitution. Ex: Bulldozer action for encroachment.
3. Making appointments to the office of Chief Justice and other judges
4. Powers to grant pardons, reprieve, respite or remission of punishments or
sentence of any person convicted of any offence.
5. The tribunals and other quasi-judicial bodies which are a part of the executive
also discharge judicial functions.
6. Under Article 142, the Supreme Court functions as an Executive in order to bring
about the complete justice.

Functional overlaps(Judiciary and legislature)

1. Impeachment and the removal of the judges
2. Power to amend laws declared ultra vires by the Court and revalidating it.
3. In case of breach of its privilege and it can punish the person concerned.
4. Judicial Activism and guidelines- Judicial activism signifies the proactive role of the
Judiciary in protecting the rights of citizens. Here, Judiciary can not only declare any
legislative or executive action as unconstitutional, but also come up with certain
guidelines for the executive to follow to uphold the rights of the people. Ex: Vishakha
guidelines, Prakash Singh judgement, DK Basu judgement.
5. Judicial review, i.e. the power to review executive action to determine if it
violates the Constitution.

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 6. Unamendability of Constitution under basic structure.

Why is Functional Overlapping an Issue?

Constitutional Provisions:

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Checks and balance
● The doctrine aims to prevent concentration of power or misuse or abuse of
power by an individual or a group and guards citizens against arbitrary and
tyrannical powers of the State. Provisions of Checks & Balance in Indian
constitution:
● The power of the Judiciary to exercise judicial review (Article 13) over
legislative and executive actions.
● The Judiciary is bound by the procedure established by law (Article 21) in
adjudication on a question of law.
● Appointment of Judges by the Executive head and removal of judges on the
basis of a resolution passed by the Parliament.
● Parliamentary form of Government where the executive is responsible to the
legislature.
● Each branch is supreme in its own domain but exerts limitation on other
branches through the powers given.
● Article 75- executive accountable to the parliament (Legislature)
● Article 111- President Veto power (Executive) for bills passed by the legislature
● Article 368- Application of amendment of the constitution by the parliament.
● Article 13, 32- Judicial review of laws passed by the parliament.
● Article 142- The power to do Complete justice by the judiciary.
● Article 136- Special leave petition.

Ordinance issue-
● The ordinance (Article 123) was originally conceived as an emergency provision.
However, in recent times the frequent use of ordinance route has led to the
undermining the role of the legislature by executive and the doctrine of Separation of
powers.

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 Concerns being raised-
● Ordinance raj: This practice becomes unacceptable when it degenerates into an
“ordinance raj”, where ordinances are seldom brought before the legislature but are
re-issued again and again, violating the spirit of the Constitution.
● Ordinance is an undemocratic route to law-making, which is the job of the
legislature. Therefore, any executive attempt at law-making is uncalled for.
● Fraud on the Constitution: Re-promulgation of ordinances is a fraud (DC Wadhwa
Judgement) on the Constitution and a subversion of the democratic legislative
processes.
● Ordinance overreach: The raison d’être for this dictum is that re-promulgation
represents an effort to overreach the legislative process which is the primary source of
law-making in a parliamentary democracy.
● State following ordinance precedent- For example, in 2020, Kerala issued 81
ordinances, while Karnataka issued 24 and Maharashtra 21.

Judicial pronouncements regarding ordinances-

● RC Cooper Case 1970: The Supreme Court held that the President’s decision to
promulgate ordinance could be challenged on the grounds that ‘immediate
action’ was not required, and the ordinance had been issued primarily to bypass
debate and discussion in the legislature.
● DC Wadhwa Case 1987: The Supreme court held that the legislative power of the
executive to promulgate ordinances is to be used in exceptional circumstances
and not as a substitute for the law-making power of the legislature.
● Krishna Kumar Singh Case 2017: The Supreme Court held that the authority to issue
ordinances is not an absolute entrustment, but is “conditional upon satisfaction
that circumstances exist rendering it necessary to take immediate action”. It further

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 stated that the re-promulgation of ordinances is a fraud on the Constitution and a
subversion of democratic legislative processes.

Judicial overreach

● Article 142 of the Indian constitution provides the power to do ‘Complete Justice’ in
certain cases to the judiciary. This power has led to the Judiciary being active in taking
up important issues going on which are necessary to be dealt with in a time bound
manner. However, it also leads to Judiciary overstepping the Separation of powers and
often overreaching in spheres of Executive and Legislative domains.

Why does judicial overreach occur?

● Excessive powers with Judiciary- Judiciary as the primary organ of checks and
balance is given excessive power to scrutinize any law based on its Constitutional
validity and can strike down the laws and executive actions violating the same.
● Public interest litigations- The PILs have become an instrument of promoting the
public interest, and in the name of the same it gives the Judiciary wide powers to
encroach upon executive and legislative functions. CJI termed it as ‘Personal
Interest Litigation’
● Ineffective functioning of other organs- Executive and the legislature is often not
perceptive of the needs of the times and the people. It works on a top down approach
of making and implementing laws, which often needs to be changed by the
Judiciary.

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Concerns-
● Undermines doctrine of separation of power- Article 50 provides for separation of
powers between executive and judiciary. Instances of Judicial overreach undermines
this constitutional principle. Ex: SC highway liquor ban
● Limited understanding of legislative requirements– The legislature and executive
has a wider view about issues which concern the public and Nation at large. Judiciary
sees it only from a legal and Constitutional point of view which limits the
understanding. Ex: Cancelling of coal blocks allocations and spectrum allocations
resulted in poor health of the financial institutions
● Lack of electoral accountability to people- The judiciary is not elected by the people
thus it does not hold any accountability towards the same for their decisions. The
executive and members of the legislatures are accountable as they are elected directly
by the people.
● Makes legislative process half hearted and futile- Judicial overreach increases
uncertainty as it creates a concern that laws passed and implemented might be
altered or struck down by the judiciary Ex: Cancellation of telecom licence and AGR
issue.
● Knee jerk reaction without seeing the bigger picture- Judiciary often takes actions
based on an issue based on a knee jerk measure rather than looking at its long term
impacts or the deeper underlying causes. Ex: In Shyam Narayan Chouksey vs Union
of India, SC made it mandatory for cinema halls to play the national anthem.

Conclusion
● The Judiciary must exercise Judicial restraint while using its powers under the Article
142 of the Constitution of India. Law making is the exclusive function of the
legislature while the executive is responsible for its implementation. Judiciary must
not overstep its duty of interpreting laws in a constitutional light while performing its

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 duty. This will lead to harmonious functioning of all three organs of the
government.

Parliament

Context:
● The Indian constitution has provided for a Parliamentary System of Government
where the executive is responsible to the legislature. It is important to study what
Parliamentary system means, its features, and its pros and cons

Definition
● A parliamentary democracy is a system of government in which citizens elect
representatives to a legislative parliament to make the necessary laws and decisions
for the country. This parliament directly represents the people.

Definition:
A parliamentary form of government is the government where the parliament is the
supreme law making body and the executive is responsible to the legislature which makes it
known as a ‘Responsible government’. It is also known as the Cabinet form of government,
as the cabinet is the highest executive body taking real decisions .

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 Constitutional provisions for a Parliamentary system of government-

Article 79: There shall be a parliament for the Union which shall consist of the President
and the two houses respectively council of states and the house of people.

Article 74: There shall be a Council of Ministers headed by the Prime Minister to aid and
advice the president.
Article 163: There shall be a Council of Ministers headed by the Chief Minister to aid and
advise governors in exercising their functions.

Article 75: Ministers are collectively responsible to parliament in general and to Lok Sabha
in particular.
Article 164:Chief Minister is appointed by the Governor and further appoints the Council of
Ministers on the advice of the Chief Minister. They hold the office during the pleasure of the
Governor.
Article 168: There shall be legislature in every state and it shall consist of the governor. It
can be both unicameral and bicameral.

Article 85: President from time to time summons each house of the parliament, but the
maximum gap between the sessions can be six months. President can also prorogue or
dissolve the house.

Features of a parliamentary form of government-

1. De Jure and De Facto executive: The President is the nominal executive (de jure
executive or titular executive) while the Prime Minister is the real executive (de facto
executive)

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 2. Majority Party Rule: The political party which secures majority seats in the Lok Sabha
forms the government
3. Collective Responsibility: The ministers are collectively responsible to the Parliament
in general and to the Lok Sabha in particular (Article 75)
4. Double Membership: The ministers are members of both the legislature and the
executive
5. The leadership of the Prime Minister: The Prime Minister plays the leadership role in
this system of government
6. Dissolution of the Lower House: The lower house of the Parliament (Lok Sabha) can
be dissolved by the President on the recommendation of the Prime Minister

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 Parliamentary form of government vs Presidential form of government

Why did India choose a parliamentary form of government?

● Better coordination between the executive and the legislature: The executive being
a part of the legislature, enjoys the support of the majority of the legislature thus
makes law making and passing more easier and streamlined.
● Checks and balance- The checks and balance in the form of parliamentary debates,
question hours, parliamentary committees etc. increases the accountability of the
government which makes it more effective.
● Diverse representation- India being a pluralistic and diverse society demands an
institution which makes way for a diverse representation of all groups to the highest
level of authority.
● Multi party governance- In India, elections and government formation is based on a
multi-party system which makes way for the participation of various parties and often
lead to coalition governments. This becomes more suitable in a parliamentary system.
● Prevents authoritarianism: Instruments of control such as No confidence motion,
censure motion etc. maintains checks and balance thus ensuring that authoritarianism
is prevented. Also, unlike the presidential system, power is not concentrated in one
hand thus makes way for division of powers.
● Responsible government: The members of the legislature can ask questions and
discuss matters of public interest and put pressure on the government. The parliament
can check the activities of the executive and censure the executive for any misses.

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Issues with parliamentary form of government:

● Frequent deadlocks- The parliamentary model observes frequent deadlocks of

ideology, goals and methods which lead to delays in law making and law
implementation.

● Populist governments- Because the parliamentary system is based on the majority

power, the governments often indulge in populism to get hold of majority support to
fulfil their agenda.
● Erodes meritocracy- The parliamentary system makes a common man worthy of
becoming a minister or even a prime minister. It is often said that this erodes the
requirement of specialisation and expertise and promotes a government of generalists
and mediocracy.
● No inter party democracy- Through instruments such as the whip, parliamentary
voting rules etc. the higher echelons of the party impose their will over the members
thus hampering the practice of inter party democracy.
● Powerful executive and threats of majoritarianism- If the executive enjoys majority
support, it can do whatever it wants thus leads to a rule with whims and fancies.

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 Merits of adopting a Presidential form of Government:

● Political party democracy- The parties in a Presidential system are more careful in
selecting a candidate to represent them. This makes the parties more democratic as
they have regular elections, discussions etc. Ex: Party Primaries in USA.
● Separation of powers and Collective Responsibility- A Presidential system is based
on strict separation of powers of various branches of the government which ensures
that there is no concentration of powers. Also, due to separation of powers, the
legislature can make laws more effectively without the need to hold government
accountable again and again.
● Meritocracy- The appointment to the cabinet is based on merit rather than political
winnability. This makes the administration more meritorious in dealing with several
issues.
● Faster decision making- As there is unity of control in Presidential system, the
decisions are taken in a faster way without any parliamentary delays.
● Stability – Presidential governments tend to be more stable than parliamentary
systems as there are instances such as defections, no confidence in the Parliamentary
system.
● Less populist- Presidential government doesn’t need to look for popular support
again and again thus it is able to take tough decisions effectively without the fear of
popular support.

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 Demerits of a Presidential system:

● Authoritarian tendencies- Since the President has the supreme power, there is much
higher risk of abuse of power leading to authoritarian tendencies.
● Executive-Legislature conflicts- The conflicts between legislature as well as the
executive may lead to a deadlock and stall progress on laws being made. Ex: Gun
control legislation in the Senate of USA
● Lack of accountability- There is less accountability of the executive as parliamentary
checks and balances are not present over the power of the executive.
● Lack of continuity in policies- As the President changes, so does the policies of the
previous administration are discontinued and new policies are implemented.
● Risk of Majoritarianism- There can be a risk of majoritarianism as the views of the
individual or the largest voting group can override the views of large minorities .
● Electoral awareness- The masses voting in India are closer to their local candidate
rather than a single National candidate, thus it makes electing local candidates easier
for them.
● Two party rule- A Presidential system often leads to a two party rule where candidates
from two parties fight in the election. India being a multi-party polity may not be well
suited for this change.

Conclusion
● Rather than shifting to a new Presidential system of governance, it makes more sense
to continue the existing Parliamentary system with the necessary reforms and efforts
which make it stronger, more effective, and better suitable to the demands of the
changing times.

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 Issues faced by Indian legislature:

● The decline in the number of sittings: The 16th Lok Sabha functioned for a total
number of 1,615 hours, 20% more than the 15th Lok Sabha. However, this is 40%
less than the average of all full-term Lok Sabha (2,689 hours).
● Discipline and decorum: Statistics from the last five years which reveal that nearly
60% of the time allotted for the hour has been lost due to disruptions. Ex: The passage
of three farm laws in Rajya Sabha and discussions related to abrogation of Art 370
showed us the glimpses of lack of discipline.
● Declining quality of parliamentary debates: Parliament instead of debating national
issues is becoming a forum of political debates. Ex: The last year sessions saw
political discussion for the acts of comedians and actors.
● The low representation of women: Although women’s representation has steadily
increased in the Lok Sabha, only 5% of the House in the first-ever election to 14% in
the 17th Lok Sabha, this is still unequal when compared to democracies like the U.S.
that has 32%.
● Inadequate Discussion: Bills are being passed with no/least discussion and by voice
vote amidst confusion in the House. Ex: Farm laws 2020 passed by voice vote
ignoring the demand of division vote.
● Reduced Scrutiny by Parliamentary Committees: In the 16th Lok Sabha, 25% of
the Bills introduced were referred to Committees, much lower than 71% and 60%
in the 15th and 14th Lok Sabha respectively
● Legislation through Ordinances: there has been an overuse of a frequent and large
number of Ordinances even when there is no necessity or unusual circumstances. Ex:
The Aadhaar and Other laws (Amendment) 2019 ordinance.
● Codifying Parliamentary Privileges: Parliamentary privileges have not been codified
leading to scepticism and concern over their misuse.

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 ● High Cost and loss to public exchequer: Certain legislations when delayed lead to
high costs to the public exchequer and also bear a huge cost to society. Ex: Official
estimates suggest the cost of one session to be Rs 2 crore. As per PRS India 71% of
the sessions were disrupted causing burden on exchequer.
● Falling productivity of houses- From June 2014, to the last day of the last session of
16th Lok Sabha - the Rajya Sabha held 18 sessions and 329 sittings till date and
passed 154 Bills — which comes to less than one Bill in two sittings.
● Over increasing control over debates- The parliamentary debates are essential part
of a democracy, however increasing control over what can one say and what not may
stifle the debate culture in Indian system. Ex: Recent exhaustive list of unparliamentary
words.

Parliamentary reforms needed:

● Fix a minimum number of settings: 120 for Lok Sabha, and 100 for Rajya Sabha as
was recommended by the NCRWC.
● Codifying Parliamentary Privileges: The privileges should not be allowed to be used
in such a way as to revoke themselves and become rights against the people
● Departmental Committees and Improving Accountability: Proper deliberations,
scrutiny and informed debates. (NCRWC)
● Planning Legislation and improving its Quality: By streamlining the functions of the
Parliamentary and Legal Affairs Committee, making greater use of the Law
Commission, etc
● Improving information supply: Members of the Parliament must remain up to date
with the latest information regarding developments in all areas of parliamentary
concern (NCRWC)

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 ● Reducing expenditure: There is a need to reduce parliamentary spending under
various heads. The strictest self-control is necessary. Ex: Rationalizing Centrally
sponsored schemes.
● Improving the quality of Members: Members of important parliamentary
committees need to lay down a strict code of conduct for themselves. (NCRWC)
● Building a better image of Parliament: Parliament must have access to public
opinion and the public must have access to Parliament.
● Training of Members: Institutionalized arrangements are necessary to provide the
much needed professional training and orientation to every newly elected/nominated
Member.
● Virtual meetings: crucial legislative work could continue in crisis like COVID- 19
pandemic by leveraging technology for virtual meetings as Courts across the country
are doing.
● Reforming anti defection law- To arrest frequent government changes through
wholesale defection. The anti-defection law must be applicable on only the matters
where trust in the government needs to be upheld.
● Debate and deliberations- Former CJI NV Ramana argued that the Laws should be
made after thorough deliberations and debates incorporating the needs and
aspirations of the society. So that litigation can be minimized.
● Mandatory recording of votes – All the votes must be recorded mandatorily and the
practice of voice vote should be done away with. This will improve the
accountability of the members of the parliament as voters will know how they voted
on important issues.

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 Falling productivity

Reasons for low productivity:

● Political Tussle between the government and opposition leads to disturbance in

function and hence decreases productivity.
● Lack of consent: Passing laws without taking opposition into confidence.
● Backdoor entry in Rajya Sabha: Rajya sabha has become a backdoor entry for those
who have not been elected in the election.
● Criminalization of politics: Ex: ADR report declared that about 24% of the sitting
Rajya Sabha members have declared criminal cases against themselves.
● Misuse of Money Bil: Government often passes bill by tagging them as Money Bill
which cannot be rejected by Rajya Sabha. It is an indirect veto with Lok Sabha. Ex-
Aadhaar and Other Laws (Amendment) Act 2019 was passed as Money bill.
● Lack of time available to the Members of Parliament to raise certain issues.

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 ● Unresponsive attitude of the government and retaliatory posture by the treasury
benches.
● Absence of prompt action against the disrupting Members.

Way Forward:

● Fix a minimum number of settings: 120 for Lok Sabha, and 100 for Rajya Sabha as
was recommended by the NCRWC.
● Departmental Committees and Improving Accountability: Proper deliberations,
scrutiny and informed debates. (NCRWC)
● Training of Members: Institutionalized arrangements are necessary to provide the
much needed professional training and orientation to every newly elected/nominated
Member.
● Enforcement of a code of conduct for MPs and MLAs: There must be strict adherence
to the code of conduct for MPs and MLAs so that disruption of proceedings ceases to
be an option.
● Reforming anti defection law- To arrest frequent government changes through
wholesale defection. The anti-defection law must be applicable on only the matters
where trust in the government needs to be upheld.
● Enable “Public Interest Legislation”: Create a system that will enable MPs to hear
the viewpoints of affected citizens and initiate appropriate policy responses.
● Developing an Index: Parliamentary disruption index should be created as a
measure to monitor disruptions in legislatures and check indiscipline. It would also
lead to the availability of more time for debate and discussion on issues before the
House.
● Improving information supply: Members of the Parliament must remain up to
date with the latest information regarding developments in all areas of
parliamentary concern (NCRWC)

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 ● Accord private member bills more space and respect: This will allow a variety of
ideas to bubble up from the grassroots.Governments will be able to listen to
non-mainstream points of view and provide official support whenever appropriate.

Parliamentary privileges :

Definition:
Article 105 of the Indian constitution defines parliamentary privileges. Parliamentary
privileges are special rights, immunities and exemptions enjoyed by the two Houses of
Parliament, their committees and their members.

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 ● Source of Privileges:
○ Parliament has not made any special law to exhaustively codify all the
privileges. They are rather based on five sources:
o Constitutional provisions
o Various laws made by Parliament
o Rules of both the Houses
o Parliamentary conventions
o Judicial interpretations

The Indian parliamentary privileges are categorised into:

1. Collective Privileges – Those privileges which are enjoyed by the Indian Parliament as
a whole. Ex: The parliament is entitled to punish the outsiders or the members for
any breach of privilege.
2. Individual Privileges – Those privileges which are secured to the members of the
parliament on an individual level. Ex: No arrest of the member of the parliament can
take place during its session.

Issues with parliamentary privileges:

● Invades on constitutionalism: Legislatures deciding their own privileges. Such wide
power is against constitutionalism.
● Increased misuse: In 2017, the Karnataka assembly Speaker ordered the
imprisonment of two journalists for a year for breach of privileges.
● Against rule of law: Impinges on the freedom of speech and expression and takes extra
legal recourse.
● Affecting equality: Giving special rights and immunities to parliamentarians is
contemplated as opposing and undermining the equality.
● Immunity from court: The most controversial aspect of parliamentary privilege is the
lack of power and jurisdiction of courts to review parliamentary privileges.

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● Global experience: Today even the British Parliament has broken away from its
tradition of treating criticism as infringement to parliamentary privileges.

Way forward:
The Supreme Court in the State of Kerala Vs. K. Ajith and Others (2021), observed,
that “privileges and immunities are not gateways to immunity from the general law
of the land.
NCRWC- Privileges should be codified and defined for free functioning of legislatures.
Global examples such as the UK, Australia also codified privileges. A balance between
Fundamental Right to Free Expression and parliamentary privileges must be ensured.

Anti-Defection law:

Context:
The basic principle of a representative democracy lies in ideological coherence. The basic
reason why Mahatma Gandhi did not join any political party was because he believed in the
ideology of Stateless Society. Now imagine, Gandhi ji joining a political party just to get
elected to India’s first government, and leaving the party later saying that he does not
believe in party politics. This would be in contravention of basic democratic principles. So,
defecting from one’s political party amounts to serious breach of trust. Not just of the
political party, but of the people as well.

PYQ:

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 The role of individual MPs (Members of Parliament) has diminished over the years and as a
result healthy constructive debates on policy issues are not usually witnessed. How far can
this be attributed to the anti-defection law, which was legislated but with a different
intention? (2013)

Background:
The anti-defection law was introduced in 1985, through the 52nd Amendment Act of 1985.
It was inserted in the Tenth Schedule of the Indian Constitution and is popularly known
as Anti Defection Act. It lays down the process of disqualification on grounds of
defection. The goal was to prevent the legislators from changing their political affiliations
during their tenure in office. The presiding officer is the final authority to decide on the
question of defection. However the decision of the presiding officer is subject to judicial
review.

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 ■ Facts about defection
● Added by (Fifty second Amendment) Act 1985
■ Grounds of disqualification are specified in Paragraph 2 of the Tenth
Schedule
■ It was a response to the toppling of multiple state governments by
party-hopping MLAs after the general elections of 1967.

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 ■ Grounds for disqualification
● If an elected member voluntarily gives up his membership
of a political party.
● If he votes or abstains from voting in such House contrary to
any direction issued by his political party or anyone
authorized to do so, without obtaining prior permission.
○ As a pre-condition for his disqualification, his
abstention from voting should not be condoned by
his party or the authorized person within 15 days of
such incident.
● If any independently elected member joins any political
party.
● If any nominated member joins any political party after the
expiry of six months.
○ Exemptions-
■ Merger- The law enables a party to merge with another party if at
least two-thirds of the legislators of the party are in favour of such
a merger.
■ Implication of Anti-Defection Law:
● Breach of Public Trust
● It can lead to instability and frequent mid-term election
● Destroys the institutional dignity of the political party
● 1967-68- 438 defections happened
● 1969- YB Chavan Committee appointed
○ It recognized the issue, but did not give a solution
■ 91st Amendment Act 2003
● 1/3rd norm removed

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 ● Size of Council of Ministers limited to 15% of Lower House
strength
○ Issues with Defection:
■ Affects the independence of the MPs: It violates their freedom of
speech and they can't take any independent stand over issues.
■ Injustice to the Constituencies, ie. the people who have elected
them in the elections: Being the people’s representatives they should
be allowed to boldly air their grievances and speak up for their
constituencies’ requirements.
■ Limited deliberations: They have indeed reduced the quality of
Parliamentary debates/deliberations, as all energies are utilized in
managing defections.
■ Misuse of law by the speaker: False dissent by the speaker on MPAs as
seen in the cases of Arunachal Pradesh(SC overturned) and
Uttarakhand.
■ Role of MP’s and MLA’s are undermined: The legislators are tasked
with twin tasks of acting as agents of people and participating in
framing legislations. Individual identity gets limited to the number of
MLAs defecting.
■ Emerging loopholes: Maharashtra defection- two factions of the same
party emerged.
■ Undermines Electoral Democracy & Betrays Public Mandate:
Members not chosen by the public can become ministers.
■ Promotes Corruption through Horse Trading: With help of defectors,
any majority government can be converted into a minority government
or toppled. Ex: Resort politics.

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 ■ Anti-Defection Law currently applies to every vote, and even in Rajya
Sabha and Legislative Councils of states, where the government’s
stability is not at stake
■ Defections have continued even after the law was passed in 1985
■ In its 170th report, the Law Commission of India (1999) had observed
that the country’s experience with the Tenth Schedule had not been a
happy one.
■ Presiding officers have not been impartial when deciding cases of
defection
● While functioning under the Tenth Schedule, the presiding
officer acts as a tribunal and exercises judicial power
● In several instances it has been seen that the presiding officers
do not disqualify legislators or delay the decisions regarding
disqualifications, therefore putting their allegiance into
question.
■ Non adherence to Standard Operating Procedure (SOP):The Speaker
of Uttarakhand Assembly decided on a case of defection while a notice
of resolution for his removal from the office is pending. The Supreme
Court had to intervene and observed that the Speaker should refrain in
such cases.
■ The Anti-Defection Law is silent on the maximum time within which a
decision must be taken on questions of disqualification.
■ International Experience- Most advanced democracies do not
disqualify legislators for defecting against their parties. Such members
may be subject to internal party discipline including expulsion from the
party. Except Bangladesh, Guyana, Pakistan, Sierra Leone, and
Zimbabwe.

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 ○ Way Forward
■ Dinesh Goswami Committee on Electoral Reforms (1990) had
recommended that disqualification on grounds of defection should be
limited to:
● (i) an elected member voluntarily giving up membership of his
political party, and
● (ii) voting contrary to the party whip only in respect of vote of
confidence/no-confidence, money bill, or motion of vote of
thanks to the President’s address
■ Dinesh Goswami Committee- The issue of disqualification should be
decided by the President/ Governor on the advice of the Election
Commission
■ Law Commission (1999) had recommended repealing the provision
exempting certain mergers from the Tenth Schedule.
● Political parties should limit the issuance of whips to instances
only when the government is in danger(trust vote). Also,
mergers should not be exempted from disqualification.
■ Law Commission (2015) recommended that the power to decide on
questions of disqualification on the ground of defection should be
vested with the President or the Governor, who should act on the
advice of the Election Commission of India (ECI).
■ The Supreme Court (2020) has observed that while acting as a
tribunal under the Tenth Schedule, the speaker is bound to decide
disqualification petitions within a reasonable period (within 3
months of being filed)
■ Halim committee- Define the phrase, ‘Voluntary giving up
membership of a political party’ comprehensively.

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 ■ Election Commission Constitution Review Commission
(2002):Decisions under the Tenth Schedule should be made by the
President/ Governor on the binding advice of the Election
Commission.
■ NCRWC: The power of disqualification of the legislators on ground of
defection should lie with the Election commission and not the
speaker.
■ NCRWC- The commission further said that mergers shouldn’t be
exempted from defection. Also, the defectors should be barred from
holding any public office in the future.
■ SC in Keisham Meghachandra Case- The presiding officer must decide
a question of defection within 3 months. Also, an independent
tribunal headed by a retired SC judge for defection cases can be
established.

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 Lower participation of women in Parliament

Context-
India ranks 153 of 190 nations as per Inter Parliamentary Union (IPU) with an average of
15% women in the lower house of parliament. Even nations like Pakistan have 20% of
women representation in the lower house. Although the 17th Lok Sabha has the highest
number of 78 women members, they account only for 14% of the total number.

Reasons for Low Female Representation in Indian Parliament:

● Lack of political will: 1/3rd reservation to women not implemented in legislatures.

● Patriarchy: Although Women hold the power but they do not experience it as the
decisions are influenced by male partners or other family members. This is much
visible in Panchayati in form of creation of Sarpanch pati.
● Social Causes: People still believe that women are not equal to men and it is prevalent in
the top political class. Recently, a female MLA in Delhi was criticised in the session for
working late night in the office.
● Lack of literacy and awareness: Literacy among women is 71.5% as compared to men
( 84.4%). This restricts females’ awareness about legislative processes
● Work-life balance: Women face double burden of work, as the expectations from them
do not reduce even when they are working.

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 ● Lack of Financial support: Socio-cultural norms never let women earn significantly
and the modern world that confined women to pink collared jobs ensures they remain
financially dependent.

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 Importance of female representation in the Parliament

● Efficiency: Germany, New Zealand, and Taiwan were some of the few countries
which effectively controlled the pandemic quickly. The common thing between
them is, all are governed by women as state heads .
● Women-centric approach: The female legislators or state heads are observed to be
more women-centric. Ex: Chhavi Rajawat Sarpanch of SODA village.

● The contrast between suffrage and political representation: Women vote equally as
men. However, since 1963, India has had only 16 female chief ministers.
● Lack of Gender sensitive policies

Way forward-
1. Zipper system is a practice followed in countries like Rwanda where every third seat
in the party is reserved for women. Such changes can be adopted for better results.
2. Deconstruct the stereotype in women of confining them to family and household
tasks.
3. Passage of reservation of one-third of seats is of prime importance to the current
situation.

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 4. Party level actions- Ex: TMC reserved one third candidates in WB election as women.

Parliamentary committees

Definition:
Parliamentary Committee is a panel of MPs that works for a specific task assigned to them
It is appointed or elected by the House or nominated by the Speaker/Chairman and
works under the direction of the Speaker/chairman and it presents its report to the
House or to the Speaker/chairman.
● Ex: Public accounts committee, estimates committee.

● Constitutional Recognition: The authority of parliamentary committees is derived

from Article 105 and Article 118.
o Article 105 deals with the privileges of MPs.
o Article 118 gives Parliament authority to make rules to regulate its
procedure and conduct of business.

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 Relevance of Parliamentary Committees

1. Expert opinions - Parliamentary committees help MPs seek expert opinions and
understand the issue thoroughly before passing any law related to the same. Ex:
Committee on IT suggestions for IT rules 2021.
2. Cross party participation- The parliamentary committees act as a mini-parliament,
as they have MPs representing different parties as members. This brings members
across party lines together and thus creates a depoliticized mechanism to work upon
the issues.
3. Detailed scrutiny- The bills referred to these committees, are examined closely and
inputs are sought from various external stakeholders, including the public. Ex: Public
opinion on the draft EIA 2020.
4. Executive accountability- The reports of parliamentary committees uphold executive
accountability as these committees scrutinise every decision thoroughly. Ex: Public
accounts committee act as a watchdog on the executive.
5. Function throughout the year- The parliamentary committees are not bound by any
time limit such as the parliament is. It can function even on days when the parliament
does not sit.
6. Stakeholder approach – Parliamentary committees uphold the stakeholder approach
in functioning of the parliament as the opinions, feedback of varied stakeholders are
taken into consideration on various contentious issues.

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 Issues with functioning of parliamentary committees:

1. Bills not being referred- The bills being referred to parliamentary committees are
declining, as the executive through its majority passes the laws and skips the
committee phase often. Ex: 70% in 15th Lok Sabha, 29% in 16th Lok Sabha and
only 11% in 17th Lok sabha
2. Inter party tussle- The committees including members across party lines, often
observe the instances of inter party tussle which leads to deadlock in the
functioning of the same.
3. Lack of expert staff- The experts are often not approached or appointed to support
the functioning of the committees.

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 4. Lack of quorum in committees- As the members do not attend the meetings often,
low attendance leads to a lack of quorum.
5. No enforcement mechanism- The reports of the committees are only
recommendatory in nature. Thus, it is upto the executive to enforce the
suggestions of the committees.
6. 1 year lifetime- The committees are appointed for one year at a time. This timeline
is very less to ensure expertise building and proper functioning.

Reforms that can be undertaken:

1. British model- The British model of mandatory scrutiny of all the bills by
parliamentary committees can be implemented.
2. Expert and research staff- The parliamentary committees must be provided with
expert and research staff which can help in detailed and sector specific functioning
of the same.
3. Rules for appointment and functioning- Proper rules can be formulated which
ensures effective functioning and rules based appointments in the same.
4. Consensus building- Building consensus across party lines through code of
conduct to make parliamentary committees mechanisms of non political debates.
5. Increase the term and number of committees- The term of a committee must be
increased from the present 1 year. Also, the number of departmental related
standing committees must be increased to make it available for detailed scrutiny.
6. New committees- NCRWC suggested that new committees such as committee on
National economy, scrutinizing constitutional amendment bills and committee
on legislative planning can be set up.

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 Ramcharyulu panel recommendations:

1. Increase the tenure of Parliamentary committees to 2 years.

2. Formation of a committee hour for proper deliberation and discussion on the
committee reports.
3. Reports of the parliamentary committee must be made public to ensure
accountability of the executive to the public at large.

Conclusion
Parliamentary committees play an important role in efficient functioning of Indian
parliament, thus it becomes crucial that the much needed reforms are undertaken to
make the committees truly uphold the spirit of parliamentary democracy.

Office of speaker

Context:
Since the Indian system of government follows the Westminster Model, the Parliamentary
proceedings of the country are headed by a presiding officer who is called a Speaker. In
other words, the Speaker is responsible for ensuring the smooth functioning of the
House. The Lok Sabha chooses its Speaker through a vote.

PYQ (2020)
“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. (Answer in 150 words)

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Role of speaker
1. Presiding officer- The Speaker presides over the meetings in the House. The
business in the House is conducted by the Speaker, ensuring discipline and
decorum amongst its members.
2. Guards Rights and Privileges- He/she guards the rights and privileges of the
members of the two Houses.
3. Parliamentary procedures-He/she also permits various parliamentary
procedures such as the motion of adjournment, the motion of no-confidence,
the motion of censure, among others.
4. Final interpreter in the house- He is the final interpreter of provisions of a)
constitution of India b) rule of procedure c) parliamentary precedents
within the house.

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 5. Punishing and disqualifying MPs- The Speaker ensures that MPs are punished
for unruly behaviour. A Speaker can also disqualify an MP from the House on
grounds of defection.

6. Adjournment- In the absence of a quorum in the House, he/she adjourns the

House or suspends it.
7. Money bill- He is the sole authority to decide whether a Bill is a Money Bill
or not. His decision is final in this regard.

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 8. Casting vote- A Speaker uses his/her power to vote in order to resolve a
deadlock.
9. Presides over Joint Sitting- The Speaker of the Lok Sabha presides over a
joint sitting of the two Houses of Parliament.
10. Parliamentary committees- Speaker appoints the Chairman of all the
parliamentary committees and supervises their functioning. He himself is
chairman of the Business Advisory committee, the Rules committee and
the General Purpose committee.
11. Indian Parliamentary Group- Besides heading the Lok Sabha, the Speaker is
also the 'ex-officio' President of the Indian Parliamentary Group.

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 Question of speakers neutrality

1. Paradoxical position- Speaker is elected to the house on a party ticket and party
majority appoints him/her in the house. However, after appointment the speaker
is expected to remain neutral and objective.
2. Manufactured defections – Certain cases of defections and speakers' decisions on
the same have raised the question of Speaker’s neutrality in the house.
3. Increased Disruption in Parliament: Partisan conduct of the speaker and his
apathy towards opposition parties’ demands many times leads to constant
disruption of Parliament by the Opposition.
4. Bills passed by voice vote- Bills are often passed by mere voice vote even if there is a
call for division of votes which should be considered as per parliamentary rules of
procedure. Ex: Farm laws 2020

Why should the office of speaker be neutral

1. Supreme interpreter of Constitution in house- Speaker is the final interpreter of

the constitution in house, which means an impartial speaker is necessary to
interpret the constitution objectively.
2. Symbol of Nation’s Freedom: Former PM Jawaharlal Nehru referred to the
Speaker as “the symbol of the nation’s freedom and liberty” thus the office of
the Speaker should be held by persons of “outstanding ability and impartiality”.
3. Guardian of the House: MN Kaul and SL Shakdher referred to the speaker as
the conscience and guardian of the House, thus they must represent it objectively.

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 SC judgements regarding the office of speaker
1. Kihoto Holohan case- SC in this case ruled that the speaker's decision based on
Anti Defection law is not final and can be challenged in court.
2. Indira Nehru Gandhi vs Raj Narain case 1975- the Supreme Court invalidated a
provision of the 39th Amendment Act (1975) which kept the election disputes
involving the Prime Minister and the Speaker of Lok Sabha outside the
jurisdiction of all courts.
3. SC in Keisham Meghachandra Case- The presiding officer must decide a
question of defection within 3 months. Also, an independent tribunal headed
by a retired SC judge for defection cases can be established.

Measures needed
1. UK model of speaker- The parliament of the United Kingdom follows the principle
of ‘Once a speaker always a speaker.’ This means the speaker elected must give
up the membership of the party.
2. Independent tribunal headed by a retired SC judge for defection cases can be
established.
3. Money bill- Following constitutional limitations on the subjects of money bill
while certifying any such bill.
4. Recording votes- The practice of voice votes should be done away with and all the
votes should be recorded. Also, the requests such as division votes must be
heeded to as the rules of procedure also argue.
5. Judicial review- the applicability of judicial review must be extended to the
speaker’s decisions such as that on anti-defection law.
6. Holding office - Any Speaker should be barred from future political office,
except for the post of Vice President or the President, while being given a
pension for life.

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Conclusion
● The Office of the Speaker in India is a living and dynamic institution which deals with
the actual needs and problems of Parliament in the performance of its duties. Thus,
the office must be reformed as per the need of the parliamentary functioning to
uphold the principles of the Constitutions in all its manifestations.

Issue of Money bill being indiscriminately passed-

1. Bypassing Rajya Sabha- Passing important bills as money bills by-pass the role of
Rajya Sabha that is of a revisory chamber of Parliament. Ex: Aadhar act passed as
money bill.
2. Reduces checks and balances- Rajya sabha performs checks and balances over
executive’s authoritarian character by performing debates, discussions and
deliberations over bills being introduced.
3. Neutrality of speaker- Office of Speaker is considered to be neutral in
parliamentary functioning. However, passing bills indiscriminately as money bills
casts aspersions on the neutrality of speaker.
4. No procedure for speaker- There is no proper procedure which is fixed for the
speaker to certify a bill as a money bill. This leads to discretionary powers with the
speaker regarding the same.
5. No accountability for wrong decisions- Article 122 provides immunity against
challenges to the proceedings only on the grounds of procedural irregularities.
A wrong decision under Article 110 i.e. money bill does not come under procedural
irregularities.

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 Role of opposition in Indian system:

Context:
Indian polity is based on a multi-party system. Opposition represents the parties which
are not in power and keep a check on the party in power. Opposition plays a crucial role
in a democracy as it represents the voice of the people and ensures that the party in
power fulfils its commitments to the public as well as National interest at large.

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 Why is opposition important ?

1. Represents the voice of the people- Opposition takes up the issues of the
common people and by asking questions to the government on the same,
promotes the interest of the people. Ex: Questions on COVID vaccination and its
availability.
2. Checks and balance- By scrutinising the work of the party in power, opposition
keeps thorough checks and balance over the government. Ex: Questions on
Demonetization and its outcomes.
3. Presents an alternative model- Opposition represents an alternative model to
governance as compared to the model of the party in power. In United Kingdom,
this alternative model is institutionalized through the mechanisms such as Shadow
Cabinet.
4. Opposition of today, Government of tomorrow- In a democratic system, the
opposition must be prepared and ready with a plan as it might get in power after
the elections.

Issues with opposition in India

1. Lack of Numerical strength- No party in the parliament crosses the threshold
required to fulfil the criteria of a Leader of Opposition. This diminishes the role of
opposition in the Parliament.
2. Ideological divisions- The opposition parties are divided among themselves based
on ideologies and vision. This leads to a fragmented political environment unable
to ensure checks and balances on the party in power.
3. Vigilant opposition- Opposition plays on populism more than vigilant
accountability over the failures of the government in power. This leads to populism
taking over actual public issues in the political discourse. Ex: Former CJI Ramana
asserted that the role of opposition is diminishing.

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 4. Electoral opposition- Electoral opposition is the situation where the parties in
power in the state differ from the party in power at the Union level. This leads to
state-centre tussle on various issues and bottlenecks in service delivery to the
common man. Ex: Kerela approaching SC under article 132 against CAA 2019.
5. Frequent defections- the opposition is further weakened by ‘Defection politics’, as
the opposition leaders are poached and made to defect to the ruling party through
instruments such as ‘Resort politics’.

Measures needed to address the same-

1. Legal reforms: The 10% threshold for the Leader of opposition must be removed and
the numerically largest party in the opposition should have the right to have a leader
recognized as a leader of the opposition by the speaker.
2. Strengthening anti-defection law: Frequent defections must be addressed by
reforming and strengthening anti defection law. Removal of the clause of split in party
is the way to go ahead.
3. Code of ethics- A comprehensive code of ethics must be enforced in the Parliament
which will lead to Opposition recognizing its role seriously and instead of walkouts and
disruptions, will participate in the debates and hold the government accountable.
4. Agenda of the day- As the Parliamentary practice in Canada, some days of the
parliament should be fixed where the opposition fixes the agenda of the day. This will
lead to better functioning of the opposition viz a viz the government.
5. Shadow cabinet system- The Shadow cabinet system of UK can be replicated in India
to improve the system of checks and balances.

Conclusion
● An active opposition is necessary to ensure a vibrant and alive democracy. To improve
the functioning of Indian democracy, constructive engagement between opposition,
the people and the government is required. For this, we can adopt best practices like

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 setting up of Shadow Cabinet of UK which will improve this tripartite participation and
thus ensuring effective functioning of the Parliament, leading to Good Governance in
the country.

Judiciary in India

Context:
The Indian constitution has established an integrated judicial system with the Supreme
Court at the top and the High courts below it. Below the HCs, there is a hierarchy of
subordinate courts. This single system of courts, adopted from the government of India Act
of 1935, enforces both central laws as well as the state laws.

Why is UPSC interested in this topic ?

Judiciary is the vital law-adjudicating organ of the State, and thus any and every issue faced
by it is of vital interest to UPSC. As an aspirant, you should have clear-cut, practicable
solutions to the issues faced by judiciary, a sense of acknowledgement of its achievements,
and its drawbacks too.

2018
How far do you agree with the view that tribunals curtail the jurisdiction of ordinary courts?
In view of the above, discuss the constitutional validity and competency of the tribunals in
India?

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 2018
Whether the Supreme Court Judgment (July 2018) can settle the political tussle between
the Lt.Governor and elected government of Delhi? Examine.

PYQ(2017)
Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments
Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India

PYQ(2013)
‘The Supreme Court of India keeps a check on arbitrary power of the Parliament in
amending the Constitution.’ Discuss critically.

Judicial Pendency and Delay: Reasons:

● Frequent adjournment: The cases suffer from frequent adjournment leading to
longer time taken to dispose them off. According to a Government Panel data(2017),
more than 50% of cases violate the rule of 3 adjournments per case .
● Poor court infrastructure: Out of the total GDP, only 0.09% is spent on court
infrastructure. According to a 2016 report, existing infrastructure could accommodate
only 15,540 out of sanctioned 20,558 judicial officers.
● Special leave petition (Article 136): Special leave petition provided by the Supreme
court leads to high pendency of cases. It comprises 40% of the court’s pendency.
● Government litigation: The government is the single largest litigator in India with
both Centre and the States being responsible for over 46% of the pending cases.
● Working days: Supreme court works on average 188 days despite the rule mandating
a minimum of 225 days. Institutional practices such as summer vacations, Christmas
holidays reflects colonial hangover.

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 ● Inefficient operational management: Administrative posts in Judiciary suffer from
high vacancy and ineffective work culture. There is a need for dedicated posts for
court managers to help improve court operations, optimize case movement and
judicial time .
● Delayed Investigations: The issue of inefficient and unscientific investigations by
the police hampers justice delivery at large.

● Increased right awareness- The awareness about rights of citizens has increased and
so has the awareness about institutional justice delivery. This leads to increased
burden on the judiciary as people approach the judiciary for the issues concerning
them.
● Public interest litigation- PIL’s were introduced as a potent mechanism to ensure that
issues related to common man are taken up by the court and justice is delivered in the
same. However, Courts have often highlighted that frivolous PILs are being registered
to further one’s private interest rather than the larger public interest. This leads to
misuse of judicial power and increases burden on the courts.

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 ● Shortages of judges – 419 out of 1080 Sanctioned judges posts in the 25 High
Courts are vacant on March 1 2021. As of December 19, 2022, out of the sanctioned
strength of 25,042 in district judiciary, there was a vacancy of 5,850 judges(Minister of
Law and justice)The ratio of judges to population is 20 judges/million population
(Law commission recommended 50/million) . Vacancies 19% in SC, 44% in HC and
23% in lower courts as per the reports.
● Inaccessibility and delays: The judicial system is highly exclusionary as the ordinary
citizens find it hard to seek redress, as litigation is expensive and out of reach of the
common man.

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 ● Corruption in the courts: The process of investigating and deciding on corruption
charges has been based on in-court enquiries and judgements. Such cases are kept
confidential which leads to lesser accountability and transparency in the court
procedure

● Criticism on Social media- Social media criticism and campaigns against judiciary as
well as individual judges have become quite common. Recently, Justice Surya Kant
recently highlighted the vicious attacks on judges on social media hamper justice
as judges would be wary of public opinion while giving judgements.

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 ● Delays in taking up important matters- The Supreme Court and High Courts due to
long pendency of cases and procedural difficulties often take long time before listing
important matters. This leads to hampering of justice delivery in matters which are
crucial for the Nation. Ex: Electoral bonds issue, PM Cares fund, Article 370 case.
● Judicial precedents- The judicial precedents are often ignored while deciding on
matters of individual rights. Lower courts continue to ignore SC directions on “bail,
not jail” as the default setting on unproven charges which hampers justice delivery.
● Quid-Pro-Quo cases- Judiciary often suffers from the issue of Quid-pro-Quo
judgements where passing a judgement in favour of government leads to certain
benefits such as post retirement appointments to public offices etc.
● Docket explosion(Delays)- Former Chief Justice of India N V Ramana blamed the
monstrous pendency of cases on non-performance of bureaucracy and enactment of
laws without foresight and clarity and said an alarmingly low number of judges, 20 per
million are unable to improve the dismal scenario.

Broad Recommendations and suggestions regarding judicial issues

1. 120th Law commission: The commission suggested appointment of efficient and

experienced judges as Ad-hoc judges to reduce the vacancies of judges in courts. (Article
128 and Article 224A)
2. Supreme court benches: The hon’ble former Vice President of India Sh. Venkaiah
Naidu recommended establishing regional benches of the supreme court
3. Three-pronged approach as recommended by former Chief Justice of India NV
Ramana:
a. Improving judicial infrastructure through the use of e-platforms and setting up of
more courts.
b. Dispute settlement at pre litigation stage through counselling.
c. Strengthening the existing ADR mechanism

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4. Appoint retired judges: Invoke article 224A to appoint retired judges of High courts in
High courts for a temporary period to clear case pendency. However, the same shall not be
at the cost of the appointment of regular judges.
5. Grouping of cases: Specific types of cases having high pendency shall be identified and
clubbed together for adjudication. Ex: Recently court recommended panel to clear
cheque bounce cases which constitutes almost 30% to 40% of cases in trial courts.
6. ICT enablement- To streamline the process of justice delivery, ICT enablement of Courts
through systems such as Legal Information Management and Briefing System (LIMBS)
is a web-based application created by the MoL&J, becomes crucial.
7. Early Finalisation of Memorandum of Procedure (MoP). – Memorandum of Procedure
was drafted in 2016 to set a fresh set of guidelines for making higher judiciary
appointments. This will streamline the process of judicial appointments and ensure the
vacancies are filled on time while ensuring only judges of high calibre and impeccable
integrity are appointed to the higher courts.
8. Involve both- Judiciary and Executive in Judicial Appointments (Law Commission
suggestion): Parliament should pass a law restoring the primacy of the CJI in judicial
appointments, while ensuring that the executive played a role in making judicial
appointments which will ensure balance of power.
9. National Judicial oversight committee: The internal regulatory system in Judiciary must
be improved with Prompt disciplinary actions taken in cases of misconduct. A National
Judicial Oversight Committee should be created by parliament to scrutinize the
complaints and investigation in cases of misconduct.
10. Judicial Standards and Accountability Bill 2010: The Judicial Standards and
Accountability Bill 2010 brings a set of legally enforceable standards to uphold the
dignity of the judiciary and Fix Judicial accountability. Ex: Odisha high court became
the first to publish annual reports.

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11. The Judges (Inquiry) Bill, 2006: The bill proposed a National Judicial Council (NJC) to
conduct inquiries into allegations of incapacity or misbehaviour by High Court and
Supreme Court judges by people.
12. Adoption of a charter ‘Restatement of Values of Judicial Life’ by Supreme court in
1997
13. Bangalore Principles of Judicial Conduct in 2002- The principles bring ethical
standards to the conduct of the judiciary which leads to better Justice Delivery.
14. Open courts- The principle of open courts should be applied in Justice delivery to ensure
transparency and accessibility of justice delivery to the public. Live streaming of court
proceedings . Ex: SC started live telecast of proceedings of constitutional benches.
15. Post retirement appointments- There should be a cooling off period after the
retirement of judges before accepting any public office. This can resolve the issue of
Quid-Pro-Quo appointments. Example- Retired CJI nominated to Rajya Sabha
immediately after his retirement.
16. Judiciary under RTI- SC in Subhash Chandra Agrawal case CJI is declared as a public
authority under the RTI act .
17. Judicial pendency- CJI said, The problem of pendency of cases is “intensifying” due to a
lack of the sufficient number of judges, the government must clear names recommended
in a time bound manner . Memorandum of Procedure 2016 can help in the same.
18. Proactive steps- SC’s AI-based platform SUPACE, e-Courts mission, and FASTER (Fast and
Secured Transmission of Electronic Records)
19. Promoting Alternate Justice delivery mechanisms- As former CJI NV Ramana pointed
out , ADR mechanisms should be promoted to ensure timely justice delivery and reduce
burden on higher courts. Ex: Himachal Pradesh High Court made compulsory
conciliation at pre litigation stage which proved effective to reduce burden of cases on
the Judiciary.

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20. Tele law- Tele law can help improve accessibility of justice delivery to the common man
thus increasing the reach of institutional justice delivery. Ex: MoL&J recently announced
free of cost tele law services for all citizens, implemented by NALSA.

Contempt of court

Context
Judiciary in India has to take a lot of harsh decisions, due to which it is often criticized
heavily. While healthy criticism is necessary in a democracy, there needs to be a line
between criticism and contempt.
Similarly, Judiciary also needs to have the tolerance to take healthy criticism, instead of
misusing contempt of court provisions.
So, this issue will always remain in news due to contempt cases filed on activists, stand up
comedians etc. The aspirant needs to know and understand the issue to provide useful
solutions to it.

Definition:
Contempt of court is the act of disrespect or disobedience to the dignity or the authority of
the court. It seeks to protect judicial institutions from motivated attacks or unwarranted
criticism and provides a mechanism to punish those who lower the courts authority.

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 Provisions for contempt of court-

1. Article 19(2)- Contempt of court is one of the reasonable restrictions under Article 19(2)
i.e. freedom of speech and expression.
2. Article 129- The article confers on the Supreme Court the power to punish contempt of
itself.
3. Article 215- The article confers on the High courts the power to punish for contempt of
itself .
4. Contempt of courts act 1971- The law gives statutory backing to the concept of
contempt of courts. It further defines Civil Contempt as the wilful disobedience to any
judgment of the court and Criminal contempt as an act which tends to scandalise or
lower the authority of the court; Tends to interfere with the due course of any judicial
proceeding; Obstruct the administration of justice.

Arguments upholding Contempt of Court Provisions-

1. Uphold court honour: Judiciary is the guardian of the Constitution hence its stature
must be maintained. In Pritam Lal v. The High Court of M.P, SC held that it is the
duty of the Court to punish the contempt act to preserve its dignity.
2. Ensures Public trust in judiciary as judiciary is responsible to protect the
Fundamental rights of people.
3. Violates Rule of Law: The wilful disobedience of court’s order violates the principle of
Rule of Law which becomes essential to uphold the basic structure of the Constitution.
4. Equal application of law: The contempt of Court becomes a potent tool against the
rich and the powerful by ensuring compliance to the court orders passed against
them.

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 5. Effective functioning of the Judiciary- The contempt of court helps in ensuring the
effective functioning of judiciary as an institution. Ex: contempt proceedings against
Justice Karnan for his demeaning behaviour .
6. Reasonable restriction: Contempt of court is accepted as a reasonable restriction
under the Article 19(1) of the Constitution putting limits on practice of freedom of
speech and expression.
7. Law Commission (274th report): There are several inbuilt safeguards to protect
against the misuse of the law . Ex: Truth as a valid defence under Contempt of
Courts act 1971.

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 Arguments against retaining Contempt of Court

1. Against Free Speech and Expression – Contempt of court can be used to enforce
silence on the people for any criticism against the judiciary. This leads to a chilling
effect on free speech.
2. Discourages whistle blowers- Enforcing silence over the whistle blowers discourages
people to come forward and point out the shortcomings in Judiciary.
3. Hampers Judicial accountability: Judiciary is accountable to the public at large for
its role in justice delivery. Thus, criticism and questioning becomes crucial to ensure
Judicial accountability.
4. Against democratic ethos- Constructive criticism is crucial in a democracy. It is
because of the same ethos, countries like the UK have done away with the concept.
5. Vague and wandering jurisdiction: Justice VK Krishna Iyer pointed out that the law of
contempt of court has a vague and wandering jurisdiction as the Grounds such as
scandalizing or tending to scandalise the court are open-ended and prone to misuse.
6. Against the Principle of Natural justice: No man should be the judge in his own
case. But in contempt cases, Judges are the aggrieved party, prosecutor, witness and
judges in their own cases.
7. International practices: In countries like the UK , ‘scandalizing the court’ as a ground
for criminal contempt has been abolished in 2013 . In Canada, Courts are free to be
criticized unless there is an imminent danger to justice delivery.
8. Personality protection- The main aim of contempt jurisdiction is not to uphold the
personal dignity of the Judges for which it is often used.

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 Judicial pronouncements

Context:
Each Judgement is not to be remembered as it is. Instead, the points from each judgement
are to be utilized according to the question being asked by UPSC. So, don’t go for
remembering each judgement in one go. Keep writing some of them in mocks, and you will
be able to remember the necessary ones in the actual examination.

1. PN Duda vs ShivShankar & Ors case- SC observed that judges cannot use the
contempt jurisdiction for upholding their own dignity. Criticism cannot be
restricted until it hampers the administration of Justice.
2. Indirect tax practitioners association vs RK Jain case- SC held that truth is a valid
defence in matters of criminal contempt.
3. UK’s Spycatcher judgement- “Judiciary can’t be protected as it becomes suspicious.”

Way forward
1. Reduce discretion: Contempt power shall be exercised following certain principles
which will help reduce discretion regarding the same and make it more consistent with
democratic principles.
2. Contempt of court rather Contempt of Judge – The personal criticism and
comments on Judges should not be a ground for using against people. It should only
be used if it affects Justice delivery. For personal contempt, the Judges can take
recourse to regular mechanisms such as defamation etc.
3. Proportional Punishment: The punishment under the contempt of court law must be
proportional to the crime as the punishment should also lead to effective deterrence in
the society regarding the same.

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 4. ‘Mens rea’ – The elements of ‘Mens Rea’ or a ‘Guilty mind’ can be incorporated in
the act which becomes more consistent with the issue of obstructing Justice delivery
and wilful disobedience to court orders. This means that punishment should be given
only when there is a criminal intent behind intentions.
5. Mulgaonkar principles – Principles put down in the S Mulgaonkar v Unknown (1978)
case must become the guiding principles in ensuring proper use of the law of
Contempt of court. According to it, the court will act with seriousness where Justice
is jeopardised and if it is a calculated attack to destroy the Judicial process . The
court is willing to ignore venial offences.
6. Justice AP shah- Criminal contempt is asynchronous with our democratic system
where Freedom of Speech and Expression is a Fundamental rights. Thus, Criminal
contempt must be done away with.

Conclusion
The Law Commission has pointed out that as there are adequate safeguards present in
the Contempt of Courts act 1971, there is no sense in tinkering with the law . However,
the power can be used sparingly and the proceedings should be initiated within one
year.

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 Women in Judiciary

Issue
There have been only 11 women SC judges since 1950 . CJI Ramana presented his wish to
see 50% occupation of judiciary by women. A parliamentary question about women in
Judiciary brought to light the fact that 5 High courts(Manipur, Meghalya, Patna, Tripura,
Uttrakhand) have no women judges.

PYQ( 2021)
Discuss the desirability of greater representation to women in the higher judiciary to ensure
diversity, equity and inclusiveness. (Answer in 150 words) 10

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 Need for women in Judiciary

1. Constitutional realization: Gender Justice and positive discrimination becomes a

goal enshrined in the Constitution through Articles 14,15,16,39 and 42 .
2. Quality of Justice: Women judges bring Empathy and sensitivity to Justice delivery
which can improve the quality of judgements.
3. Public trust: Women judges on benches hearing cases of public interest will ensure a
more holistic view of the issue inculcating the concerns across gender divide thus
ensuring public trust is maintained. Example- Justice Sujata Manohar was a part of
the bench which created the Vishakha Guidelines for Protection of Women against
Sexual Harassment at Workplace
4. Accessibility: Women judges and Advocates will make justice delivery more women
friendly thus improving accessibility to the same . Ex: Women advocates taking up
cases related to gender crimes.
5. SDG commitment: India has global commitments under SDG 5(Gender Equality) and
SDG 16(Women’s Representation in Public Institutions)
6. Gender sensitivity- Women in judiciary bring gender sensitivity which is often absent
in courts dominated by men in all spheres.
Read: Important Judgements which changed the face of Indian Justice System:
https://yourstory.com/2018/01/8-landmark-judgements-that-changed-the-course-for-women
-in-india

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 Issues faced in greater representation of Women in Judiciary

1. Gender insensitivity: Justice delivery system is often insensitive to women related

issues and concerns . Often judges and advocates are heard passing patriarchal
observations which impinge upon the Fundamental rights of women. Recent CJI
comment of asking rape accused to marry the victim shows insensitivity towards
such issues.

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 2. Dynamic and Evolving rights- There are certain rights that are evolving through
social change as well as judicial developments, for which holistic gender views are
required . Rights such as bodily autonomy, access to reproductive healthcare, period
poverty etc. Ex: Surrogacy rights.
3. Gender injustice issues- There are certain issues that focus on gender injustices in
society. Women advocates and judges are better equipped to deal with such issues.
Ex: Marital rape.
4. Extension of societal mindset: Judiciary is evolved out of society. Thus it often
represents the prevalent social mindset. This may include patriarchal mindset which is
often portrayed by certain observations. Ex: Recent Madras High Court observation
about removal of Mangalsutra amounting to mental cruelty.
5. Women education and participation- There has been an increase in women studying
and practicing law as a profession. However it still lags behind male participation in
the profession.
6. Poor court infrastructure- Indian judicial infrastructure is not women friendly as
basic facilities such as hygienic women toilets, sanitary napkins etc. are not
present in most court premises, as also pointed out by former CJI Ramana.
7. Opaque collegium system- The collegium system works under an opaque and behind
the door system of recommending judges. It can often reflect the inherent biases of
judges against women appointments.

Way forward
1. Data based planning: Collecting data about women judges serving in lower judiciary
as well as eminent women lawyers practicing in High courts and Supreme court. A
long term plan based on the same can be devolved based on the same to increase the
number of women appointments.

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 2. Transparency in collegium: The collegium must follow the Memorandum of
Procedure 2016 to help ensure transparency in its working, while taking view on
women suggestions for higher posts.
3. Gender sensitization of judges: Judges having a patriarchal outlook and
understanding of the society, should be sensitized to prevent them from passing
orders and observations that lowers the dignity of women in sensitive cases. Ex:
Former Attorney General Venugopal recommended Courses on gender
sensitization for judiciary and police forces.
4. Women facilities- Facilities set up under law such as Creche facilities under Maternity
benefits act, social support systems etc. must be set up in court premises to ensure
women do not face difficulties while practicing law.
5. Retaining women in profession: Governments should rationalize salary and
allowances of lower judiciary and provide security of income to female lawyers to
reduce uncertainty.

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 6. Societal mindset about women in Judiciary: The social mindset about women
working in law as a profession must be changed . This can be done by roping in women
in the Judiciary as role models for the larger society. Ex: SC Senior lawyer Karuna
Nundy or Justice Bela M Trivedi.
7. Affirmative action: Higher judiciary should also have horizontal reservation for
women such as subordinate judiciary without diluting merit . Ex: Rajasthan
Government has 30% reservation for women in Rajasthan Judicial Services i.e. for
the district judiciary .

Conclusion
Increasing women participation in Judiciary is crucial to lead to substantive justice in the
society and bring women to the forefront as protectors of Justice and Upholders of
Constitution in Indian democracy .

Tribunals

Definition:
A tribunal is a statutory, quasi-judicial body established in India by an Act of Parliament or
State Legislature to resolve in a speedy, cost-effective and efficient manner the matters that
are brought before it. It performs a number of functions like adjudicating disputes,
determining rights between contesting parties, making an administrative decision,
reviewing an existing administrative decision and so forth.

o History- Tribunals were not part of the original constitution, it was

incorporated in the Indian Constitution by 42nd Amendment Act, 1976
incorporating Part XIV-A of the Constitution on the recommendations of
Swaran Singh Committee.

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 ▪ Article 323-A deals with Administrative Tribunals.
▪ Article 323-B deals with tribunals for other matters.

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 Advantages of Tribunals for Justice delivery

1. Flexibility: Tribunals are not restrained by the rules under the Civil Procedure Code
and the Indian Evidence Act .These institutions follow the principles of Natural
Justice for Justice delivery.
2. Cost and time effective: Tribunals are less formal in functioning and follow a faster
way to resolve disputes than the traditional court. Thus, being more cost and time
effective for Justice delivery.
3. Technical expertise: Tribunals can appoint expert members which can help in Justice
delivery regarding specific matters. Ex: Tax disputes adjudication tribunals.
4. Legally binding decisions: The decisions of Tribunals are legally binding in nature.
Tribunals have powers similar to a civil court, such as issuing summons and allowing
witnesses to give evidence.
5. Reduces burden on courts: Tribunals can take off burden from Regular courts as it
deals with matters of specific interest and pass decisions in a time bound manner.

Challenges

1. Against the separation of powers: Tribunals violate the principle of separation of

powers as both administrative and judicial members are a part of it and it follows
more of an administrative mechanism rather than judicial mechanism.
2. Conflict of interest: Tribunals suffer from the issue of conflict of interest as the
Appointments to the tribunals are done by the executive and executive is also the
largest litigant in the country.
3. Lack of autonomy: Tribunals operate under parent administrative ministries as
these are set up for specific matters handled by those ministries. Thus, they are at the
mercy of these ministries for facilities, infrastructure, and decision-making.

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 4. Lack of transparency: Tribunals suffer from a consistent lack of transparency as the
information on the functioning and decisions is not available in the public fora, their
Websites are seldom functioning etc.
5. Undermines Judicial Authority: Tribunals have been set up by the government for
specific matters. This takes away the power of high courts for those specific
matters and places it on the tribunals. This leads to undermining of Judicial
authority of the High courts.
6. Overstepping Judicial hierarchy- The Appeal tribunals go to an appellate tribunal
and the appeal against that goes directly to the Supreme Court by-passing the
judicial hierarchy of High Courts before the same.
7. Increasing Pendency: Even in Tribunals, the Average pendency is around 3.8 years
which is quite high, defeating the purpose of a tribunal for faster Justice delivery.
8. Multiplicity of Jurisdiction: Tribunals often perform the work done by the ministries
which leads to confusion regarding the same. Also, often there are multiple tribunals
set up to perform the same tasks which leads to multiplicity of jurisdiction.
9. Huge vacancies: Even the Tribunals face the problem of high vacancies and empty
benches which make their functioning difficult and even non-existent in some
benches.

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 10. Reduces SC to merely court of appeal- The order of Tribunals are appealed to in the
appellate tribunals and Supreme court in the end. This reduces the stature of the
Supreme Court to only a court of appeal against the orders of the same.
11. Low awareness and accessibility: There is low awareness about tribunals as
institutions of Justice delivery among the common people. Also, Tribunals are largely
located in the metropolitan cities which reduces the accessibility of the common
people to the same.
12. Delayed awards: The tribunal awards also suffer from frequent delays which defeats
the very purpose of the quick dispute resolution mechanism. Cauvery Interstate
water dispute tribunal was established in 1990 and took 17 years to pronounce its
judgment in 2007.

Recommendations

1. Constitutional protection to Tribunals similar to judiciary- The Supreme Court in

NCLT(2010) judgement observed that Tribunals should be provided Constitutional
protection similar to judiciary to ensure independence and efficient functioning of the
same.
2. Appointment of judicial members only- Only the Judicial members should be
appointed to the Tribunals , doing away with the practice of appointment of
administrative officers.

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 3. No political interference- Tribunals should not only be independent but seem to be
independent. This means there should be no political interference in their functioning
which should be based on Judicial standards and principles of independence.
4. Contempt powers- Tribunals must be provided with contempt powers to ensure
compliance and enforcement of orders passed by them.
5. Judicial hierarchy- Law commission suggests that the appeals to the appellate
tribunals must be taken to the division bench of High Courts thus ensuring Judicial
hierarchy is followed.

Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021

● It dissolves certain existing appellate bodies and transfers their functions (such as
adjudication of appeals) to other existing judicial bodies.
● Transfer of functions of key appellate bodies as proposed under the Ordinance:
○ The Cinematograph Act, 1952
○ The Trade Marks Act, 1999
○ The Copyright Act, 1957
○ The Customs Act, 1962
○ The Patents Act, 1970
○ The Airports Authority of India Act, 1994
○ The Control of National Highways (Land and Traffic) Act, 2002
○ The Geographical Indications of Goods (Registration and Protection) Act, 1999
● Term of office:
○ The Ordinance specifies that the term of office for the Chairperson of the
tribunals will be of four years or till the attainment of the age of seventy years,
whichever is earlier.
○ For other members of the tribunals, the term will be of four years or till the age
of sixty-seven years, whichever is earlier.

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 ● Recent Developments:
○ Supreme Court (SC) struck down certain provisions of the Tribunals Reforms
(Rationalisation and Conditions of Service) Ordinance, 2021.
○ In a 2:1 verdict, the SC struck down certain provisions such as fixing 4-year
terms for members.
○ It relates to the minimum age requirement of 50 for appointment as
Chairperson or Members and fixing their tenure at four years.
○ The ruling came on an appeal by the Madras Bar Association, challenging the
provisions of the Ordinance.
○ The majority verdict said the term of Chairperson of a tribunal shall be five
years or till she or he attains the age of 70, whichever is earlier,
○ And the term of a Member of a tribunal shall be five years or till she or he
attains the age of 67, whichever is earlier.
● Why did SC strike down parts of this ordinance?
○ Security of tenure:
■ Security of tenure and conditions of service are recognised as core
components of independence of the judiciary.
■ It can be sustained only when the incumbents are assured of fair and
reasonable conditions of service, which include adequate remuneration
and security of tenure.

Conclusion

● Tribunals are effective institutions of Jusitice delivery. In the absence of reforms,

tribunals will become bureaucratic boards and ‘Tribunalization of Justice’ will lead to
‘Trivialization of the justice system’ in India. Thus, it becomes important that reforms
are undertaken timely and effectively in the same.

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 Alternate Dispute Resolution (ADR)

Definition:
ADR is the process by which disputes between the parties are settled or amicably
resolved without the intervention of judicial institution and any trial is known as Alternative
Dispute Resolution.
ADR is a mechanism of dispute resolution that is non-adversarial. In ADR competing
parties work together cooperatively to reach the best resolution for everybody.

Mechanisms under ADR

● Arbitration: The dispute is submitted to an arbitral tribunal which makes a decision

(an “award”) on the dispute that is mostly binding on the parties.
● Conciliation: A non-binding procedure in which an impartial third party, the
conciliator, assists the parties to a dispute in reaching a mutually satisfactory
agreed settlement of the dispute.
● Mediation: In mediation, an impartial person called a “mediator” helps the parties
try to reach a mutually acceptable resolution of the dispute.
● Negotiation: A non-binding procedure in which discussions between the parties are
initiated without the intervention of any third party with the object of arriving at a
negotiated settlement to the dispute

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 Advantages of ADR:

1. Less expensive- ADR mechanisms work less formally thus require less formal
functionaries and procedure, thus decreasing the cost of justice delivery.
2. Faster Justice delivery- ADR decisions have No appeal against them. This leads to
speedy dispute resolution .
3. Free from technicalities: ADR mechanisms do not follow a formal technical
approach. Rather it Is based on a more flexible and responsive approach catering to
the individual needs of the parties involved .

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 4. Free and open discussion- Parties to the ADR can voice their differences of opinion
without any fear of disclosure before the court. Thus a more open discussion is done
through the same.
5. Win-Win resolutions: The decisions of ADR are taken based on a win-win model of
dispute resolution where there is no feeling of winner and loser in the parties. Rather,
a compromise is reached.
6. Ease of Doing Business: ADR is a globally recognized method of Justice delivery
through which corporate disputes such as enforcement of contracts etc. can be easily
enforced.
7. Voluntary compliance: The parties involved in the process of ADR on a voluntary basis
have a commitment to the result of ADR i.e. dispute resolution. These parties follow the
orders voluntarily thus increasing the compliance rate to the orders.
8. Global competitiveness: India is not an Arbitration hub which leads to companies
moving to hubs such as Singapore for Arbitration related dispute resolution. This
leads to India loosing competitive advantages over other countries in the business
environment.

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 Link:
https://www.barandbench.com/interviews/vk-rajah-former-attorney-general-of-singa
pore-on-how-india-can-become-an-international-arbitration-hub-interview

Limitation

1. Lack of awareness: There is lack of awareness among people and legal practitioners
about Arbitration as a valid dispute resolution mechanism.
2. Lack of willingness to compromise- The success of Arbitration and Conciliation is
based on the willingness to compromise of the parties . If both the parties are not
willing to come to a common ground, there can be no Arbitration and conciliation.
3. Trust deficit: Litigants often have a trust deficit when it comes to ADR because of
which, People chose to approach the formal judiciary instead of ADR mechanisms.
4. Forced consent- The Decisions of ADR are forced on poor people and women who are
not fully aware of the decisions and their enforcement.
5. Voluntary process: A mutually signed agreement gives effect to the voluntary intent.
Without such an agreement parties can’t be forced to resolve their disputes by ADR.
6. Cases imposed- Judiciary often transfers certain cases to ADR mechanisms without
the consent of the parties or even the ADR functionaries just to reduce burden off the
Judiciary. This leads to inefficient Justice delivery as neither the parties, nor the
functionaries are willing to come to terms.
7. Role of Arbitrator: The arbitrator in a ADR court plays a crucial role in bringing both
the parties on the same ground. If the arbitrator is biased, unskilled or even absent,
the rate of success of ADR falls down sharply.
8. Non resolution of disputes: Only arbitration leads to a binding decision, the rest of
ADR process may not always lead to a resolution. This leads to a question on the
effectiveness of other ADR mechanisms.

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 9. Limited applicability: ADR is applicable only to the issues related to business or civil
disputes and it cannot pass injunctive orders requiring parties to do something. This
limits the scope of applicability of ADR.
10. No scope for corrections: ADR mechanisms such as arbitration have no scope of
appeals which means there is no scope of correcting the orders passed by arbitration
courts. It may lead to miscarriage of Justice.

Way forward

● Ground level ADR- India has certain ground level ADR mechanisms such as Lok
Adalats which must be further promoted and utilized for Justice delivery on ground.
● Expanding scope of ADR: The scope of Arbitration and mediation must be expanded
to several other forms of disputes such as family disputes, civil disputes etc.
● Awareness generation – ADR must be promoted as a potent mechanism for Justice
delivery. Awareness must be generated towards the same.
● ICT enablement of ADR: ADR mechanisms must be tech savvy and through ICT
enablement, mechanisms such as Online courts, E-Lok Adalats, the scope of
pre-litigation mechanisms can be increased.
● ADR as a career: ADR must be promoted as a career among legal practitioners.
Introducing ADR as a specialization in LLB courses, creating trained arbitrators,
mediators, setting up Online ADR courts, Global collaboration to increase avenues for
ADR experts can help promote it as a career.
● Government utilizing ADR: The governments are litigants in around 46% of the
pending cases. Opting for the ADR mechanism can unburden the courts and build a
culture of ADR.
● Enact arbitration and Conciliation (Amendment) Bill, 2018 to fill the legislative
lacunae giving a statutory backing to ADR mechanisms in India.

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 ● Arbitration Council of India: As an umbrella body, the Arbitration Council of India can
perform tasks such as setting standards of Arbitration in India, Appointment of
arbitrators by SC/HC, Electronic depository of arbitral awards etc.

Case studies-
1. The Himachal Pradesh High Court had initiated a “Conciliation Court” pilot project
in the entire state of Himachal Pradesh and asked the trial courts of the civil side to
refer all the cases to Conciliation Courts before the commencement of trial. It was a
substantial success.
2. SAROD-Ports is an Affordable Dispute Redressal Mechanism for all kinds of disputes of
the maritime sector. (Ministry of shipping)
3. Lok adalats- based on Gandhian principles.

Conclusion
Law Commission’s Report 222 suggests ADR mechanisms to fulfil the Need for justice
dispensation. ADR has the potential to make Justice delivery more accessible and efficient
in India, thus making India an ADR hub in the world.

All India Judicial Services

Context:
The All India Judicial Services (AIJS) is a reform push to centralise the recruitment of
judges at the level of additional district judges and district judges for all states. It is
similar to the other All India Services recruitments done by the UPSC and the officers are
assigned to different cadres. Similarly, Judges will be recruited centrally and assigned to
different cadres.

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 ● Constitutional Provisions:
○ Article 312 of the Constitution provides for the establishment of All India
Judicial Service (AIJS), which shall not include any post inferior to that of a
District Judge. The constitutional provision enables creation of the AIJS at
District Judge level.

Proposals for AIJS-

1. Law commission’s 14th Report 1958- It promoted the idea of an All India Judicial
Services for the first time.
2. Law commission’s 73rd report 1978- The report of law commission again vouched for
an AIJS to recruit and assign district judges to fill the vacancies in lower courts.
3. Parliamentary Standing Committee 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.
4. All India Judges association case 1992- SC in this case mooted the idea of
establishing an AIJS to streamline the process of appointing District judges.

Need for an AIJS -

1. Enrich justice quality: The judges at the District Judiciary will be Properly trained
and capable enough to bring quality Justice delivery and Innovation at work . It will
improve the quality of Judgements which can reduce the issue of appeals to
higher courts.
2. Streamline process of Appointments: AIJS will streamline the process of recruitment
and appointments of Judicial officers, based on merit of the officers as well as
willingness to work under difficult circumstances.
3. Attracting talent- The AIJS will attract the best talent that comes out of Law schools
which often opt for private practice or corporate law as the work conditions in Lower
Judiciary as well as promotional opportunities will be improved.

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 4. Addressing Judicial pendency: There is a huge pendency in lower courts which leads
to hampering Justice delivery on ground. Of the 4.7 crore cases pending in
Judiciary, 87% is in the subordinate judiciary.
5. Fill the Vacancy gap: Approx. 24% of seats in Subordinate Judiciary goes vacant.
This leads to lesser benches for hearing cases and eventually contributing to Judicial
pendencies. AIJS will help fill this vacancy gap through a Streamlined and objective
recruitment process which will help appoint judges to lower judiciary as well as make
way for quality judges for higher judiciary in the future.
6. Increase Transparency: The recruitment process of District Judges is non-transparent
as of now. AIJS will increase this transparency thus reducing nepotism and ensuring
the appointment of competent people.
7. Quality of judges: AIJS will be a merit based system of appointment of Judges which
will lead to better quality candidates recruited and properly trained to fulfil all the
responsibilities of their career.
8. Inclusive Judiciary and Social Justice: AIJS will be a central examination, which will
also include reservation for backward castes and classes. This will improve
representation of all sections of society in the Judiciary thus making it more inclusive
and representative of the society.
9. Cooperative federalism: A unified judiciary + uniform laws + an all-India judiciary =
institutionalize the idea of cooperative federalism. Recommended by 2nd ARC,
NCRWC, and NITI Aayog.

Challenges
1. Against Constitutional Separation of powers: Article 233 of the Constitution
provides HC the power to appoint District judges. AIJS goes against this
constitutional arrangement and transfers this power to the executive thus violating the
principle of separation of powers.

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 2. Centre-State tussle: Under the present system, the state has a say over recruitment of
lower Judges. AIJS will lead to a dual system of recruitment where both centre and
state will take exams for the same.
3. Cost and time ineffective: The recruitment and training of Judicial officers at a
central level will increase the cost burden on the centre. Also, the time taken to train
and accommodate the Judges will be higher than traditional methods.
4. State laws- Law and order being a state subject leads to each state having its own
criminal and civil laws. A Uniform All India Services will not be well accustomed to
such state differences.
5. Language barrier: The state judicial procedure based on CPC and CrPC provide for
civil and criminal court proceedings in the language prescribed by the state
government. This can also include local languages for which the All India Recruits may
not be comfortable with.
6. Centralization of Judiciary: AIJS will lead to bureaucratization and centralization of
the Judiciary which will make Judiciary suffer from the same issues such as delays,
corruption etc. which bureaucracy suffers from.
7. Career prospects: The career prospects of Judges working in the lower Judiciary are
affected as the preference to the AIJS officers can undermine the experience
gained by the judges through fieldwork.
8. Competitive environment: All India Exams lead to a competitive environment which
leads to development of coaching, rote learning etc. This may put the weaker
sections having language barriers, financial barriers etc. suffer a disadvantage .
9. Infrastructural constraints: AIJS will not only need a robust recruitment system, it
will also need proper training institutions, practical exposure etc. for which
infrastructure is not suitably present in India.

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 Way forward

1. Law Commission (116th report): Appointments, postings, and promotions to the AIJS
by a proposed National Judicial Service Commission consisting of retired and sitting
judges of the Supreme Courts, members of the bar, and legal academics.
2. Judicial infrastructure development authority- As envisioned by the Government, a
National Judicial infrastructure development authority can help fill the infrastructure
bottlenecks and make recruitment and training infrastructure of AIJS more
streamlined.
3. Concurrence with states- States undertake State Judicial services exams which must be
made concurrent with the AIJS system, to reduce redundancy and make the recruitment
process more effective.
4. 3 language formula- The 3 language formula can be used to reduce the language
barriers across states to make way for AIJS officer being better equipped to deal with
ground level Justice delivery.
5. Best practices- The best practices such as 30% reservation for women in Rajasthan
Judicial services must be implemented in AIJS as well to ensure an equitable and
inclusive Judiciary can be developed.

Conclusion
AIJS is a reform much needed and vouched for by various experts and committees. There
should be a consensus oriented and proper deliberative approach to ensure the roll out
of such a reform is more streamlined and suitable for the demands of India.

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 Free legal aid

Context
Article 39A of the Constitution of India provides that State shall secure that the
operation of the legal system promotes justice on a basis of equal opportunity, and shall in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disability.

Constitutional Provisions: Articles 14 and 22(1) also make it obligatory for the State to
ensure equality before law and a legal system which promotes justice on a basis of equal
opportunity to all.

Institutions providing free legal aid in India

1. National Legal Services Authority (NALSA)- constituted under the Legal Services
Authorities Act, 1987, NALSA promotes free legal aid and acts as an umbrella
institution providing the same.
2. State Legal Services Authorities – Constituted under the Legal Services Authorities
act 1987, State authorities promote free legal aid in the states while acting as
umbrella institutions in a state for the same.
3. District legal services authorities- To provide Legal services in a district.
4. High Courts and Supreme court- Through in-house legal service committees both
HC and SC provide free legal services.

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 Advantages of free legal aid-

1. Access to Justice delivery- Free legal aid improves access to Justice delivery as it
takes Justice to the sections which are disadvantaged or which cannot afford the
same. Ex: Free legal aid to victims of trafficking.
2. Constitutional guarantee (Article 22)- Providing Justice to everyone without any
discrimination and promoting equal opportunity for grievance redressal becomes a
constitutional guarantee.
3. Informed Citizenry- Through free legal aid, the citizens become more aware about
their rights and legal guarantees along with the legal remedies to any injustice done
to them. This promotes an informed citizenry in India.

Challenges for free legal aid

● Lack of awareness – There is a lack of awareness among people about legal

procedures and their basic rights of free legal aid. Merely 1.5 Crore people have
benefitted out of Free Legal Aid from 1987-2016-17
● Quality of Justice delivery: There is a perception that free legal aid compromises
quality as it is done on lower standards as compared to paid legal aid.
● Shortage of Human resources: Shortage of legal practitioners who are working to
deliver free legal aid by the legal services authorities.
● Lack of motivation: The legal practitioners often lack motivation to provide free legal
aid as it is considered a philanthropic activity rather than a Legal duty. Also, despite
being provided with compensation from the public funds, the lawyers often lack
interest in the clients and the experience they will gain from the same.
● Backchannel demands: Lawyers assigned to the clients often ask for money through
backchannels and even compel many innocent clients to pay additional amounts to
them in return for their services which are supposed to be free.

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 ● Lack of standardization: The system for free legal aid is not very streamlined and
standardized. It varies from state to state and from district to district. This leads to
inefficiencies in Justice delivery as often the procedures and work culture varies.

Way forward

● Pro Bono services- Encourage lawyers to provide Pro Bono services to deliver free
legal aid along with their usual legal practice.
● Awareness generation- People should be made more aware about the right to access
free legal aid. This can be done through mechanisms such as Legal aid clinics, Legal
aid awareness drives etc.

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 ● Technological steps- Certain technological steps can be undertaken. This can include
the use of ICT, Big data analytics, Video conferencing, tele-law services etc, . Ex:
Ministry of Law and Justice has recently made tele law services free of cost for all.
● Incentivising lawyers- Lawyers working for Free legal aid should be incentivised with
a decent salary and other additional perks like a priority in appointment processes .
Ex: Make Pro bono services a criteria for elevation of lawyers as judges.
● International experience: Categorizing free legal aid as “Essential services” as
done by several countries like South Africa, Kenya. This will make free legal aid a part
of the service economy making it more accessible and streamlined.

Virtual Courts and E-Courts

Definition:
A Virtual court refers to the digital, video conferencing representation of the court
procedure. Virtual Court is a concept aimed at eliminating presence of litigants or lawyers in
the court and adjudication of the case online.
An e-court or Electronic Court means a location in which matters of law are adjudicated
upon, in the presence of qualified Judge(s) and which has a well-developed technical
infrastructure. In the case of e-court, everything is done in an “online environment” through
the use of the Internet and other Information and Communication Technology (ICT).

Virtual courts- Advantages

1. Address pendency: Virtual courts can aid to clear the backlog at reduced cost and
time as there is no need of a physical presence, court infrastructure, and time
boundations.

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 2. Efficient functioning: Virtual courts are based on ICT tools such as digital databases,
file transfers, PDF judgements which leads to more efficient functioning for routine
judgments and orders .
3. Removing bureaucratic bottlenecks- Paperwork and usual bureaucratic bottlenecks
in physical courts makes the court procedure more complex and increases the time
taken for justice delivery. Virtual courts ensure that such bottlenecks are removed and
seamless functioning of the judicial system is ensured.
4. Real-time case monitoring – The case listed via online mediums can be easily tracked
and monitored . This reduces the time taken for case disposal as delays are
minimized.
5. Court Infrastructure constraints: Online hearings reduces the burden on physical
infrastructure as people do not need to gather in physical courts. Ex: Women Lawyers
arguing through Video Conferencing sitting in spaces with more suitable
infrastructure .
6. Judicial accountability: The court proceedings can be live telecasted and recorded
which increases the transparency of the court procedure and also making the courts
more accountable to the public viewing the same.
7. Data management: Judiciary is a data intensive sphere where large amounts of data
is generated and used in its functioning. Previously this data was stored in the form of
files and papers . But through virtual courts this data can be better stored and made
accessible to the lawyers, judges etc using technologies such as Blockchain,
Management information systems etc.
8. Ease of doing business: Ease of doing business involves efficient enforcement of
contracts which can be easily done through Online dispute resolution and Online ADR
mechanisms.
9. Legal education and awareness- Virtual courts also increase awareness about the
functioning of the judiciary. This leads to legal education as people become more

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 aware about how the system of Justice delivery works. Ex: People watching live
proceedings of SC.

Challenges-
1. Digital divide – India suffers from a large digital divide which means certain sections
have access to internet and related services while other fall behind. This manifests in
the form of Male-Female divide ,Urban-Rural divide or economic divide. Ex: NFHS-5
data suggests 46% women have access to internet while the male access is around
65%.
2. Lack of Human resources training and management – The human resources
working in courts as well as judicial ecosystem are poorly trained and aware about

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 technology and its uses. This makes it difficult to implement the Virtual courts model
universally in India.
3. Low awareness about virtual courts: According to the PRS data, only 40% of cases
were filed exclusively through a computerized system.
4. Cybersecurity concerns – With Online justice delivery involving classified and crucial
personal data of litigants, there remains a cybersecurity concern of data theft or
hacking of the servers.
5. Procedural concerns and misuse- With the positives of technology, there comes
certain challenges such as Deep fakes etc. which can cause severe obstruction of
justice and miscarriage of Justice.

Steps taken by the government-

1. LIMBS: Legal information management and briefing system - LIMBS provides a low
cost web technology access to all the stakeholders involved in a court case in a
coordinated way whereby it provides inputs which are available seamlessly on 24×7
basis as per the defined access rules.
2. Re-engineering committee of High Courts – The committee studies the challenges
and developments in Virtual Adjudication and comes up with reforms to make the
process more streamlined.
3. National Judicial data grid - National Judicial Data Grid (NJDG), a flagship project
implemented under the aegis of the e-Committee Supreme Court of India, is a system
for monitoring pendency and disposal of the cases in High Courts and Subordinate
Courts.
4. E-Court mission mode project – It is a pan India project To provide efficient &
time-bound citizen centric services delivery as detailed in eCourt Project Litigant's
Charter.

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 5. E-committee of SC - The e-Committee was to assist in formulating a National Policy
enabling the Indian judiciary to prepare itself for the digital age, to adapt and apply
technologies and communication tools making the justice delivery system more
efficient and thus benefitting its various stakeholders.
6. Budgetary Allocation: Union Budget 2023-24 has made available ₹7,000 crore for
the e-courts project

Way forward
1. Improving Digital infrastructure: Digital infrastructure on ground can be improved
by Converging with steps such as common service centres to facilitate e-filing and
video conferencing or Digital India scheme.
2. Capacity development and training: Online courses and training modules
designed specifically for judges, lawyers and court staff can be promoted which will
make them better acquainted with Online Justice delivery mechanism.
3. Business process re-engineering: The whole court process must be re-engineered to
be based around digital technologies such as online databases, video recordings as
proofs, video conferencing etc. to make the process of online justice delivery more
streamlined.
4. Creating a user-friendly e-courts mechanism and awareness generation- The
litigants as well as lawyers must be able to access the e-courts easily without any
hassle and must be able to seek justice through online medium. The system must be
inclusive of all stakeholders to make it efficient.
5. Comprehensive Data protection law: A comprehensive data protection law must be
formulated at the earliest to ensure that the data of litigants and important cases is not
leaked and legal remedies are present for any such possibility.
6. Hybrid modes- A hybrid model of Justice delivery can be utilized where a litigant can
opt for Video Conferencing or in-person hearings . Also, the cases must be listed on the
basis of priority and the cases with low priority can be given for VCs.

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 Conclusion

● Virtual courts are a step of the future for which Indian Judiciary must be prepared. A
hybrid model of Justice delivery is the best way to go forward in ensuring that there
is no condition that hampers access to Justice Delivery and an Efficient system of
Justice delivery is ensured.

Collegium system and appointment of judges

Context:
Articles 124(2) and 217 of the Indian Constitution deal with the appointment of judges to
the Supreme Court and High Courts . With regards to the same, the collegium system has
been developed and evolved in India through consequent judgements of the Supreme
Court. There is no mention of the Collegium either in the original Constitution of India or in
successive amendments.

Why is UPSC interested in this topic?

A learned aspirant must know about the appointment process of the adjudicating arm of
the State. Further, the flaws in the appointment process must also be acknowledged along
with giving suitable solutions.
The appointment process is completely judiciary-driven with the executive having no say.
So, this aspect needs to be smartly criticized.

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 Definition:
The Collegium System is a system of appointment of judges/lawyers to Supreme Courts and
High courts and the transfers of judges of High Courts and Apex Court are decided by
a collegium of the Chief Justice of India and the four senior-most judges of the Supreme
Court.

Background of collegium system-

1. First judges case (1982): The Supreme court held that consultation with Chief
Justice by the executive does not mean concurrence and it only implies exchange of
views. Primacy of the Chief Justice in judicial appointment was refused for ‘Cogent
reasons’.
2. Second judges case (1993): The court reversed its earlier ruling changed the
meaning of the word consultation to concurrence. Hence, it ruled that the advice
tendered by the CJI is binding on the President in matters of appointment of SC
judges. It added that it was not the CJI’s individual opinion, but an institutional
opinion formed in consultation with the two senior-most judges in the SC (Birth of
Collegium System)
3. Third judges case (1998): SC on the President's reference (Article 143) expanded the
Collegium to a five-member body, comprising the CJI and four of his senior-most
colleagues. The CJI should consult a collegium of four senior-most judges before
making a recommendation to the President and even if two judges give an adverse
opinion, he should not send the recommendation to the President

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 Issues with the Collegium system-

1. Extra-constitutional or non-constitutional body which has been brought in force by

judgments of the Supreme Court. There is no legal or constitutional backing for the
same.
2. Excluding the Executive- The collegium system completely excludes the executive
from the process of Judicial appointments. The role of Executive is limited to appoint
the candidates recommended by the collegium.
3. Lack of accountability- Collegium system is not answerable to any executive or
parliamentary body which makes fixing accountability over the same difficult.
4. Lack of Transparency- The procedure of working of the collegium is opaque
which leads to a lack of transparency as meetings are held with a closed door and the
grounds for arriving at decisions are not communicated to the executive and the
public at large.
5. Scope of nepotism and favouritism- The collegium system does not provide any
specific criteria for testing the candidate for the post of CJI because of which it leads
to wide scope for nepotism and favouritism.
6. Against doctrine of checks and balance- The three organs of the government namely
executive, legislature and Judiciary work in unison keeping checks and balance over
each other. Collegium system violates this principle as the collegium is not
accountable to the other two organs.
7. Inertia to reform- The judiciary is not willing to let go of the system of Collegium while
implementing more accountable and transparent system. Ex: NJAC introduced was
struck down by the Supreme Court.
8. Inefficient: Collegium has not been able to prevent the increasing cases of
vacancies of judges and cases in courts.

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 9. Against established conventions: The convention of appointment based on seniority
has long been followed but supersession of the same ignores and abdicates this
convention, creating space for subjectivity and individual bias in appointments.

Collegium and NJAC-

Context
To reduce the judicial excess in the name of Collegium system, the NJAC was created.
So, read this topic in the context of the tussle between executive and judiciary.

National Judicial appointment commission (NJAC):

● In 2014, Parliament backed by the State legislatures enacted the 99th Constitutional
amendment act to give birth to the National Judicial Appointments Commission (NJAC).
● It comprised three judges, the Law Minister and two eminent persons to handle the task of
appointing judges.
● The Supreme Court struck down the NJAC through a 4:1 majority verdict citing the
independence of the Judiciary.

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What can be done-
1. Reformed NJAC- The NJAC should be reformed and reintroduced in a way to make
sure that the judiciary retains independence in its decisions while fulfilling the needs of
checks and balances .
2. All India Judicial Services- Introduction of All India Judicial Services to improve the
quality of judges being appointed and ease the mechanism of alleviation of judges to
the higher courts.
3. Timely acceptance of recommendations – The executive must not sit on the
recommendations (former CJI U.U Lalit). The recommended candidates must be
appointed at the earliest to reduce the vacancy of judges.

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 4. Transparency and accountability- The appointment process must become
transparent with the judiciary publishing record of all discussions in the Public domain
while recommending candidates for Judgeship.

Conclusion
As CJI Chandrachaud said, ”No institution in a democracy is beyond the need of reforms”.
The need of the hour is to think of a permanent, independent body to institutionalize the
process with adequate safeguards to preserve the judiciary’s independence guaranteeing
judicial primacy.

Panchayats-

Panchayats are the institutions of Local self-Government at the village level. Article 243-243O
of the Indian constitution provide for Panchayats as the third tier of Governance at the Village
level in India.

Importance of Panchayats for service delivery

1. Participatory governance- Panchayats ensure participatory governance where
people can participate directly through Gram Sabha and voice their concerns and also
make plans to resolve the same.
2. Social inclusion- Panchayats functioning is undertaken without any social exclusion
and all sections, genders of the society play an important role in efficient service
delivery in the same. Ex: Women role in Polio eradication at village level.
3. Accountability- Panchayats being close to the ground have better understanding of
service delivery and are better capable of holding people accountable for the same.
Ex: Society for social audit and accountability in Andhra Pradesh.

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 4. Responsiveness- The Panchayats are more responsive to the demands of the people.
It can act fast, decisively and directly on the problem thus becoming more efficient for
service delivery.
5. Bottom up approach- Bottom up approach of planning and service delivery is crucial
for it to be more efficient and citizen friendly. Ex: NITI Aayog recently suggested that
localisation of SDGs is essential for achieving targets.
6. Functional transparency- There can be better functional transparency through public
participation and awareness at the Panchayats level. Ex: Public disclosures under the
Gram Swaraj Abhiyan.

Issues with panchayats(2nd ARC- Funds , functions, functionaries)

1. Funds
● Inadequate funds with Panchayats- Funds devolved to Panchayats by the States as
per the State Finance Commission grants are Inadequate.
● Conditional grants mechanism- The 14th Finance commission introduced
conditional grants where the grants given to the Panchayats are tied with conditions,
thus not truly available until the conditions are fulfilled. Ex: 15th FC recommends entry
level conditions for local body grants.
● Limited power of revenue generation- Limited power of taxation by imposing cesses
or collecting other taxes. Along with limited subjects to tax upon, there is low capacity
for tax collection by the Local governments.
● Irregular appointment of State Finance Commission - State Finance commissions
are not appointed regularly by several state governments which lead to Local
governments losing on devolution. Ex: 15th Finance Commission makes it mandatory
for states to set up SFCs before 2024.

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2. Functions
● Lack of Functional devolution – The 11th schedule subjects are usually included by
the State under the state powers which affects the functional devolution to
Panchayats. Ex: water supply, sanitation, education etc. handled by states through
bureaucrats.
● District planning committee issues- The District planning committees are
constitutionally mandated to come up with regular plans. However, the states have
not made them functionally capable of fulfilling their constitutional mandate.
● Functional overlaps- There are several specialised bodies which leads to overlapping
functions with panchayats. Ex: Rural development agency in Haryana.
● Scheme implementation- Panchayats are often reduced to just institutions of
Scheme implementation and management thus reducing their stature and
importance in Indian Governance ecosystem.
3. Functionaries-
● Staffing concerns- There is no in house trained staff of the Panchayats and most of
the staff is working on deputation from higher authorities which leads to lack of
accountability and motivation to work for the same.
● Bureaucratization of Panchayats- As Bureaucrats are sitting on important positions
such as BDOs, Zilla Parishad Chairmans etc, The functioning of Panchayats undergo
bureaucratization due to their control over the same. Ex: Gram panchayats sarpanch
going to BDOs for technical approvals and funds.
● Overburdened Panchayats- Panchayats often fulfil the manadate given to them and
also often the work delegated by other departments of the state. This overburdens the
Panchayat machinery and affects its effectiveness.
● Delayed elections- There is an issue of delayed elections and lack of timely and
regular elections to the Panchayats all over the country. Ex: TN panchayat elections
were delayed for 2 years, which resulted in state losing FC grants for local bodies.

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 ● Lack of accountability - Lack of proper accountability mechanisms such as
government audits etc. Also, there is a lack of awareness about accountability
amongst the people through mechanisms such as RTI, Social audit etc.
● Titular women representation- The women reservation in Panchayats has increased
representation, which however still remains titular. The Concept of Sarpanch patis as
proxy sarpanches who place women on the front to take advantage of reservation is
widely prevalent across the country.

Other issues faced by Panchayats-

1. Education criteria for panchayat elections- States have fixed a minimum education
criteria for getting elected to the Panchayats, which goes against democratic
functioning of these institutions . Ex: Education criteria of 10th pass in Rajasthan(now
removed.).
2. Right to recall- Right to recall is the right to remove members of panchayats who are
non performing. There is an increased call of providing right to recall in Panchayats all
over the Country. Ex: Haryana government introduced right to recall in panchayats.
3. Bureaucratic control- Bureaucrats are often given additional charges as Panchayat
administrators due to lack of regular elections and a democratically elected
Panchayat.

Way forward
1. Clarify the 11th Schedule Functions: There are 29 functions that have been devolved
to PRIs under the Eleventh Schedule. There needs to be clarity and proper devolution
of these functions which fulfils the mandate of decentralisation. Ex: Agriculture and
extension services must be devolved clearly to the Panchayats.
2. Activity Mapping: Activity mapping is a quick and feasible way to identify gaps in the
coverage of services by inventorying all stakeholders' activities and locating them
geographically. Kerala showed the way in activity mapping and amended the

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 Panchayat and Municipality Acts as early as 1998. This can be replicated in the rest of
the country.
3. Capacity Building of Panchayats: Capacity building of Panchayats and their
Functionaries should be done to help them become more capable of fulfilling their
mandate.
4. Outsourcing Functions- State Governments should encourage local bodies to
outsource specific functions to public or private agencies through enabling guidelines
and support. This will ensure public-private participation and better service delivery.
Ex: NGO Akshay Patra for Mid-day meals.
5. 2nd ARC Recommendation: 2nd ARC report recommended amendming to Article 243G
to increase the functions of PRIs and go for larger devolution of functions.
6. Suo motu disclosure under RTI- Suo Motu declarations which are the heart and soul
of RTI must become the norm in Panchayats as well. This will improve accountability
thus upholding public trust in the institution.
7. Conditional Grants: The Finance commission recommendation about conditional
grants must be implemented. However these conditions must be judged based on
proper audits and data collection and efforts should be made to help Panchayats fulfil
the same.
8. Funding availability: There have been calls for a progressive increase in funding to
the Panchayats both through devolution and own revenue generation. Recently, in a
meeting with the 15th Finance Commission, the Panchayati Raj Ministry has pitched
for a fivefold increase in funding for rural local bodies.
9. Increasing Grants in Aid: There must be an effort to Increase the grants in aid to the
Panchayats by Centre. Also functional grants such as MGNREGA grants must be
promoted to reduce the burden on Panchayats for funding the same.
10. Functional management- Panchayats must follow the strict devolution of functions
and no other functions delegated by the states without the concurrence of the
Panchayats must be imposed upon the same.

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 11. Technological management: The 15th FC has recommended the integration of
PRIAsoft along with Integrated Financial Management Information System (IFMIS)
of the State Governments and the Public Financial Management System (PFMS) of
the Controller General of Accounts (CGA) . This will help in online auditing of the
Panchayats thus improving accountability and Fiscal responsibility.
12. E-panchayat: The Ministry of Panchayati Raj (MoPR) has launched it as an application
under the e- panchayat Mission Mode Project (MMP) . This can help improved better
integration with technology along with modernisation of local self-government.
13. Institutionalise Social audit mechanism- Social audit mechanisms should be
institutionalised and the awareness regarding the same must be generated to ensure
better public accountability of Panchayats. Ex: Meghalya’s social audit law.
14. Digital India and Bharatnet project- The Digital India and BharatNet project are
capable of ushering in an era of modern panchayats where technology becomes the
norm .
15. Women representation- Women reservation must fulfil the mandate behind it i.e.
women empowerment and social development. Proper training after election, regular
on ground participation and meetings, SHG and NGO support can be some ways to
improve actual participation of women. A recent study by ‘India Spend’ suggested that
Women leaders invested 48% more than Male leaders for village development.

Best practices-
1. Kerela’s Kudumbasree during management of COVID-19 at village level.
2. Bearhatty Gram Panchayat, Telangana ensures access to social security benefits to
all.
3. Dakshina Kannada Zilla Parishad launched a Total sanitation campaign in the
district.
4. Mysuru decleration on Common minimum service delivery by panchayats.

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 Conclusion
Panchayats are the foundational institutions for Good Governance in India. Along with above
given reforms, The People’s plan campaign 2021 focusing on preparation of a Gram Panchayat
development plan through public participation will ensure the Panchayats at the local level
are truly empowered and usher into the era of Gram Swaraj as envisioned by Mahatma
Gandhi.

Municipalities
The Municipalities are the local self-government units in the urban areas. These are
established under the Article 243P to 243ZG of the Indian constitution. There are different
municipal structures for different areas such as Municipal corporation, municipality, Notified
area committee etc. However, they perform the function of Urban local governance.

Issues in Municipalities-
● Special Purpose Vehicles encroaching municipal functions: There have been
several Special purpose vehicles in urban areas which encroach upon the function of
municipalities and lead to a function mismatch. Ex: SPV under the ‘Smart City’
programme taking over functions of municipalities.
● 12th Schedule functions devolution: The functions devolved under the 12th Schedule
in Urban areas are often taken over by the state governments and managed through
bureaucrats and other functionaries, thus reducing the functional importance of
municipalities.
● Additional functions delegated: Along with the traditional 12th Schedule functions,
several other functions are delegated to the Municipalities such as social distancing
during COVID, MSME support etc. This leads to additional burden on municipalities
which have low capacity to deal with the same.
● Titular position of Mayors: In municipal corporations, the mayor is the ceremonial
head, whereas the actual executive powers of the corporation are vested with the State

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 government-appointed commissioner. This leads to duality of control and difficult to
fix accountability.
● Bureaucratization – The Municipal commissioners are the IAS officers appointed by
the government. This leads to bureaucratic control over the Municipalities which
further bureaucratizes the functioning of the institution.
● Parallel Bodies: There are several parallel bodies established by the state government
which performs similar functions as that of Municipalities. Ex: HUDA (Haryana Urban
development agency) performing functions such as water management, waste
collection, property development etc.
● Single centre of power: The power in urban governance is concentrated in a single
centre i.e. a Singular municipality. With increasing size of cities and increasing
population burden, the present model of urban governance falls short on capacity.
● Low Revenue generation: After the abolition of octroi, property tax is the single
largest source of own revenue for ULBs. However, the tax collections are low, due to
wide exemptions, undervaluation of property and incomplete land registers. Ex:
according to data, property tax only contributes to 0.2% of total tax collection in India.
● Unplanned urbanization- Almost everywhere, Municipalities have failed to fulfil the
mandate of planned and sustainable urbanization. This unplanned urbanization shows
the failure of present model of municipal governance. Ex: recent Bengaluru floods and
anti-encroachment drives.

Way forward for municipalities-

● Urban economy promotion: Cities must become individual and independent units of
economy. As per the global model, City Economic Councils in big cities can serve as a
platform for citizen-government engagement.
● Functional decentralization : The 12th Schedule functions must be properly devolved
and responsibility must be fixed on proper level of governance to ensure effective
functioning and management of such institutions.

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 ● Umbrella bodies structure- Municipalities can become the umbrella bodies under
which other bodies such as SPVs, Urban development bodies etc. can function .
● Bottom up approach: Governance can be devolved to the ward and area levels to
inculcate a bottom up approach of service delivery.
● Planned urbanization: The urban development must take a planned model which
includes a standard size of urban areas and development of Satellite areas as separate
governance framework for the same.
● Financial empowerment of ULB’s and civic agencies : Financial empowerment
includes taxation power devolution along with own revenue generation and leveraging
urban economy. Ex: Municipal Bonds can help the Urban Local Bodies (ULBs) to garner
revenue.
● Citizen participation: Improving citizen participation for better trust generation
between citizens and governments, improved sustainability, better service delivery
and accountability. Ex: Open Cities concept can be leveraged along with the use of
digital tools for feedback and reporting.
● Exchange programmes between municipalities – Several municipalities can partner
and follow up through exchange programmes to learn best practices of one another
and improve urban governance. Ex: South Delhi Municipal Corporation with Imphal
Municipal Corporation.

Best practices
1. Pune Municipal corporation- 1st municipal body in country to issue municipal bonds
raising 200 cr till now.
2. Indore municipal corporation- Indore maintains its stature as the cleanest city in
india.
3. Role of panchayats and municipalities during COVID- Groundlevel work, enforcing
lockdowns and essential services, quarantine centres, Nudging against vaccine

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 hesitancy, Synergy with other departments. Kerela model of panchayat level
performance in flattening the curve.

Conclusion
● Municipalities are the foundation of Urban local governance in India. Strengthening
these institutions can help ensure better urban management and sustainable
urbanization which can fulfil the SDGs along with providing Good Governance for a
better future.

Civil Services

● History:
○ GoI Act 1919: provided for Federal Public Service Commission at the Centre.
It was finally set up in 1926 on the recommendation of Lee Commission.
■ This arrangement is carried forward in Article 315 of Indian
Constitution
○ Further, it recommended that provinces can set up their own public service
commission
○ Madras was the first province to set up their public service commission
● Issues in the working of Civil Services
○ Government is increasingly deviating from recommendation of PSCs
without furnishing proper reasons
○ Applies one size fits all approach to various services- Ideally, technical
services should be delinked from common Civil Services Examination
(Satish Chandra Committee , 1988)
○ Abuse of provisions to Article 320 (3): UPSC is menaced by three (troubled)
Czars
■ Technical Czars

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 ■ Managerial Czars
■ Political Czars

Article-320. Functions of Public Service Commissions.

The Union Public Service Commission or the State Public Service Commission, as the case
may be, shall be consulted—
1. on all matters relating to methods of recruitment to civil services and for civil
posts;
2. on the principles to be followed in making appointments to civil services and
posts and in making promotions and transfers from one service to another and
on the suitability of candidates for such appointments, promotions or transfers;
3. on all disciplinary matters affecting a person serving under the Government of
India or the Government of a State in a civil capacity, including memorials or
petitions relating to such matters;
4. on any claim by or in respect of a person who is serving or has served under the
Government of India or the Government of a State or under the Crown in India
or under the Government of an Indian State, in a civil capacity, that any costs
incurred by him in defending legal proceedings instituted against him in respect
of acts done or purporting to be done in the execution of his duty should be
paid out of the Consolidated Fund of India, or, as the case may be, out of the
Consolidated Fund of the State;
5. on any claim for the award of a pension in respect of injuries sustained by a
person while serving under the Government of India or the Government of a
State or under the Crown in India or under the Government of an Indian State,
in a civil capacity, and any question as to the amount of any such award,

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 ○ Emergence of Central Vigilance Commission at Centre has created a conflict of
jurisdiction with the UPSC
○ Mismanagement of examination process
○ Lack of transparency in the functioning of PSCs
○ PSCs follow a negative recruitment policy - it is focused on eliminating
people and not getting the right people in
■ Private sector follows a positive recruitment process
○ Paradigm of recruitment has defied modernisation
● Role of UPSC in contemporary context
○ It must emerge as the central personnel agency, dealing with all aspects of
Human Resource Management of Government (which is presently handled
by Do Personnel and Training)
○ Should move from a largely negative to positive recruitment policy
○ Should invest into psychological profile of candidate along with intellectual
profile
○ Greater involvement of external experts (Lateral Entry suggested by NITI
Aayog)
○ UPSC should emerge as the principle Research and Development
organization in public personnel management
○ One size fits all approach should be replaced by a more job-centric approach
○ There should be better coordination with SPSCs
○ Diplomatic steps with credibility and experience - UPSC can collaborate with
African Countries to train in recruitment
● Problems of State Public Services Commission (SPSCs)
○ In popular perception, they are dens of corruption
○ Substandard quality of membership
○ They blindly follow UPSC

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 ○ State Governments don’t respect the autonomy of PSCs, and have treated
them as their own departments.
○ Absence of formal linkages between UPSC and SPSCs

● Recommendations of 1st ARC for PSCs

○ Atleast 1 member from outside the state
○ Consult UPSC and SPSC Chairpersons before appointing SPSC members
○ 2/3rd Chairpersons of UPSC should be drawn from SPSCs
○ Official members of SPSCs should have held the position of HOD/Secretary
at the Central Level
○ Non-Official members should have 10 years of experience in any
recognized profession
● LATERAL ENTRY

○ Definition: Lateral entry in Civil Services refers to the recruitment of

specialists and professionals from the private sector directly into the
higher positions of the government service

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 ○ Advantages
■ Helps in eradicating two-fold issues with respect to recruitment:
● Selecting the wrong person
● Rejecting the right person
■ Removes lethargy from the working of civil servants by giving them
contract-based roles (3 year role extendable to 5 years based on
performance)
■ Reduces conservative attitude of civil servants
■ Brings the efficiency of the private sector in Government services,
thus ensuring better utilization of taxpayers’ money
■ Brings expertise and specialization in bureaucracy

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 ■ Filling the void: According to Department of Personnel and Training
data, there is a shortage of about 1500 IAS officers. Lateral entry can
help bridge this deficit.
■ Meritorious precedents have been set:
● The Finance Ministry, Reserve Bank of India and even the current
NITI Aayog, which have hired the likes of Raghuram Rajan,
Arvind Subramanian and Arvind Panagriya to name a few.
○ Cons
■ Difference in work culture: Indian bureaucracy is not used to working
in pressure, and might not be very welcoming to lateral entrants
■ No field experience - Private experts do not have any experience in
public administration
■ Lack of competitive salaries
■ No permanence in hiring- it is difficult that a seasoned professional will
leave her job to work on a contractual basis
■ Lack of acceptance in bureaucracy
■ Demotivation within seasoned bureaucracy
■ Administration is already top-heavy
■ Profit motive vs Service Motive- Private individuals might not always
work for the best interest of the public
■ Lack of transparency in recruitment- Due to immense subjectivity, it is
difficult to establish transparency in lateral entry recruitment
○ Way Forward
■ Bring in Sector Specialists from various spheres to the administrative
positions in Government
■ 2nd ARC 10th Report(Refurbishing of Personnel Administration)-
● Lateral entry as done in the past on an ad hoc basis should not
continue and the process should be ‘institutionalised’

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 ● The Central Civil Services Authority should be entrusted with
the task of identifying the posts at higher management level
where induction of outside talent was desirable.
■ Lateral entrants should have mandatory ‘district immersion’ ,
serving at least five of their first ten years in field postings.
■ The key skills, qualities, and experiences a particular role requires
must be objectively decided.
■ Transparency in recruitment procedure

Conclusion:
Lateral Entry , if implemented in a fair and unbiased manner, can upgrade and enhance the
process of Governance manifold. The need of the hour is to institutionalize the process and
take maximum advantage of public-private partnership.

● CIVIL SERVICE REFORMS

○ Reforms in Recruitment:
■ Mainstream lateral entry and weaken cadre- based system
■ Separate technical services from Civil Services Examination

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